SOS e - Clarion Of Dalit

IT IS A FORUM TOWARDS PROTECTING THE CIVIL , HUMAN RIGHTS OF THE OPPRESSED - DALITS , MINORITIES & TRIBALS.The Criminal - Police - Politician - Judge - Criminals Nexus is trying to silence me in many ways. If anything untoward happens to me or to my dependents CHIEF JUSTICE OF INDIA together with jurisdictional police & District Magistrate will be responsible for it.

Wednesday, August 24, 2016

Supreme Court CURB Wasteful Expenditure

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Editor: NAGARAJA.M.R… VOL.10 issue.35… .31 / 08 / 2016

Editorial : Supreme Court  curb  wasteful expenditure by governments

 

    The  Government of India and various state governments are  delaying appointment of  judges and  not giving  proper financial , infrastructure  support  to judiciary to conduct it’s duty. Thereby , governments are violating the constitutional rights , human rights of  millions of litigants. Also , due to  delayed  litigation project costs of many projects are shooting  up by thousands  of crores of rupees. It is a drain on public exchequer.

    Government  claims it does not have enough funds  to provide to judiciary but has  millions of  rupees for wasteful expenditure of ministers , bureaucrats like  foreign jaunt , bungalow decoration , new high end car purchases , etc.  

    Constitutional Rights of People &  Preserving Precious Public Money is top priority than  lavish life styles of ministers & bureaucrats.  Hereby , we urge the Honourable Supreme Court of India , to curb wasteful expenditure by GOI & various state governments and to order  the governments to  come out with  concrete plan to provide speedy justice to the public.

 

Jai Hind. Vande Mataram.

 

Your’s Sincerely ,

Nagaraja.M.R.

 

 PIL –   Justice  Delayed  & Justice  Denied
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION

CRIMINAL WRIT PETITION NO. OF 2016


IN THE MATTER OF


NAGARAJA . M.R

editor SOS e Clarion of Dalit & SOS e Voice for Justice
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
.
....Petitioner

Versus

Honourable  Chief Justice of India    & Others

....Respondents



PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.


To ,
Hon'ble The Chief Justice of India and His Lordship's Companion
Justices of the Supreme Court of India.

The Humble petition of the   Petitioner above named.

