treat them well

TREAT THEM WELL

On the most moving lines ever written is not found in a book but on an epitaph or the writing on a gravestone in Kohima. The lines will even the dispassionate of citizens. It reads

When You Go Home, Tell Them of Us and Say,

For Your Tomorrow, We Gave Our Today

The words are attributed to John Maxwell Edmonds, an Englishman who lived between 1875 to 1958. It describes how those who defended India from the attack of the Japanese felt while laying down their lives for the same of nation. This couplet speaks about how the persons staffing the frontiers of the nation do not think twice to give up their lives to protect those who are living inside its borders.

A world without war is an ideal state. A boon, which every pacifist of every generation, has been seeking for. Alas, it is not to be. It is good to believe in one’s neighbours but it is better to be on guard too. The lines attributed to Oliver Cromwell,

Put your trust in God, my boys, and keep your powder dry!"

holds good for every country.

Freedom, safety and comfort enjoyed by those within the borders come at a price. A price so precious that it is to be remembered as long as the freedoms are protected. In an ordered civilised society, the direction is given by the legislature; the implementation of such direction is with the executive and the power to check any abuse by either lies with the court. All these can exist only if the Jawan gives up his comfort and family behind and takes up the lonely vigil on unfriendly turf surrounded by hostile environment. India takes pride in wresting control of the highest battlefield in the world, the Siachen. It is siachen that more soldiers die due to the hostile environs than to the enemy ammunition. As long as the jawan is in active service, he is well looked after. After spending the prime of his life in such environs, when he returns to his country to hang up his boots and seek for peace, he is rudely told to forget his dreams.

The case of Captian C.S. Sidhu, a retired short commissioned officer is one such. This officer from Punjab lost his right arm, while on duty, on the high altitudes on 21^st of November 1970. On discharge from active service, the least he would have expected is a few thousands to keep his head above the water. The country repaid its debt to this officer by granting him Rs. 1000.00, yes, a princely sum of rupees one thousand only, per month toward pension. When he moved the court and was granted his rightful due, the Union of India decided to take the matters to the Supreme Court of India.

An institution, which has been structured to tower over the others of its class, in the other parts of the world. An institution, perched far away from many part of the country, and if one may add, steadfastly refusing to come closer, facing the effects of docket explosion, is unfortunately constrained to shoo away litigants from its doors at a rate faster Virender Sewag cracks his cricket tons. When the Union Challenged the order of the Punjab and Haryana High court granting pension to this officer, it faced a bouncer, more deadly than the one seen on the cricket field. A bench consisting of Markandeya Katju and A.K. Patnaik JJ are said to have remarked

“If a person goes to any part of Delhi and sits for begging, he will earn Rs 1000 every day and you are offering a pittance of Rs 1000 per month for a man who fought for the country in the high altitudes and whose arm was amputated? “Is this the way you treat those brave army officers? It is unfortunate that you are treating them like beggars. ”

There is a lot of acidity in the words. Words have their limitations but it should be remembered these words are no less important than those found in the Kohima graveyard.

In the United States of America, a veteran of the army is respected everywhere he goes. President Abraham Lincoln remembered them in his second inaugural address to the nation. He exhorted the nation to treat the veterans in an exemplary manner. He said, it is the duty of the United States

To care for him who shall have borne the battle, and for his widow and his orphan.

The government has a separate department looking after the interest of those who have been in the armed forces. It is the called the Department of Veterans Affairs. Similarly, the United Kingdom has dedicated a day, the 11^th of November as Remembrance Day. In Russia, there is of couples visiting a war memorial on the day of their marriage. New Zealand declared 2006, the 90^th anniversary of the Gallipoli campaign during the first world war, as the year of the veteran. Singapore, a country small than Tamil Nadu has taken good of its armed forces. Their potential is used in national building. It is an unwritten rule that when a wounded veteran enters a public transport system in Europe, those sitting rise and give up their seat for the same of a person who has lost his limbs in the cause of his nation. A similar tradition existed in the Madras Bar too, when the seniors enter the court hall, the junior stand up and offer their seats. The latter would assume his chair only if the former refuses to sit. Like the nation, which has forgotten its soldiers, this tradition too, has unfortunately been forgotten.

