Connect with us


Circumspection, My Lords



Supreme Court

kapil sibal

   Kapil Sibal

With the power of judicial review, the expanse of our Supreme Court’s jurisdiction is unmatched compared to other judicial forums around the world. The greater the power, the greater the responsibility in its exercise.

The Supreme Court has, over the years, created milestones in judicial pronouncements resulting in historic shifts, positively impacting the nation in its onward march for justice. The genesis of Public Interest Litigation in listening to the voice of the voiceless and giving access to the poor, the marginalised and the weak is a unique experiment to be lauded. It has also effectively, on occasion, dealt with the corroding effect of corruption.

But for the Supreme Court’s proactive role, it would have taken many more years for Compressed Natural Gas (CNG) to be the fuel of preference in the transportation sector. Dealing with bonded labour, neglected children, the non-payment of minimum wages to workers, violations of labour laws, sexual harassment at the work place, harassment while in police custody, are a few examples where the court has constructively intervened.

These are positives, which earned the institution kudos. But in some areas, the Supreme Court is ill-equipped to make judicial pronouncements. The recent decision invoking Article 142 of the Constitution of India, prohibiting the sale of liquor in establishments, restaurants, vends, etc., within 500 metres of national and state highways makes one question the role of the Supreme Court. Recognising the desire of the court to save lives lost due to drunken driving, such judicial diktats are not the outcome of a legal suit between parties. The location of hotels, restaurants or vends, selling liquor is a pure policy decision, best left to governments to take.

There is also a constitutional issue which arises. Should the Supreme Court, given the fact that the subject matter of liquor is within the exclusive domain of state legislatures, through judicial diktat, impose a decision on state governments? My objection is not limited to this constitutional issue. I am more concerned about the consequences of such judicial diktats.

The Supreme Court, when issuing this directive, was perhaps not fully equipped with all the facts. That the states could have moved the Supreme Court and informed it of the consequences of its decision is indeed proof that the decision was taken without being fully cognisant of the facts. That hotels would lose their five-star ranking is one such consequence. That millions associated with the liquor business would lose their jobs is another consequence.

That the state will lose a vital source of revenue, which would become part of the Consolidated Fund of the state for multifarious state programmes, is yet another consequence. Public interest is a very unruly horse.

If public interest becomes the raison-d’être of decision-making, then the contours of the constitutional concept of the separation of powers will be blurred. The judiciary might then be persuaded to deal with every ill that confronts this country.

While we applaud the judiciary in exhorting the government to listen to gender concerns, malnourished children and its role in asking the government to respond to the plight of farmers in Tamil Nadu, at the same time, we question the freewheeling use of Article 142 of the Constitution. On occasion, while exercising this power, personal liberty is at stake and the rule of law in jeopardy. Sometimes, the use of Article 142 has economic consequences that tend to destabilise the economy.

The cancellation of all telecom licenses to serve the cause of public interest without individual culpability jeopardised the survival of entities. Rising non-performing assets (NPAs) are, to some extent, the result of judicial decisions. Courts may not, or may choose not to, consider their impact on the economy. The telecom sector is, till today, reeling under the after-effects of the Supreme Court judgment. The consequences of cancellation of all allocations of coal mines have adversely impacted the balance-sheets of public sector banks. One of the consequences of such omnibus cancellations is defaults on bank loans. The consequent NPAs impact the economy.

The decision to ban the sale of diesel cars with an engine capacity of 2000 cc and above is yet another instance of judicial overreach. This, in fact, jeopardised possible foreign investment. The decision was later reviewed. In the long term, such decisions dampen the spirits of foreign investors.

We live in a very complex world in which the media is at the forefront of public discourse. Social media, yet another unruly horse, with its outreach, impacts the lives of millions. Populism is at its height. The contours of civilised discourse have vanished. Economic interests sometimes drive public discourse. News is occasionally motivated. For the court to be completely isolated from this environment is not easy. Most of us tend to be swayed by what we read. Judges are not superhuman. They, too, are mortals. This is why they have to be exceptionally careful in rendering decisions, which cause unintended consequences.

Several judgments of the court reiterate the principle that recourse to Article 142 of the Constitution is inappropriate, wherever a statutory remedy is available. This has not deterred the Supreme Court from taking the cover of Article 142 in its desire to do justice. The problem is that there is no court above the Supreme Court. Lawyers, who practise in the Supreme Court, day in and day out, are seldom willing to stand up and question this practice.

It is time to stand up and for judges to be more circumspect when taking decisions beyond the apparent contours of their jurisdiction.

