First Among Equals? // Laws, legal system totally geared in favour of rich and powerful: Justice Deepak Gupta
'the most
important attributes of the judiciary and judges are independence, fearlessness
and impeccable integrity... in a country which professes to follow the
rule of law and the principle of separation of powers, there is no alternative
to a totally independent judiciary'
NB: The hon'ble Justice deserves our thanks (the report of his speech appears below the first post). It is a sign of the times we live in that the basic values of a functional justice system need to be stressed again and again. Let us hope the message reaches the minds and consciences of the concerned authorities. DS
Nikhila Henry - Ex CJI Gogoi's RS Nomination Calls All His Judgments Into Question
Laws, legal system totally geared in favour of rich and powerful: Justice Deepak Gupta
NB: The hon'ble Justice deserves our thanks (the report of his speech appears below the first post). It is a sign of the times we live in that the basic values of a functional justice system need to be stressed again and again. Let us hope the message reaches the minds and consciences of the concerned authorities. DS
Think of all those activists fighting for our democratic rights who have to rot in jail waiting for their cases to crawl through the courts, with endless delays & adjourn-ments. And then this. As a member of the
legal fraternity, I find it my responsibility to seek clarity over the
lightening speed in which a matter appears to have been listed.
In the late evening on
21st April 2020, Arnab Goswami, the Editor-in-chief of Republic TV, in
purported exercise of his right to freedom of speech and expression guaranteed
under Article 19(1)(a) of the Constitution of India, made
certain comments against former Congress President, Sonia Gandhi. He
stated that Mrs. Gandhi is "happy" and will be sending a
"report to Italy" in order to gain "praises" as she
has gotten "saints" killed in a State which is governed partly by the
political party she belongs to. The tirade by Mr.
Goswami led to a multitude of FIR's being filed across various States including
Maharastra, Madhya Pradesh, Rajasthan, Telengana, Jharkhand and the freshly
made Union Territories of Jammu and Kashmir, alleging, to put it simply – the
spreading of fake news.
On 23.04.2020, Goswami chose, as is his
right, to approach the Supreme Court directly instead of the Bombay
High Court due to the multiplicity of proceedings arising out of the same
incident in various states and prayed that all such complaints/FIRs lodged against
him be quashed.
The Indian Judicial
system, like all other institutions around it has met with an unprecedented
challenge due to the pandemic created by Covid-19 and has adapted its system of
justice delivery to meet the omnipresent need of society to seek recourse to
legal remedies. However while doing so, and in due deference of the need for
social distancing, only the most urgent and pressing cases are being heard
through video-conferencing. The papers pertaining to each case, that is, the
legal brief / petition / application is accepted in paperless formats after
following a Standard Operating Procedure established by each Court,
which applies to all litigants equally. In the case of the Supreme Court of
India, the names of cases found important enough to be heard on a given day are
released in the form of a list on the preceding evening by the Supreme Court of
India through its official website.
Bear with me as I take
you through the following chronology of events that appear to have transpired
in the evening of 23rd April 2020:
On 23.04.2020, around 4:20-5:30 PM in the
evening, the Supreme Court published its main list of matters requiring urgent
and imminent hearing for 24.04.2020.
On 23.04.2020, around 6:20-6:50 PM in the
evening, the Supreme Court published its Supplementary (read additional) list
of matters requiring urgent and imminent hearing for 24.04.2020.
At no point till this
time, did the case titled 'Arnab Ranjan Goswami v. Union of India' reflect
in the information available in the public domain vis-à-vis hearing of urgent
matters on 24.04.2020 by
the Supreme Court.
As per the information
available on the website of the Supreme Court, the case titled 'Arnab Ranjan
Goswami v. Union of India' was filed at 8:07 PM on 23.04.2020.
Approximately an hour
later, around 9:07 PM, an additional page was published and uploaded
subsequently on the Supplementary List of matters for 24.04.2020 by the Additional
Registrar of the Supreme Court intimating that the case titled 'Arnab Ranjan
Goswami v. Union of India' was listed at 10:30 AM on the following day
before the Court.
Let us for a minute
ignore the Standard Operating Procedure published by the Supreme Court on 15.04.2020 which states that in
all matters involving extreme urgency, where an Application is submitted by 5
PM on a given day, the matter shall be processed for two days after
such date and any Application received post 5 PM, for another extra day thereafter.