It is with great anguish that one sees a brave solider walking up to the dais and giving up his medals and decoration, which he proudly received a few decades ago because the nation refuses to pay them well. The armed forces have been demanding “one rank one pay” for a very long time. Due to a very queer logic of service law, which the armed forces alone suffer from, a person holding the same rank will draw a different salary from his colleague. Consequently, the pension received by two persons of the same rank will be different because they retire at different points to time. An IPS officer or an IAS officer of the same cadre has the same pay. Closer home, a puisne judge who has just about to retire would be on the same pay scale as the one most recently appointed. These rules do not apply for the armed forces. Their demand sounds reasonable to every one other than those who actually matter. If it were a question of money alone, all that the jawans would have to do is to, receive pecuniary advantage from the nation’s enemy. They did not, they are not and they will not do so because honour does not have a price at all. The price that the unknown jawans and officers are paying is the lack of a proper salary. They know of no better way than to give the medals received by them. The army loathes to fight in an internal insurgency because they are taught shoot-to-kill and not to control an unruly mob. Even in acute cases of law and order, the armed forces refuse to step in because if they were to shoot they will be killing the very citizens they have sworn to protect.

The father of the nation, Mahatma Gandhi observed in a different context,

A nation's greatness is measured by how it treats its weakest members.

Would you not agree, if one has the audacity to add to these words, one may very humbly say,

A nation's greatness is measured by how it treats its weakest members and its armed forces ?

strange thefts

STRANGE THEFTS

The lawyer on the criminal jurisdiction comes across many an interesting case. A failed divorce litigation might end up in a murder or assault charge. A fight for water from the tap of the local municipality, if and when released from the water tanks and when found potable, might become a source of criminal prosecution. If these tangible things are not enough, a lawyer can defend a client accused of stealing electricity and if convicted, a truly shocking scenario. A lawyer dealing with those accused of crimes does live in interesting times. It is not known if the narration is entirely true but it is said the customs authorities charged a man under COFEPOSA because he had on his person the business card of a famous lawyer practising on the habeas corpus jurisdiction.

If this is strange, stranger is the theft that occurred in Sweden. In a shoe store at Malmo, Sweden, a complaint had been lodged that a couple of thieves had broken into the shop and had stolen 7 shoes. Stealing a pair is not surprising, what is, is that the thieves had stolen 7 left shoes alone. The theft was considered serious enough to put a detective on work and he caught two persons answering the description. When asked why they had stolen seven shoes which would fit one foot alone, the thieves are said to have replied that they had planned to steal seven right shoes from the neighbouring country of Denmark.

If this single shoe theft is queer, one does not know how to describe the theft that took place in the Royal Oak pub in Southampton. In January 2007, this watering hole was full of customers. One of the customers ordered for a lager beer, excused himself and went to the rest room. This is most certainly not an unusual event.

It was only when the pub was closing down, did the owner realise that one of the urinals that he had installed for the use of his customers had gone missing! The suspect, who is yet to be traced, though a hidden camera had recorded his entry and exit from the toilet, was seen with a bulging bag. The thief had expertly removed the urinal from his fixture and is suspected, to have dumped it into his shoulder bag and walked away with his, now, prized possession. Aren’t the lawyers in Chennai lucky that the condition of the restrooms are such that one cannot stay inside long enough to steal a urinal.

Even if stealing a urinal is strange, the case of Reginald Sedgwick is strangest of them all. Reginald was accused of having stolen a railway station!

The City of Clekheaton is situate in West Yorkshire. It was a mill town like Tirupur and Coimbatore and Manchester. Like these cities, the textile industry faced acute recession. The only difference is while the rest have survived, the weavers of Clekheaton did not. With the fall in business, so did the infrastructure. Then newly created statutory body, The British Railways, decided to cut down its heavy losses. The ways and means of achieving it was left to Dr. Richard Beeching.

Unlike the world’s largest employer, the Indian Railways, which believes in serving, introducing and losing money on existing and new sectors, Dr. Beeching as the Chairman of the British Railways recommended, in 1955, that British railway stations, which were not being used regularly, be closed down completely. The report was implemented with almost all sincerity.

Within a few years, 15,000 kilometers of tracks and 3000 stations were removed from the railway map. The Central Railway station of Clekheaton was one such. After the last passenger train ran across its lines on the 12^th of June 1965; the station was closed down.

A closed down station can be a source of nuisance, both public and private, as seen in many parts of India in general. This affliction visited Clekheaton too. The solution was found in requiring the services of a few demolition men. In august of 1971, British Rail contracted for clearing the site. The contractors were permitted to break down the station, remove the materials, sell it and retain the proceeds towards their remuneration. The contractors were identified and contracts were signed.