(Kapil Sibal is a senior Congress leader and former Union Law Minister and a lawyer.)
(Article was first published in Indian Express, dated April 21)


Asaram rape case: ‘Self-styled Godman’ gets life imprisonment



Asaram Bapu

New Delhi, April 25: Self-styled godman Asaram Bapu has been Asaraam sentenced to life imprisonment by Jodhpur Scheduled Caste and Scheduled Tribe Court for raping a 16-year-old girl at his ashram in 2013.

Special Judge Madhusudhan Sharma delivered the verdict in which three accused including Asaram convicted, two other accused acquitted by in connection with the rape case.

The court awarded 20 years in jail each to Asaram’s warden Shilpi and associate Sharad.

However, the court acquitted Asaram’s ‘sevadar’ Shiva and cook Prakash.

“Asaram has been sentenced to life imprisonment till natural death… Shilpi and Sharad have also been directed to pay Rs one lakh fine each,” defence lawyer Sushma Dhara stated.

The 474-page judgment said, “the 77-year-old godman and two others were convicted under Section 376D of the Indian Penal Code, the Protection of Children from Sexual Offences (Pocso) Act and the Juvenile Justice (JJ) Act”.

Minutes after the verdict, Asaram spokesperson, Neelam Dubey said “We will discuss with our legal team and then decide our future course of action. We have confidence in our judiciary.

Following the directions of the Rajasthan High Court, the trial court pronounced its verdict in Jodhpur Central Jail premises.


Rest of two accused Shilpi, Sharad sentenced to 20 years jail term

Asaram gets life imprisonment

We have got justice. I want to thank everyone who supported us in this fight, says Victim’s Father 

Asaram is convicted, we have got justice. I want to thank everyone who supported us in this fight. Now I hope he will get strict punishment. I also hope the witnesses who were murdered or kidnapped get justice, said Father of the victim.

Jodhpur Scheduled Caste and Scheduled Tribe Court convicts three accussed including Asaram and acquits two other accused

Visuals from Ahmedabad

To ensure law and order is maintained following the verdict, additional forces have been are deployed in three states — Rajasthan, Haryana and Gujarat.

Rapists like Asaram should be hanged, says Mahendra Chawla, a witness in the case

Trust judiciary and am confident that Asaram will be convicted. I request judiciary that such rapists should be hanged. Though I have security, I request Centre for additional security, my life like other witnesses is constantly under threat, news agency ANI quoted Mahendra Chawla as saying.

Delhi police on high alert 

The Delhi Police is also on high alert today in the wake of the verdict. A senior official says the cops have been given instructions in case followers of Asaram Bapu gather post-judgment. “We are in touch with police forces from neighbouring states to avert any untoward incident. Senior officers from districts and SHOs of police stations concerned have been directed to keep a watch in their respective areas,” he is quoted as saying by PTI.

Security tightened at Jodhpur jail ahead of Asaram Bapu’s case verdict

In Jodhpur, where the verdict will be delivered, authorities imposed Section 144.

Supporters of Asaram offer prayers 

On April 7, the final arguments in the case had been concluded by the special court for SC/ST cases and the court had kept the order reserved to be pronounced on April 25.

Asaram was held on the complaint filed by a teenage girl from Uttar Pradesh’s Shahajahanpur.

The victim, who was studying at Asaram’s ashram at Chhindwara in Madhya Pradesh, had alleged that the godman had called her to his ashram in Manai and raped her on the night of August 15, 2013.

Asaram was nabbed from Indore and brought to Jodhpur on September 1, 2013. The godman is in judicial custody since September 2, 2013.

A charge sheet against Asaram and four other co-accused namely Shiva, Shilpi, Sharad and Prakash had been filed by police on November 6, 2013, under various sections of the Protection of Children from Sexual Offences Act (POCSO), Juvenile Justice Act and Indian Penal Code.

The trial of the case had started in the district and session court on March 19, 2017, later it had been shifted to the special court for SC/ST cases on December 16, 2016.


Continue Reading


BJP leaders top the list in hate speech related cases: ADR Report



New Delhi, April 25: According to the Association for Democratic Reforms (ADR) and National Election Watch (NEW) report on a total of 58 MPs and MLAs have declared cases related to hate speech.

The ADR and NEW came up with this observation after analyzing the self- sworn affidavits of all sitting parliamentarians, News Agency ANI reported.

The analysis reveals that many of the MPs and MLAs, who are designated lawmakers have actually declared cases related to ‘hate speech’ against themselves.

The observation was based on the affidavits submitted by the candidates and MPs and MLAs ahead of the last election they contested.

According to the report,15 sitting Lok Sabha MPs have declared cases related to hate speech against themselves. While none of the Rajya Sabha MPs has been involved in hate speech relates case.