MOST RESPECTFULLY SHOWETH :
1. Facts of the case:
a. Every human being , every Indian citizen  are equal  and guaranteed  equitable justice  as  their  human right and  Constitutional right.
b. In india  mafia of powers that be  and government  ensure  that  cases drag on for years , so that  poor litigant  either dies before  judgement day  or  opts out in  the middle.  Due to this delaying tactics  ,  many poor people  rather suffer injustice  instead of seeking justice in courts.  Mafia  indirectly forces  them  to  keep away from litigation.
c. Due to  occupation induced health problems  my health is deteriorating day by day , some of the  PILs concerning national security , public welfare   I  have  filed are  two decades old , still no justice in sight. Judges   not even  admitted the cases.
d. Actual working hours , working days for judges  are  less in india. Too many case adjournments ,  less number of judges , too many  holidays for  judges like  summer vacation , winter vacation , working hours less than 8 hours per day , etc.
e. Judges  work  less  but  enjoy  5 star  pay & perks at public expense.
f. Due  to  denial of justice  common people suffer injustice for more time or till  their death. Say  some falsely implicated persons  suffer in jail for years till their acquittal by  courts , some petty criminals  whose  crime  attracts  one year imprisonment   suffers in jail for  ten years. Because they are not well connected , cann’t afford  hi fi  advocates , bail fees.
g. Due  to  lethargic  judiciary  , some land  acquisition cases    drag on for years   land  looser  suffers  also  the   project  cost   escalates  by  hundreds  thousands  of  crores  of  rupees.
h. The lethargic  Judiciary  in  India  itself  is the biggest violator  of  common man’s  human rights , fundamental rights. It is the culprit responsible for  loss of thousands of crores of rupees to public exchequer   due  to  project  cost  escalations.
i. when  a common  man’s  human rights , human rights   is  violated  in  the  form  of  delaying  tactics  by court  of  law  , judiciary  , the presiding judge becomes a criminal  and liable to pay damages to the aggrieved.
j. The central government  and  state government  yearly  spend  thousands of  crores of rupees  unnecessarily  like  purchasing  new cars  for  ministers , renovation , interior  decorations  of  minister’s  bungalows ,  foreign jaunts , etc. These are  all not  priority one  spending. Out  of  these  spending   how many  more  judges  could be appointed , paid salaries.
k. when  compared to  project  cost  escalations  of  thousands of  crores  of rupees  caused  due  to  case delays  , is it not wise  on the part of government to  appoint  requisite number of judges  with  additional budget burden of  few  crores  of  rupees.
l. Both  central  and  state governments  are  the biggest  litigants  in the country.
m. Government is manipulating  judicial process by  denying finance  to  appoint more judges , to create more court infrastructures.
n. We common people are  imposed  with time limits  to mandatorily comply with,  in our interactions with other public , with government authorities , with courts itself. For our failures we common people are penalized.
0. Paradoxically , there is no mandatory  time limits  for judges , public servants to finish  specific works concerning public. In most of the cases they adopt delaying tactics  , deny justice still they  are not penalized and  don’t  pay any compensation to the aggrieved public.
p. Due  to delaying tactics  of judges , many  anti national crimes , terror attacks took place  and still continuing  which could have been  well averted in time  if judges  took timely action. For helping  mafia  by  the way of delayed  justice , mafia rewards some of those judges with post retirement postings , promotions , site allotments , etc.
q. The Judiciary has the right , authority , power to order  government  to  allocate finance for  appointing judges , setting up court  infrastructure. If the  government  gives   ruse  of  no  money  in it’s account , courts can  definitely monitor  spending of government , cut down on  waste , non-priority spending of government , divert such money for  appointment of judges , court infrastructure development. No  need  for  CJI  to  weep before prime minister.  Judges  themselves  never  consider  the sufferings  of  weeping  litigants.  It shows the weakness  of  CJI and  a shame to our nation.
We  once again appeal to Honourable CJI , Supreme Court of India  to take  action  on the following PILs  ,  to answer the show cause notice  and to order the concerned public servants  to answer RTI questions.  The officials of  SCI don’t even have  etiquette , decorum to reply to our letters. Some of  my  appeals  are  two decades old.
     Remember  the basic fact  you are all enjoying 5 star pay , perks  at the expense of public and owe your duty to public.  Are  not  judges  drawing  huge  salaries , 5 star  pay , perks on time without fail ,  on 01st of every month? Have they forgotten to take salary in 25 years , but they keep cases pending for  20 - 25  years.  CJI   weeping   before   Prime Minister shows the weakness of  the judiciary & a shame to the nation.  Judges  never consider  sufferings of  weeping  litigants in cases.   Judges themselves are responsible for  long pending cases.
   Don’t  refer  the case  to police as they don’t  have power , authority to enquire high & mighty people , judges  &  previously they have failed  and  the case  is  to subject  some police officials , judges themselves to enquiry. Referring the case to police  is nothing but attempt to bury the truth , only  supreme court monitored  transparent enquiry by CBI  is right.
   Delaying  tactics of  judges is only  helping the criminals , anti nationals and terrorists. Please  refer  below mentioned  sample cases  of  Justice delayed for years to innocents , sufferings  of their family members. No judges , police are bothered. Are not the the respective judges , police  guilty of defaming those innocent persons , spoiling their livelihood , gross violation of their civil rights ? why not those guilty judges , police are paying compensation to victims of their wrong actions ?  But  the very same  guilty judges , police are  SHAMELESSLY  enjoying  5 star pay perks from public exchequer  for  decades.
  Bail system , Parole system are in favour of rich crooks in india , cases of rich crooks move at faster  pace  wheeas the cases of poor which are although older still continues. Judiciary , it’s system are biased. Consider the  sample cases of sanjay dutt , salman khan , jayalaita. Our judges , Police  don’t have spine to  enforce rule of law on rich crooks , while they put full  force , might on poor innocents.

If  anything untoward happens to me or  to my dependents Chief Justice of India  together with jurisdiction police &  District Collector  will be responsible for it.

Rot in judiciary is decades old. Honourable CJI sir , weeping is not right constitution of india has given you  the authority , TAKE ACTION DO YOUR DUTY.  People , History will remember you forever with respect. Anyway you are getting very good 5 star pay & perks , will also get decent pension after retirement from government. First  forget about post retirement  postings , discretionary allotment of sites , etc from government then you can work fearlessly. Both central & state governments are  biggest litigants in the country , IAS babus make wrong application , interpretation of laws  leading to litigations. Start by clearing the rotten eggs within the judiciary. When judiciary & police  in a country strictly uphold law , work impartially that country  surpasses even heaven.
Do remember on the D Day , in the   Court of Almighty  everybody CJI , Judges , prime ministers , common man alike  has to bow his head. In who’s  court there is no match fixing , no techinicalities , no vociferous hi fi advocates , no bias based on caste , religion , region , community , etc , only  straight simple account of wrongs & rights. Guess  his judgement in your case. GOD  BLESS US  ALL.