To the shock and surprise of the contractors who were gleefully polishing their demolition tools, when they arrived at the station, they found the station was missing. Apart from the two under bridges, all the rest over the ground had vanished. The railways swung into action. A detailed Investigation was launched. It was found the entire railway system - stone, timber, metal, railway track, chairs and even the buffer stops had been systematically dismantled and sold by Reginald Sedgwick. He was tried for this offence but acquitted for lack of evidence!

If the modus operandi and tracing of these thefts are strange, the manner in which John McCain, a sentor in the United States of America treated the thieves of his wife’s credit card is amusing.

In 2004, John McCain's wife learnt that her credit card was stolen nd it was being used by a gang of criminals to make purchases. The criminals went on a shopping spree and a huge bill landed on her table. On seeing the expenditure, John McCain, a presidential contender in 2000, quipped,

"To those men I have only this to say, thank you and God bless you! You were spending a lot less than my wife was!

Would you not agree sometimes a theft can be a blessing in disguise?

TIME TO DISCOVER DONNE IN INDIA

TIME TO DISCOVER DONNE IN INDIA

John Donne is oft quoted author but none give him the credit. He wrote a book titled Devotions upon emergent occasions and several steps in my sickness – mediation XVII in 1624. In this work, he writes: -

All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated...As therefore the bell that rings to a sermon, calls not upon the preacher only, but upon the congregation to come: so this bell calls us all: but how much more me, who am brought so near the door by this sickness....No man is an island, entire of itself...any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee. (underlining supplied)

Donne’s words have survived the eternal destroyer, time , because they set forth the truth. Donne would have known the advantages of a well-established civil society. For the simple reason, he belonged to the Catholic faith when the English society, all round him swore by Protestantism. A caveat has to be entered here on the language used by him. The usage of 15^th century England made him say No Man is no island. The times in which Donne lived did not recognise the rights of the second sex.

The legitimate assertion by those belonging to the female sex to their rights has led to gender neutralisation of the language. It is no more Chairman but Chairperson. No more, do international rights documents to Rights of MAN but Rights of a HUMAN BEING.

The step towards equality amongst persons has taken slow but steady steps from regimes dictated by religion to “rights-dictated” ones. The demand for political equality is such; even dictators have started swearing upon democracy and claim to be representatives of the people.

In this milieu, the world, its constitute unit – the State/nation, its sub component – the society, have forgotten entirely about a sizeable portion of its population – the transgenders. This term is used to describe people with conflicts or questions about their gender. They include people who are born male but think of themselves as female, or vice versa, or people who are preparing for a sex change operation, or those who have had a sex change

An unofficial survey undertaken in India has placed the number of persons belonging to the Third sex or transgenders at 500,000 – enough to elect a member of their own to an assembly.

Clamor was raised whether or not one should have a caste census but none thought about a census, which will include transgenders too. The slogan for Census 2011 - the 15^th census in India - is “our census, our future”. Yet the instructions given to the census takers merely states, “Eunuchs and hermaphrodites will be counted with males and entered under column 11”. So much for India’s claim about no person shall be denied equality before law and equal protection of law.

By classifying the first sex, i.e. the male with the third sex, the transgenders; law does not bring about justice to this special category of persons. Attempts are being made to integrate the physically challenged and mentally challenged persons with the mainstream of the society. The voice of the sexually different are either suppressed or completely ignored. The eunuch has been at the receiving end for too long. Their voices are not heard or if heard, mocked at. The law being made by either of these two genders does not address the issues faced by the third. AIDS and sexually transmitted diseases rip through the third sex. Their right to a good health system is lacking because they are neither male nor female. Back room “sex change” operations put their lives at peril. If right to life is an ingredient of article 21, a transgender, as a person equally entitled to it.

The courts, in the past, have been insensitive. The Madhya Pradesh High court set aside the election of Kamala Bua because this Mayor from Katni district was elected in a constituency reserved for females, when Kamala was categorised as a male by the Census. Yet, the fighting spirit amongst transgenders has fortunately continued. Shabnam Mausi, a transgender had since been elected to legislative assembly from Sohagpur. She represented her constituency from 1998 to 2003. It is true that the judgment of the Delhi High court in Naz foundation case did give relief to those of different sexual orientation, yet it opened the doors for being attacked as a case where the judges legislated adn rewrote teh Indian penal code.

Transgenders cannot help being that way. They have been created so. They cannot be wished away. They are a part of the Indian Society as much as its male and female citizens. Sadly, neither the law nor the lawmakers have taken note of this.