Among various renkowned parties, 10 sitting Lok Sabha MPs with declared cases related to hate speech are from the Bharatiya Janata Party (BJP) and others are from the All India United Democratic Front (AIUDF), Telangana Rashtra Samithi (TRS), Pattali Makkal Katchi (PMK) and All India Majlis-e-Ittehadul Muslimeen (AIMIM).

“BJP has 27 MPs, MLAs with such cases, All India Majlis-E-Ittehadul Muslimeen (AIMIM) has 6, TRS (6), TDP (3), SHS (3), AITC (2), INC (2), IND (2), JD(U) (2), AIUDF (1), BSP (1), DMK (1), PMK (1) and SP (1)”, the ADR report added.

Among the states, 11 sitting MLAs with declared cases related to the same case are from Telangana, four MLAs are from Bihar, nine MLAs are from Uttar Pradesh, four from Maharashtra, three each from Andhra Pradesh and Karnataka, while two each from Uttarakhand and West Bengal and one MLA each from Gujarat, Madhya Pradesh, Tamil Nadu, Rajasthan and Jharkhand have declared cases related to hate speech against themselves”, the report said.

The party leaders with declared cases connecting to the same are Asaduddin Owaisi (AIMIM) and Badruddin Ajmal (AIUDF) and Union Minister Uma Bharti. There are eight state ministers who have also declared cases related to hate speech.

In the last 5 years, 198 candidates with declared cases have contested polls for State Assemblies, Lok and Rajya Sabha.

Besides this, 141 candidates from recognized political parties and 29 candidates from unrecognized political parties have given ticked to such type of candidates and 28 independent candidates with declared cases related to Hate Speech have contested the elections for State Assemblies, Lok and Rajya Sabha.

Continue Reading


GSAT-11 called back for tests to be on the safe side: ISRO Chairman




Chennai, April 25 (IANS) The Indian space agency has recalled its communication satellite GSAT-11 from Arianespace’s rocket port in French Guiana for further tests, to be on the safe side, said Indian Space Research Organisation (ISRO) chairman K. Sivan on Wednesday.

“We are bringing back the GSAT-11 satellite to carry out some tests to be doubly sure of its performance orbiting in the space. There is nothing more to it,” Sivan told IANS.

He said the satellite is expected to be back in India on April 5 or 6, and after the tests and checks, GSAT-11 can be back in Ariancespace’s rocket port in Kourou.

“Due to additional technical checks with the Indian Space Research Organisation’s GSAT-11 satellite, to be conducted from the ISRO Satellite Centre (ISAC) located in Bengaluru, the Ariane 5 launch initially planned for May 25, VA243, has been postponed,” Arianespace had said.

The GSAT-11 was planned to be launched mid May. The satellite had reached Arianespace’s rocket port in March.

GSAT-11 was designed, assembled and integrated by the ISRO, and will have an estimated lift-off mass of 5,870 kg.

This advanced communications satellite is to provide multi-spot beam coverage over the Indian mainland and nearby islands, bringing significant advantages to the user community when compared with India’s existing INSAT/GSAT satellite systems, Arianespace said earlier in a statement.

With its new system architecture and cutting-edge technology elements, GSAT-11 will generate a capacity of more than 12 Gbps for users from a single platform, the statement added.

The ISRO’s move to call back GSAT-11 for further tests and be doubly sure of its performance may be due to the loss of the recently launched GSAT-6A satellite, soon after it was put into orbit on March 29.

ISRO suspects the failure of the power systems in the satellite for the loss of communication link.

“The satellites are powered by solar panels that charge the onboard batteries. The batteries are fully charged when the satellite is loaded on to the rocket.

“Even if there is a problem with the solar panel, then the battery power should have kicked in. Here the entire power system of the satellite seems to have failed,” one space expert told IANS earlier.

According to experts, the power system could have failed due to some short circuiting or arcing resulting in what is known in the space terminology ‘loss of lock’ or loss of contact with the ground station.

Satellites in space are locked to ground stations for tracking and other purposes.

On March 29, Indian rocket Geosynchronous Satellite Launch Vehicle (GSLV) slung GSAT-6A in its intended orbit. From there the satellite was to be taken up further to its orbital slot by firing its onboard motors.

The first orbit raising operation was successfully carried out by firing the onboard motors for around 36 minutes on March 30 morning.

The second orbit raising operation of GSAT-6A satellite was also successful as its motors was fired for about 53 minutes on March 31.

After that, the communication link got snapped.

Industry experts also said there has been instances where communication link with satellites got reestablished after a break of couple of days.


Continue Reading

Most Popular