2. Question(s) of Law:
Is it right for  judges  to deny  justice . is it right on the part of judges to delay justice  under various ruses to common man , violate their human rights , fundamental rights.

3. Grounds:
Requests for equitable justice , Prosecution of  judges , police , public servants   responsible for  case delays.


4. Averment:

Please read details at :
Honourable Chief Justice of India TAKE ACTION

Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties & to answer the questions.


The Petitioner has sent many letters / appeals / petitions to supreme court of india & other courts through e-mail , DARPG website & through regular mail requesting them to consider those as PILs. But none ofthem were admitted , even acknowledgement for receipts were not given. See How duty conscious ,our judges are & see how our judges are sensitive towards life , liberty of citizens , common men & see how careless our judges are towards anti national crimes , crimes worth  crores  of rupees. That the present petitioner has not filed any other petition (which are admitted by courts) in any High Court or the Supreme Court of India on the subject matter of the present petition.

PRAYER:
In the above premises, it is prayed that this Hon'ble Court may be pleased:

a . Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants ,  Tax Authorities , Law Enforcement  Agencies , RBI authorities  in the following cases to perform their duties & to answer the below  RTI  questions.
b . to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.

c. To legally prosecute responsible , concerned    judges , police & public servants.
d. To cancel  winter , summer vacation holidays for  judges.
e. To  bring down  the holidays  of courts  per year  to twelve on the lines of industrial establishments.
f. To make  it mandatory for judges to  conduct  court hearings  for  8  hours per day.
g. To  bring  down unnecessary court adjournments.
h. to reserve  precious  court timings  only for  arguments  , cross examination of litigants , witnesses.
i. to  use information  technology , internet  for  issue  of  notices , summons and  litigants  submitting  documents , applications  instead of wasting court  time.
j. to introduce  working of courts on shift basis  in the same infrastructure.
k. to   appoint  retired judges  immediately to bring down  gaps in judges requirement.
l. to  order  the biggest  litigant  government of india and all state governments   to  frame  laws  strictly  in  accordance   with  constitution.
m. to order  governments  to  give  proper training for public servants , IAS officers , KAS officers , others   about  law of the land.
o. to make  specific public servants  personally responsible for wrong  applications  of law  while  discharging their duties  and  to  make them pay  compensation from their personal pockets.
p. to  order Chief Justice of India to  pay compensation  of Rupees TWO  CRORES  to Nagaraja Mysuru Raghupathi editor  SOS e Clarion of Dalit & SOS e Voice for Justice , towards the damages he has suffered  due to delayed justice.
q. to order the respective judges , police in all cases of case delays more specifically in the below mentioned cases to  pay compensation to innocent victims. Make a guideline for compensation payment. Legally prosecute guilty judges , police.
r. to frame a guideline for bail & parole procedure. When it is violated by judges , police , jail authorities , other public servants order them to pay compensation  and legally prosecute guilty judges , police , jail officials.


FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.



Dated : 08.06.2016……… ………………….FILED BY: NAGARAJA.M.R.

Place :   Mysuru , India…………………….   PETITIONER-IN-PERSON 

Judicial appointments delayed is justice delayed


On the eve of Independence Day, the outburst of Chief Justice of India T S Thakur in open court blaming the government for delay in accepting the recommendations of the collegium was unfortunate. The court asked the government to send back the names in case of a problem, but not to hold up the appointments. It observed, “If this logjam goes on, we’ll be forced to judicially interfere with the government and ask for every file sent to you by the collegium.” The anguish expressed by CJI was not theatrical. It was genuine and on account of delays in dispensation of justice, owing to non-appointment of judges. Having interacted closely with Law Minister Ravi Shankar Prasad and Finance Minister Arun Jaitley when I was the Attorney-General, I have reason to believe that it is not the intention of the NDA government to pack the judiciary with sarkari judges. The issue about causes of delayed appointments must be urgently sorted out without recourse to any blame game. Remember that ultimately it is the harassed litigants who suffer.



State to challenge Bombay high court acquittal of man after he seeks 200 crore for ‘wrongful rape prosecution’


MUMBAI: Six months after a Ghatkopar man sought Rs 200-crore compensation as he was "wrongly prosecuted" for rape and was acquitted after completing his jail term, the state government informed the Bombay high court that it's in the process of challenging his acquittal before the Supreme Court.

On Tuesday, additional public prosecutor Jayesh Yagnik informed a division bench of Justice Naresh Patil and Justice Prakash Naik that the government is approaching the SC to file a special leave petition. The bench directed the state to inform it within two weeks about the status of its plea.