The winds for amending the law have started. France became the first country in the word to remove transgender identity from the list of mental diseases. UK has made its attempts in enacting the Gender Recognition Act, 2004. In 2009, a bill has been introduced in the House of Commons in Canada to amend the Canadian Human Rights act and the Criminal Code. This bill, if it becomes a law, a very distinct possibility, it will provide for gender identity and gender expression. It will satisfy the demands of the category of citizens who cannot be called male or female because both these sexes consider them so. Gender identity means refers to a person's perception of her/his own gender. It is not determined by the society but by the person themselves. If one can change a name, religion, clothes, manner of speech and all that are personal, why should the law not enable the change in one’s sex?

Laws are not obeyed because it treats the powerful and the fortunate well but because it treats, the unwanted, neglected, ignored including the poor and destitute as equals with the former class.

A law providing for equality amongst all the three sexes if introduced will not be new. It is not a new philosophy in this wonder called India. The religion, which the majority of its citizens claim to be followers of - Hinduism - has recognised the third sex in the society. Apart from Arthanareeshwara – the mixture of Lord Shiva and Goddess Parvati and Mohini – the female form of the male god Lord Vishnu, the scriptures quote of many examples. In fact, Mahabharata records of the protective covering of Shikandi, a character born as female but brought up as a male, to Arjuna. It was with Shikandi, in front, Arjuna was able to overcome the indomitable Bheeshma. Shikandi is brought to battlefield of Kurukshetra by none else than that glorious and colourful avatar of Vishnu, Lord Krishna.

The other religions of the world dictate equal compassion to every creation of the almighty.

If one belongs to teh Christian faith, the power of the Lord even before one is born is clearly set out in Jeremiah 1:5 and Isaiah 49:1. Even more fundamentally, the faith believes God created womn aout of man – Genesis 2:23. The flip side is there are persons who argue Deuteronomy 22:5 declares a woman shall not wear a man’s apparel, nor shall a man put on a woman’s garment; for whoever does such things is abhorrent to the LORD your God. The prohibition is to the form of dressing but not thougt or gender identity. For a religion founded on love, the answer comes very easily. If one cannot hate any of his creations but look at awe, as should be done by a creature to the creator, can there be a rejection of transgenders?

Professor Mohammad Hashim Kamali, the chairperson of the International Institute of Advanced Islamic Studies is an Islamic scholar of repute. He has recently written about the inhuman treatment of transgenders in Malaysia. After quoting several verses from The Holy Quran has stated

“Most of this will remain empty preaching unless measures are taken by the authorities, religious leaders -- indeed all Malaysians -- to translate them into appropriate action”. (Transgenders from Islam's perspective Published in: New Straits Times 29 December 2009)

If one were to substitute the word Malaysian for Indian, nay, human beings, it sends a strong message for change in the laws indeed.

In a recent conference held in Chennai, the interpreters of law belonging to the higher judiciary have kick started a campaign to bring about a change in law. Justice Sathasivam has called for a legislation to protect transgenders on the same lines as the SC/ST Act, 1989. This view has been echoed by Justices Dalveer Bhandari and Altamas Kabir and by Ms. Justice R. Banumathi of the Madras High Court. a call has been given for the repeal of the colonial legislations, which clothe legality to inequality and ignore the rights of this category of citizens. Hopefully, this march for equality will face lesser hurdles than those faced by feminists in the 19^th and 20 century.

Wouldn’t u agree, no person is an island and it is time that Donne is discovered in India?

OATH OF BRUTUS

OATH OF BRUTUS

Shakespeare’s “Julius Caesar” demonised the name Brutus. The shock and disbelief with which the falling Caesar calls his good friend – “Et tu Brutus” or “you too Brutus” leaves a lasting impression on the reader’s mind. The term “Et tu” has become synonymous with any betrayal by a trusted friend. The actions of this Brutus have become equivalent for betrayal that the deeds of another Brutus, his ancestor has been totally effaced from memory.

For law and lawyers, Lucius Junius Brutus is more important that the Shakespearian villain, Marcus Junius Brutus. He has achieved something more than being an ancestor of a famous assassin. He was one of the founders of the Roman Republic. He should be remembered today because his actions as a consul and judge.

Five hundred years before the birth of Christ, Rome was a monarchy. The seventh in line of the Tarquin Royal family was Licius Superbus. His son had a unique name. He was Sextus Tarquinius. He lived his life more towards his first name rather maintaining his family one. He ravished Lucretia by forcing himself on her, at the pain of death and violated her person. Unable to bear dishonour, Lucretia informed her father and Lucius Junius Brutus of the act of rape. After completing her narration, she stabbed herself to death.

