The Supreme Court of
India has mastered Latin & forgotten simple English. It
amuses me as to how could the Supreme Court ‘read’ & ‘misread’ at the same
time, a simple & indisputable provision of law in the constitution. I am
talking about Article 361 (2), which reads as follows: -
361. Protection of President and
Governors and Rajpramukhs
(2) No criminal proceedings whatsoever shall be
instituted or continued against the
President, or the Governor of a
State, in any court during his term of office
The Supreme Court did
not dispute the fact that Article 361 was attracted w.r.t. one accused. In
fact, it was highlighted that an accused person be granted benefit of Article
361 till he is the Governor, broadly speaking. What the Supreme Court has specifically held/ directed in operative parts of the judgment in
State (through) Central Bureau of Investigation Versus Shri Kalyan Singh (former CM of UP) & Ors[1] dated 19.04.2017, at para 27 is mentioned below: -
27 (ii)………Mr. Kalyan Singh, being the Governor
of Rajasthan, is entitled to immunity under Article 361 of the Constitution as
long as he remains Governor of Rajasthan. The Court of Sessions will frame
charges and move against him as soon as he ceases to be Governor.
Mr. Kalyan Singh,
being a governor is constitutionally protected under Article 361 of the Constitution
of India, from being tried in a criminal proceeding whatsoever during his term,
which includes any appeals such as the instant one. The Supreme Court did a great
disservice to the constitution & the oath its judges took, when it heard
& decided the rights of this particular ‘accused’- Kalyan Singh. Let’s
demonstrate as to how the judgment must, at the very least, be treated as per incurium. Let us remember there is
no doctrine of severability applicable to judgments.
The Supreme Court overstepped
its boundary, which was drawn by Article 361. A part of Article 361 & the
one that clearly applies here, in no unequivocal terms emphasizes that no criminal proceeding whatsoever (including
Criminal Appeal No.751 of 2017 ) shall
be instituted or continued (the instant appeal registered in 2017) against the Governor (Kalyan Singh)
of a State (Rajasthan) in any court (including Supreme Court)
during his term of office (04.09.2014
to 03.09.2019). The Supreme Court went to depths to explain certain legal
principles quoting a latin maxim from an old celebrated English case, but
missed out on our basic legal Document- The Constitution of India. I am not
sure if it would make me feel better if it was an ignorant mistake the Supreme
Court, which it wasn’t.
I am not even sure
if the Governor was represented by an Advocate. Again, I wonder if it were any
less a legal disaster if he was represented in a criminal proceeding he was
forbidden by constitution to participate in, when compared to, having got his
rights bulldozed while crushing the principles of natural justice i.e. without
having being given an effective hearing. Like they say- Ignorance is Bliss. Billion
plus blissful citizens know that the Supreme Court is guarding the Constitution. While
a handful like me get to discover that such a notion is only an ignorant one.
Unless Article 142
is the boss of the Constitution of India, the question for Supreme Court to
answer is- who or what provision gave the Supreme Court the power or right to
order the Court of sessions to frame charges against the governor just when he
ceases to be in office.
I have few other objections
going to the root of this judgment and the manner in which it unfolded. However,
considering the complexities of facts, orders & dates, I primarily
highlighted one small (only in words dedicated by this judgment) portion of
this faulty judgment above.
First limited
observation I will make is that I did not find this case meet the
parameters of attracting Article 142, especially when confronted with the right
of accused to have a fair trial. The trial was already being held in a
different city 100 km away from the alleged crime- site… Oh, How I wish to
delve into the futility of joint trial, addition of charges mid- trial, causing
prejudice to the accused, misreading of res
judicata etc., and yet I am bound
by the lack of information relating to the case, rendering me helpless to thoroughly
back my criticism of the judgment. Maybe that’s why it’s almost a good judgment. It is expected that the justice & equity should flow from a kind
place, not the one which is prejudiced against one party (specially the one who
is the only party to personally suffer at the conclusion of successful trial). I
say this because in an adversarial system, which we largely follow, if
arguments of both the sides are downplayed and the dominant voice is that of
the Court, it becomes sort of an inquisitorial proceeding in garb of an
adversarial one. This is unintended in our legal system, which has safeguards
in place for adversarial disputes, but not for an inquisitorial one, especially
when the inquisitorial role is played by the Court which has the last word in
the legal system & churn out non- appellable judgments.
On the pretext to
remedying the follies of CBI (the other party to the case, probably the only
other party besides accused) and therefore for doing complete justice u/a 142, When
the Court uses the phrase such as- “accused persons have not been brought to
book”, it reeks of some sort of bias ‘accused’ always faces in a criminal
justice system. The accused is facing a criminal trial. The accused is not
faulted even once for the ‘technical & easily curable defects’ resulting in
the impugned judgment. The one who is faulted for, is the only one benefiting
from this judgment. Unless bringing accused to the book means something more
than facing a criminal trial as per the law of the land, without flouting even ‘technical
laws’, we’re missing something here. Following technical laws to me seems like
following law in letter (also avoiding a ground for mistrial). The Supreme Court
in last line of operative part of its judgment did give a direction to follow
its directions “both in letter and in spirit”. Now, it doesn’t get more
technical than that. When a valid state made law is followed in letter, it is
played down as a technicality, but the directions in a judgment are supposed to
be followed not only in letter but also in spirit (whatever this following of
spirits of the directions in a judgment means). Lending hands by Supreme Court to
support the prosecution could never serve the purposes of justice. It only
emboldens the prosecution & the judge to secure a conviction. One shouldn’t
talk about ‘justice’ without balancing the rights of both the parties. It
should be noted that the arguments of both sides were shabby enough, at least
the way they shined out in the judgment.
I must mention that
the substantive offences which are originally placed against the accused at
trial are Sections 153A, 153B & 505 of the Indian Penal Code, 1860, which
have an uncanny resemblance to the (operative) wordings of since departed Section
66A of the Information Technology Act, 2000 (as amended). The same Supreme Court
did declare S. 66A unworthy of placing restrictions on Freedom of speech &
expression[2].
Having that landmark judgment as the bedrock, with any luck, these three
sections might as well be declared unconstitutional. But again, it’s not the
perfect legal world we are talking about. Different legal yardsticks are
applied for different parties, depending on the stakeholders claiming relief & the perceived public/
media outcry if the judgments irks public sentiment. When a young girl
is arrested & perceived threat of restriction on absolute freedom of internet
communication is involved, the right to speech & expression weighs in, and
public order is tossed out of picture with relative ease. On the other hand,
when secular/ communal flavors are involved, freedom of speech & expression
takes the heaviest hit & public order echoes all around. Interestingly, in
Shreya Singhal’s case, the arrest emanated from an (perceptively) objectionable
comment regarding 'Bandh' for a popular political leader's funeral, who but for his (natural) death
would stand accused in the present case and bear the brunt of this judgment. I
understand the need for public order over Freedom of speech & expression or
vice- versa. I just do not understand bending them in diametrically opposite,
guided by one’s personal righteousness (not explicit in constitution), however noble that may sound to the
educated. This goes against equity. I am beginning to think that just to make a
point I am getting carried away, since this was not the issue in question. So, I will end it here.
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