The state's decision comes over a year after another HC bench acquitted 
Gopal Shetye of all charges. Shetye had served his sentence and was released before the HC gave its verdict. "This is clearly delay tactics on the part of the state government," said advocate Rajeshwar Panchal, counsel for Shetye. "The HC judgment was delivered in June 2015, and as per the norms, an appeal has to be filed within 90 days. The state seems to have decided to approach the Supreme Court now as a response to the petition for compensation."

Shetye's lawyers are confident that the HC verdict will be upheld. "The judgment clearly indicts the prosecution and the police machinery for falsely implicating an innocent person. There were many lapses on the part of the prosecution," Panchal added.


In his application claiming compensation, Shetye had said besides being in jail for a crime he did not commit, his life had been turned upside down—he could not perform his father's last rites, his wife left him and remarried, and his two daughters were sent to an orphanage.

Shetye, who used to work in a hotel in Ghatkopar, was arrested on July 29, 2009. He later found out that he was charged with raping a 28-year-old woman from Aurangabad sleeping on a railway bridge at Ghatkopar station 10 days ago. In 2010, a sessions court convicted him and sentenced him to seven years'jail. By the time, the HC decided his appeal, he had served his jail term.


In 2015, the HC had found no evidence to link Shetye to the murder. The victim had said that the man who raped her was "Gopi" and the court said that the police themselves had floated the theory that "Gopi" was Gopal Shetye.


The HC had also picked holes in the police case—Shetye was shown to the victim in the police station before the test identification parade and the investigation agency had not produced the CCTV footage. "This was a case where the identity of Shetye as the culprit had not been satisfactorily established," the HC had said. "The investigation had not been satisfactory. No serious efforts were taken to find out the truth or to collect evidence."


 Honourable  Judges Do Your  Duty or Resign
-          Judges , Police bound to pay for  case delays  
     We  once again appeal to Honourable CJI , Supreme Court of India  to take  action  on the following PILs  ,  to answer the show cause notice  and to order the concerned public servants  to answer RTI questions.  The officials of  SCI don’t even have  etiquette , decorum to reply to our letters. Some of  my  appeals  are  two decades old.
     Remember  the basic fact  you are all enjoying 5 star pay , perks  at the expense of public and owe your duty to public.  Are  not  judges  drawing  huge  salaries , 5 star  pay , perks on time without fail ,  on 01st of every month? Have they forgotten to take salary in 25 years , but they keep cases pending for  20 - 25  years.  CJI   weeping   before   Prime Minister shows the weakness of  the judiciary & a shame to the nation.  Judges  never consider  sufferings of  weeping  litigants in cases.   Judges themselves are responsible for  long pending cases.
   Don’t  refer  the case  to police as they don’t  have power , authority to enquire high & mighty people , judges  &  previously they have failed  and  the case  is  to subject  some police officials , judges themselves to enquiry. Referring the case to police  is nothing but attempt to bury the truth , only  supreme court monitored  transparent enquiry by CBI  is right.
   Delaying  tactics of  judges is only  helping the criminals , anti nationals and terrorists. Please  refer  below mentioned  sample cases  of  Justice delayed for years to innocents , sufferings  of their family members. No judges , police are bothered. Are not the the respective judges , police  guilty of defaming those innocent persons , spoiling their livelihood , gross violation of their civil rights ? why not those guilty judges , police are paying compensation to victims of their wrong actions ?  But  the very same  guilty judges , police are  SHAMELESSLY  enjoying  5 star pay perks from public exchequer  for  decades.
  Bail system , Parole system are in favour of rich crooks in india , cases of rich crooks move at faster  pace  wheeas the cases of poor which are although older still continues. Judiciary , it’s system are biased. Consider the  sample cases of sanjay dutt , salman khan , jayalaita. Our judges , Police  don’t have spine to  enforce rule of law on rich crooks , while they put full  force , might on poor innocents.

If  anything untoward happens to me or  to my dependents Chief Justice of India  together with jurisdiction police &  District Collector  will be responsible for it.

Rot in judiciary is decades old. Honourable CJI sir , weeping is not right constitution of india has given you  the authority , TAKE ACTION DO YOUR DUTY.  People , History will remember you forever with respect. Anyway you are getting very good 5 star pay & perks , will also get decent pension after retirement from government. First  forget about post retirement  postings , discretionary allotment of sites , etc from government then you can work fearlessly. Both central & state governments are  biggest litigants in the country , IAS babus make wrong application , interpretation of laws  leading to litigations. Start by clearing the rotten eggs within the judiciary. When judiciary & police  in a country strictly uphold law , work impartially that country  surpasses even heaven.
Do remember on the D Day , in the   Court of Almighty  everybody CJI , Judges , prime ministers , common man alike  has to bow his head. In who’s  court there is no match fixing , no techinicalities , no vociferous hi fi advocates , no bias based on caste , religion , region , community , etc , only  straight simple account of wrongs & rights. Guess  his judgement in your case. GOD  BLESS US  ALL.
Jai Hind. Vande Mataram.
 Date : 08.06.2016………………..Your’s sincerely ,
Place : Mysuru…………………..Nagaraja.M.R.