Brutus, unlike his descendent did not turn the knife in the wound but pulled it out and vowed that he will not rest until Rome becomes a Republic. With this vow, he set upon his king and his family, drove them out of the Kingdom and established the Roman republic. Even before interning the body of Lucretia, Brutus called upon his fellow citizens to decide if Rome should be a monarchy or republic. The popular will was republic and the monarch and his family were banished from Rome for their life.

Lucius Junius Brutus was then appointed as the first consul of Rome along with Collatinus, Lucretia’s husband. The practice of administration of a state through an office of Consul continued for a very long time. This post was the highest civilian post available in the Roman Republic. To avoid anyone staking a claim to the post, two consuls were elected every year. They were to rule the Republic until the election of the next one. It was so powerful and honorable that the French had created a post-called consul in their First Republic.

Immediately after assuming his office, Lucius Junius Brutus took an oath. A tradition that continues till date. Every dignitary of a high office assumes his office only after an oath. His oath was never to allow a man to become a King of Rome. The oath also had a penal clause. It declared that if any one attempted to restore monarchy or become the king, he would be put to death forthwith. Following their consul, his fellow citizens to take a similar oath.

Almost all the written constitutions of the world insist on an oath. It is considered sacrosanct.

The Constitution of India too insists upon a minister to take an oath of office under Article 164 (3). Likewise, every judge of a high court should take an oath as per Article 219. There are similar provisions with respect to the other posts too. While interpreting the idea behind this ceremony of taking an oath, a full bench of Kerala High court held in K.C. Chandy v. R. Balakrishna, AIR 1986 Kerala 116 that

“...no Minister could enter upon his office unless the Governor administers to him the oaths of office and of secrecy. The constitutional requirement of an oath before assumption of office could not thus be treated merely as 'an additional moral obligation' (as stated by Willoughby in Vol. III, II Edn. of 'The Constitutional Law of the United States) without any legal consequences whatsoever. The oath of office insisted upon under the Constitution is the prescription of a fundamental code of conduct in the discharge of the duties of these high offices. The oath binds the person throughout his tenure in that office, and he extricates himself from the bonds of the oath only when he frees himself from the office he holds. Breach of this fundamental conduct of good behaviour may result in the deprivation of the very office he holds. When posts are held, not at the pleasure of the President or the Governor, but during 'good behaviour' breach of the oaths of office and of secrecy may attract the impeachment clauses and when posts are held at the pleasure of the President or the Governor, the termination; at their will, of the tenure may be the possible outcome of such breach”.

Having said so, the bench went on to hold the absence of an oath is a ground for quo warranto but the breach of the oath is not subject to judicial review. Subsequently, several courts have been troubled with litigants who wanted to the oath of office to be adhered to by the person who took it. Consistently, the courts have held it is not justiciable and left it to the good spirit of their appointing authorities, the President and the Governor to take remedial actions for the breach.

Brutus is not to be remembered merely for his oath of abolishing monarchy. It is for an incident followed the taking of an oath.

Within a year of creation of the republic, a coup was attempted. The principal actors behind that coup were the two sons of Brutus; Titus and Valerius. They were arrested for treason and brought before Brutus and Collatinus as the head of the administration.

Having heard the accusers, Brutus turned to his sons, called each of them, and asked, thrice, as to what they have to say for the charge and the proof offered. They did not reply. He did not reserve judgement. He found them guilty.

While a few of those present in court felt banishment would be the right sentence, Brutus did not forget his oath. He declared them to be put to death immediately. The great historian, Plutarch writes

“The tutors immediately laid bold on the youths, stripped them of their garments, and, having tied their hands behind them, flogged them severe h with their rods. And though others turned their eye aside, unable to endure the spectacle, yet it is said that Brutus neither looked another way, nor suffered pity in the least to smooth his stern and angry countenance ; regarding his sons as they suffered with a threatening aspect, till they were extended on the ground, and their heads cut off with the axe.”

Oh, what a man, what a judge and what a sense of adherence to an oath.

Did not Marshall, C.J., in Marbury vs. Madison 5 Cranch 137 (1803) write

“Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”

Would you not agree it is indeed an honour if one were to be addressed Et tu Lucius Brutus?

counts of Shivpuri

THE COUNTS OF SHIVPURI!!!