Let us also ignore the circular issued by the Supreme Court on 17.04.2020 making two officials
responsible for dealing with queries on matters pertaining to urgent hearing
between 10:30 AM till 5 PM on working days.
Let us instead follow
the facts as presented to us by the information made available by the Supreme
Court and understand that between 7-9 PM on 23.03.2020, Mr. Goswami was able to file a
Petition and make an Application for urgent
listing and obtain approval of the urgency by the "Competent
Authority" and convince the concerned officials of the Registry
to jump the queue by not listing it in due course as per the SOP, but the very
next morning. Being in practice, I have first hand experience of how difficult
and cumbersome this process can be. One needs to constantly follow up with the
registry and push for processing of the case incessantly with officers who are
generally recalcitrant that one feels one is arguing the case before the Judge
himself.
As to whether the
statements made by Goswami during his telecast are an abuse of that very
constitutional right he claims to have exercised and form the ingredients of
several offences under the Indian Penal Code is a matter for a competent court
to decide.
At the same time, as a
member of the legal fraternity I find it my responsibility to question and seek
clarity over the lightening speed in which a matter appears to have been filed,
mentioned for urgency, evaluated, allowed and listed within a span of 14 odd
hours. Let me reiterate that I have absolutely no qualms about Goswami being
able to seek recourse in our judicial system. I do however wonder whether the
same judicial system is open to giving an equal chance to those similarly
placed or rather, in much worse conditions.
The Petition filed by
Goswami is in the public domain as well and while I claim to be no legal
luminary, or substitute my wisdom for the registry of the Supreme Court, I have
not found any "urgency" in the averments made therein to indicate
that Goswami was about to be imminently arrested and the only legal recourse
available to him was an urgent hearing before the Supreme Court failing which
there would be a grave miscarriage of justice.
Are the doors of
justice flexible enough to be opened beyond 'office hours' where the need so
arises? I would certainly hope so. An excellent example of such a situation was
seen recently when the Delhi High Court convened a special sitting at
beyond midnight at the residence of a Judge to ensure safe passage for riot
victims stuck in an injured condition in a Hospital. The Court was primarily
concerned with ensuring the safety of lives of injured persons needing
immediate medical attention during the riots that were occurring in the North
Eastern district of Delhi. There have been numerous
other instances of near instantaneous hearings by the Supreme Court
and various High Courts in our country, which have reassured the citizens that
where the facts so strongly warrant judicial intervention, time creates no
hindrance.
It is also the same
Supreme Court where a petition that was filed on 17.04.2020 was not heard till 27.04.2020, a full ten days later. The
petition had sought directions to the Central Government to allow migrant
workers to return to their native places, after testing them for Covid,
and to the concerned authorities to ensure their safe transportation. Print,
Broadcast and Social media is bursting with heartbreaking stories that have
emerged since the lockdown, showing migrant workers taking on the onerous
journey to their homes on foot. Amartya Sen, Raghuram Rajan, Abhijit
Banerjee warn us that it may be inevitable that 'a huge number of
people will be pushed into dire poverty or even starvation by the combination
of the loss of their livelihoods and interruptions in the standard delivery
mechanisms' unless steps are not taken to address the issues faced by them.
The Government lost no
time in organizing special flights with dedicated medical teams to
evacuate expats and other Indian citizens from China
and Europe during the lockdown. All of us rightly commended the fast
response to provide relief to our citizens at that time. The very same
Government has also left a majority of its population stranded on
the road having to find their way home with no food or water.
Do migrant workers, the most vulnerable and underprivileged strata of our
society, who are being forced to stay away from their families and who continue
to live in unpredictable and arduous conditions, not deserve access to
justice with the same lightening speed as any other citizen? Can we afford to
be so unkind and look the other way?
Do we not realize the hypocrisy in blaming
these migrant workers for wanting to go home when we want our sons,
daughters, brothers, sisters to be safe and at home in these distressing times?
Do Article 14 (the right to equality) and 21 (the right to life) of the Constitution
of India not apply equally to these citizens as they apply to an influential
head of a media conglomerate?