Alexander Dumas grippingly narrate the trial and conviction of an innocent person in his count of Monte Cristo. The story has a lot of twists and turns. The convict, Edmund Dante, escapes from a dreaded prison called Château d’if. He reaches the mainland, assumes a new identity, Count of Monte Cristo and then starts extracting revenge on his friends. The reason for the revenge is that it was these friends, who jealous of his marrying his childhood sweetheart, falsely framed him and got him incarcerated. All this reads very nice when found in a book. If it were to happen in real life, the system would be blamed for being primitive and unresponsive the needs of its citizens. The protection against such illegal trials and imprisonment is said to be a hierarchically organised judicial system. If despite such system being in place, if a person has to undergo the ordeal of wrong imprisonment, the words are not sufficient to describe the suffering of the individual who had been unfairly imprisoned. Such an incident has recently occurred in India. It was to a case of an innocent being framed but a case of an acquitted being sent to prison.

The tale is set in the heartland of India, Shivpuri. Before it was made a district by the British rulers, it was the summer capital of the Scindias, the Rulers of Gwalior. It gets its name because of a famous temple dedicated to Lord Shiva. It was here that Tantya Tope, one of the architects of the First War of Independence in 1857 was hung. It is to the sessions court of Shivpuri that eight persons, Sughar Singh, Laxman, Onkar, Ramesh, Bhoja, Raghubir, Puran and Balbir were sent for trial. The trial judge found them guilty of offences of murder and rioting and sentenced them to life imprisonment.

Feeling aggrieved by the conviction and sentence, all the eight accused filed an appeal to the Madhya Pradesh High Court. The Gwalior Bench of the High Court found the prosecution had not proved the case beyond doubt and acquitted all of them. Until here, the narration is extremely straightforward. The twists start only hereafter.

The State of Madhya Pradesh filed an appeal to the Supreme Court against the order of acquittal. For some reason, the respondents to this appeal were only the first four of the eight accused namely, Sughar Singh, Laxman, Onkar and Ramesh. The remaining four were not even made parties to the appeal.

By a lengthy judgment, a bench consisting of Justices Dr. Arijit Pasayat, C.K. Thakker and L.S. Panta allowed the appeal on 07.11.2008. The judgment is reported in AIR 2009 SC 586 = (2008) 15 SCC 442.

The Supreme Court allowed the appeals, convicted the accused, and further directed them to undergo rigorous imprisonment. The state swung into action and put all into the jail. It did not occur to the authorities, even for a moment that they had confined to prison persons, whose acquittal was not challenged before the Supreme Court. This is not the end of the tale.

The successful appellants before the high court moved the Supreme Court by way of a review. They specific case was they were not parties and so not heard and still found guilty. The review petitions were dismissed!!!!

Facing the end of the road, Raghuvir used the latest weapon developed by the litigation factory, namely, the judicially evolved but constitutionally absent procedure called Curative petitions. This procedure was evolved by the Supreme Court in a judgment titled Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 177.

It was a case where a constitutional bench headed by S.P. Bharucha C.J held a writ petition does not lie against an order passed by the Supreme Court. Nevertheless, in order to create an avenue of relief for litigants who feel aggrieved by its order, it was laid down that the Supreme Court could be moved again by a “curative petition”. The grounds for moving the court should be that the judgment should suffer from

(1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and

(2) Where in the proceedings a learned Judge failed to disclose his connection with the subject matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.

The twist becomes a twister[1] now.

On 09.02.2010, four judges of the Supreme Court entertained the curative petition and allowed the same. It recalled the order passed on 7^th of November 2008. The content of the order is

“We see that there is a serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this court and the others were not heard. We, are therefore, constrained to recall the November 7, 2008 judgment. Consequently the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be released forthwith.”

It is heartening to read the curative petitions being entertained and allowed. The unfortunate part of the order was that the Supreme Court had released persons who were parties to the Supreme Court and had not spoken a word about the petitioners, whose acquittal by the High court had become final. They continued to languish in prison. It was then they filed a modification petition to the curative petition. Fortunately, it was not dismissed holding there is no such provision.

They sought for urgent hearing of the petitions. It was rejected by a bench presided over by the Former Chief justice K.G. Balakrishnan. The petitions were directed to be listed a fortnight later in May, 2010.

Speaking about imprisonments, Salmond in his 14^th edition on law of torts at Page 178 said a person is under false imprisonment if

“The act of arresting or imprisoning any person without lawful justification, or otherwise preventing him without lawful justification from exercising his right of leaving the place in which he is”

The clock cannot be put back. Luckily, the law of the country is clear and unambiguous. In cases where the persons are detained in prison for no fault of theirs, they have to be compensated. The principles laid down in England in Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670. Our courts have applied this principle. Jeevan Reddy J, as a judge of the Andhra Pradesh High court held in C. Ramkonda Reddy v. State, AIR 1989 AP 235 : -

The fundamental rights are sacrosanct. They have been variously described as basic, inalienable, and indefeasible. The founding-fathers incorporated the exceptions in the Articles themselves - wherever they were found advisable, or appropriate. No such exception has been incorporated in Art.21, and we are not prepared to read the archaic concept of immunity of sovereign functions, incorporated in Art.300(1), as an exception to Art.21. True it is that the Constitution must be read as an integrated whole; but, since the right guaranteed by Art.21 is too fundamental and basic to admit of any compromise, we are not prepared to read any exception in to it by a process of interpretation. We must presume that, if the founding fathers intended to provide any exception, they would have said so specifically in Part- III itself.

Maybe, the petitioners would be more than happy if they are released from jail. Yet, if the judicial system has to restore itself to its constitutional promise, in addition to the order of release, the court should award adequate compensation for violation of their fundamental right to liberty. The courts have awarded compensation for imprisonments at the hands of the executive. To name a few instances, Rudul Sah v. State of Bihar, AIR 1983 SC 1086, Sebastian Hongray v. Union of India, AIR 1984 SC 1026 and in Bhim Singh v. State of J & K, AIR 1986 SC 494. The imprisonment of an individual is no less comforting because it flows out of a judgment. A loss is a loss.

Perhaps, the State of Madhya Pradesh should be called upon to bear the damage, if the issue as to who should pay arises. For it is the state, which appointed its prosecutors in the Supreme Court, and they were partly responsible for the present situation.

Would you not agree if Dumas were to live in India today, he would have penned a book called "The counts of shivpuri"?

---

[1] Twister means a cyclonic storm of phenomenal magnitude enough to level buildings and towers.

prayer from a judge

A PRAYER FROM A JUDGE

There a few who become judges rather early. There are many more who assume the high office in their late 40’s and early 50’s. No one has however, assumed office for the first time and that too from the bar, in their early 60’s. An exception to this rule is Chief Justice Edward G. Ryan. He is not a name unknown to the Indian judiciary. His words have been quoted by several judges of the Supreme Court and the high court’s in their reply to the welcome addresses and in their judgments.

This judge is famous in his adopted country, the United States of America. He was born in Ireland, now partly in the United Kingdom on 13^th of November 1810. At the age of 32, he moved to the United States of America. Within a short span of four years, he established himself as one of the most successful lawyers there. He played multiple roles as a lawyer, politician, writer, Editor of a newspaper and speaker. The reports of Courts in Wisconsin court, now available on the internet, show him of having appeared on important commercial and constitutional matters. A couple of the cases he dealt with are note worthy.

In 1854, He prosecuted the Anti-slavery leader or abolitionist, Sherman M. Booth. The charge for the prosecution was that he had helped slaves to break away from the master and therefore, violated the Fugitive Slaves Law. Byron Paine, another eminent lawyer, who went on to become a judge of the second most powerful court in the world, Supreme Court of United States, represented Booth. From the sweep of powers exercised and the range of judgments delivered, from Cattle trespass act to intricate constitutional law questions, there can be no challenge to the declaration that the most powerful court across the world is the Supreme Court of India. Legal history and contemporary constitutional documents do not show any other court exercising the same power. It is the only court across the world, which selects its members and those of the high courts. It is because that the court is the most powerful court that it assumed that power. The only check on this power seems to be the age of its incumbents, which, providentially, as on today, is determined by powers not amenable to that Court.

In 1855, Edward Ryan represented Coles Bashford in the famous Bashford v. Barstow, 4 Wisconsin 567 (1856) case. It was a case when a writ of quo warranto was sought for not by a private party but by the Attorney General of the State itself. The Supreme Court removed the governor from office when it was demonstrated to it that the election was vitiated by Fraud.

Being up on law, having earned powerful personalities as his clients and in addition, being the founder of the Chicago Tribune, Edward Ryan challenged another tall leader, Abraham Lincoln. He could not win the battle and consequently, sent to political oblivion.

He could not tolerate the suspension of the writ of habeas corpus by the Lincoln and sending the citizens to military tribunals for trial. He labelled military trial by civilians as “utter imbecility” founded on “moral incapacity” History has shown that if not for those actions of Lincoln, a concept of bill of rights would have never emerged in his country. Nonetheless, the courage of Edward Ryan can be seen for having stood against any form of state limitation on the citizen’s powers. During the court of arguments in a case, he called Lincoln as an Irresponsible despot and accused him of having unleashed a reign of terror.