The Central Government
not only opposed the plea filed on behalf of migrant workers in the Supreme
Court on a specious ground such as it would send a 'wrong message' but
also sought two weeks to file a reply. Better sense seems to have
prevailed finally as it appears that the Government has woken up to their
plight issuing guidelines today to permit their movement
Another lawyer,
who had filed a case on 17.04.2020,
six days before Arnab Goswami, whose matter was in 'process' and finally listed
and disposed off on 27.04.2020 has
already raised his grievance regarding the 'pick and choose' policy of the
registry of the Supreme Court with a letter to the Secretary General of the
Court. As a matter of
propriety and transparency one hopes that his legitimate concerns are addressed
as one remembers Martin Luther King Jr.'s profound words in a 'Letter from a
Birmingham Jail', that 'Injustice anywhere is a threat to justice
everywhere.'... Source: Twitter
Nikhila Henry - Ex CJI Gogoi's RS Nomination Calls All His Judgments Into Question
Laws, legal system totally geared in favour of rich and powerful: Justice Deepak Gupta
Supreme Court judge
Justice Deepak Gupta on Wednesday rued that the country’s “laws and… legal
system are totally geared in favour of the rich and powerful”, and said that
“in the present day and age judges cannot live in ivory towers but must be
aware of what is happening in the world around them”. Speaking at a virtual
farewell hosted by the Supreme Court Bar Association on his last working day,
Justice Gupta said, “If somebody who is rich and powerful is behind bars, then
time and again he will approach the higher courts during the pendency of the
trial till some day he obtains an order that his trial should be expedited.”
This, he said, happens at the cost of the poor litigant whose trial gets
further delayed as he cannot approach the higher court.
“On the other hand, if
a rich person is on bail or wants to delay a civil litigation, he can afford to
approach the superior courts time and again to delay the trial or the
proceedings till the other side gets virtually frustrated,” Justice Gupta said,
adding that the Bench and Bar have a duty towards poor litigants “to ensure
that their cases are not put on the backburner.. If real justice has
to be done, then the scales of justice have to be weighted in favour of the
underprivileged,” he said.
Justice Gupta exhorted
that the Bar “should… be totally independent and members of the Bar while
arguing matters in court should shed their political or other affiliations and
argue the matter strictly in accordance with law”. He said “the most
important attributes of the judiciary and judges are independence, fearlessness
and impeccable integrity” and that “in a country which professes to follow the
rule of law and the principle of separation of powers, there is no alternative
to a totally independent judiciary”.
Rooting for harmony
between the three wings of the state, the judge pointed out that courts have
been given the power to even set aside laws made by Parliament and that “it is
the duty of this court to ensure that no person is deprived of his life or
liberty except in accordance with procedure prescribed by law”.
“In times of a crisis
such as the ones we are living in, the courts must protect the poor and the
underprivileged, because it is they who are hit the hardest in trying times.
When the court does its duty and acts in favour of the citizens, sometimes
there will be friction, but a little friction in my view is a healthy sign that
the courts are functioning properly”, he said.
Stating that judges
must decide matters according to law and not their personal likes and
prejudices, he said that “for any judge, when he sits in court, his only Gita,
his only Bible, his only Quran, his only Guru Granth Sahib, his only Zend
Avesta is the Constitution of India”.
The outgoing judge
added that “this is not such a difficult job if one goes by the Constitution
and the laws” and said “the Constitution has been my polestar”.
On criticism by
members of the Bar that the judiciary is no longer independent or humane, he
said this was not the time for blame games. He said that members of the
judiciary are drawn up primarily from the Bar, and that “they must also
introspect as to whether they have been totally independent or humane”.
In 2019, during a
lecture in Ahmedabad, Justice Gupta had spoken about the need for a relook at
the sedition law. He had also said that virulent criticism of a government does
not make those criticising any less patriotic than those in power. At another
event in February this year, he remarked that majoritarianism was the
antithesis of democracy.
Sitting with Justice
(retired) M B Lokur, Justice Gupta had authored the judgment in the Nipun
Saxena case, which contained directions on protecting the dignity and privacy
of rape victims while reporting such crimes. In September 2019, a
bench of Justices Gupta and Aniruddha Bose held that NGOs “substantially
financed, directly or indirectly” by government funds will fall within the
ambit of ‘public authority’ under the RTI Act.
Justice Gupta studied
at Delhi University Campus Law Centre and practised law in the Himachal Pradesh
High Court. He was appointed there as a judge in 2004, and in 2013 he became
Chief Justice of Tripura HC. He was made Chief Justice of Chhattisgarh HC in 2016,
and was elevated to the Supreme Court in 2017.
https://indianexpress.com/article/india/supreme-court-justice-deepak-gupta-virtual-farewell-6397441/
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