In one of his speeches, he said

Those who support censorship claim that the administration and government are one and the same—to attack Lincoln is to attack the Constitution—but they are mistaken. “We claim the right as free and loyal American citizens, to discuss the conduct of the administration, and to censure it when we deem it worthy of censure. Our fathers won and established this right, and we will not surrender it. We utterly deny to the Executive of the United States the power assumed by Congress in the sedition act of 1798 to suppress opposition to the Administration, or restrict the full freedom of political discussion in the loyal states. This would be to assume a power above the Constitution. The administration has no more power to suspend the Constitution, than have the people. The administration is the child of the Constitution, and the servant of the people.

We deny the power of the executive to trammel the freedom of press by the suppression of newspapers. The press is juridicially responsible for abuses; but the freedom of the press, subject to judicial remedies, is essential to the freedom of the people. And we protest against the manifest partiality with which this new and dangerous power is exercised.”

A statement that is little understood and hardly applied even by today’s constitutional standards. Unfortunately, for Ryan, Lincoln won. The victory for civil rights was a financial loss of Ryan. With irascible temper and Lincoln as his enemy, Ryan soon fell into penury. It must have been tough indeed, for Ryan had gone through a second marriage and had fathered seven children. His temper was so famous that it was referred in his reference too. A Senator called Vilas, in a eulogy, said:

"Ryan’s temper made him terrible to his friends as well as his enemies; tyrannical, perhaps sometimes cruel . . . violent and hostile where he should have been friendly”

A few years later, in 1874, when the post of the chief justice of the Supreme Court fell vacant in Wisconsin, he was noticed and elected to that office. By that time, he had lived a full life and was aged 64 years. Edward Ryan was the chief justice for mere 6 years but in that short period he had established himself a scholar on the bench, a rare combination indeed. Ryan had his share of eccentricities and idiosyncrasies. His work and knowledge were so vast and deep that they were overlooked.

Justice John B. Winslow, a legal historian wrote

Chief Justice Edward Ryan not only dispelled the doubts which followed his appointment but added vastly to the standing and prestige of (the) Court . . . His opinions on great questions left a monument to his memory more enduring than brass or marble

As a lawyer and politician, he was despised for his temper. As a judge, he was transformed. An associate judge of his court, Justice Orsamus Cole said

While engaged in the labour of considering and deciding causes, the deportment of the chief justice towards his associates was uniformly kind, respectful and courteous. No irritating word, no offensive language, fell from his lips while thus employed . . . he listened with attention to whatever anyone had to say adverse to his views and often came to their conclusion when it seemed supported by the better reason or authority".

Curiously enough, whenever the work of an eminent judge is to be described, these meaning conveyed by these words are used. The speeches describing the judicial times of Tiruvarur Muthuswamy Iyer, Suliman, Vivian Bose, M.C. Chagla, and Hidayatullah are more or less in the same tone and warmth. Perchance, all of them have discovered a golden thread during their times on the bench.

On 14^th of October of 1880, he sent word to his colleagues that he felt ill and passed away on 19^th of October 1880.

While searching through his papers, a paper on which his daily prayer was written was found. If there can be immortality, the words have achieved them.

"0 God of all truth, knowledge and judgment, without whom nothing is true or wise or just, look down with mercy upon Thy servants whom Thou sufferest to sit in earthly seats of judgment to administer Thy justice to Thy people. Enlighten their ignorance and inspire them with Thy judgments. Grant them grace truly and impartially to administer Thy justice and to maintain Thy truth to the glory of Thy name. And of Thy infinite mercy so direct and dispose my heart that I may this day fulfill all my duty in Thy fear, and fall into no error of judgment.

Give me grace to hear patiently, to consider diligently, to understand rightly and to decide justly. Grant me due sense of humility, that I be not misled by my willfullness, vanity or egotism.

Of myself I humbly acknowledge my own unfitness and unworthiness in Thy sight, and without Thy gracious guidance I can do nothing right. Have mercy upon me a poor, weak, frail sinner, groping in the dark; and give me grace so to judge others now, that I may not myself be judged when Thou comest to judge the world with Thy truth. Grant my prayer I beseech Thee for the love of Thy Son, our Savior, Jesus Christ. Amen.

Would you not agree the Almighty is yet to fulfil Edward Ryan’s prayers?