After 29 years, man acquitted of stealing Rs 57

 

KANPUR: Some times justice delayed is not merely justice denied but downright cruel. Wrongly accused of pocketing Rs 57.60, postman Umakant Mishra remained suspended from his government job for nearly 30 years. He retired three years ago and was absolved of the charge in a court last month, but he remains a shattered man.

Umakant worked in a post-office in Harjinder Nagar area of Kanpur. Department authorities at the post office handed Mishra Rs 697.60 in cash to distribute as money-order. Of the total Rs 697.60, Umakant distributed Rs 300 and the rest he claimed to have returned to his senior colleagues. But they accused him of stealing Rs 57.60 and lodged an FIR against him.

That was on
 http://timesofindia.indiatimes.com/photo/26759542.cmsJuly 13, 1984. A case was registered against him for stealing Rs 57, and he was promptly suspended. The police booked him for criminal breach of trust.


It took nearly 350 hearings and 29 years for Umakant to prove himself innocent, but the loss he suffered in this period was enormous. The judgment was delivered by a metropolitan magistrate on November 25.


Umakant wept when he was approached for an interview. Struggling to find words, Umakant said, "I retired three years ago and remained suspended for nearly 26 years. I have no idea what to say or do."


His wife Geeta said, "I am relieved and happy with the verdict, but if we'd got justice at the right time, our children's career wouldn't have got ruined. We lived with the stigma and financial trouble for so long that our future is destroyed."



"This is apathy at its worst. We lost everything, borrowed money for our livelihood, children's education and marriage," she said. "Without regular income, we had trouble arranging for the education and marriage of our children. We sought donation to marry off our two daughters. Since we could not educate our children, our son Ganga has an insecure job.

 

Maharashtra: After acquittal, man wants back 7 years lost in jail

 

Shetye is now sitting on hunger strike seeking to meet Devendra Fadnavis and demanding that seven years of his life be returned.

 

With the uproar over actor Salman Khan getting bail on the same day of his conviction still fresh in the mind, comes a heart-rending story that highlights how our justice system works.
40-year-old Gopal Shetye was acquitted by the Bombay High Court on Thursday. However, there was nothing to rejoice for this man except the consolation of being proved innocent. Shetye is now sitting on hunger strike at the Azad Maidan seeking to meet Chief MinisterDevendra Fadnavis and demanding that seven years of his life be returned during which his world turned upside down.
His release came three months after he had completed his seven year sentence in a rape case. Shetye of Nagpur's Narked had appealed in 2010 after he was convicted by the fast track court in Mumbai's Sewri.
Lawyer Ramesh Majgaonkar said Shetye had twice applied for bail before the Bombay High Court but these were rejected. It was his third bail application that bore fruit.
During the incarceration, Shetye lost his father, his wife remarried (with his consent) and his two little daughters were left in an orphanage. "I want seven years of my life back. I demand justice," said Shetye. The order overturning the conviction reveals how the police tried to frame an innocent.
"Since the whole accusation against the appellant was based on a solitary piece of evidence - his identification as the culprit not previously known to her - by an illiterate victim, who also came from a lower strata of the society and who could, therefore, be susceptible to the suggestions from the investigating agency, it was not safe to base the conviction of the appellant on such a piece of evidence," the high court observed.
Justice Abhay Thipsay concluded that the identity of Shetye has not been satisfactorily established and hence overturned the conviction.

 

 

Justice delayed is justice denied, President Pranab Mukherjee says on pendency of cases

Chief Justice of India Tirath Singh Thakur said if bar association cooperates, judges will be ready to work even on Saturdays to clear pending cases.



President Pranab Mukherjee on Sunday said justice delayed is justice denied, and pitched for speedy and affordable justice to all. He said there are over three crore cases pending in various courts across the country, reported IANS. "The government and the judiciary are collectively addressing this issue through an ongoing increase in the sanctioned strength of judges. These posts need to be filled quickly,” he said while addressing the 150th foundation day of the Allahabad High Court.
Chief Justice of India Tirath Singh Thakur, who was also present at the event, said bar association has "not been very very cooperative" in disposal of cases, reported PTI. He said he can assure the lawyers that if bar cooperates, judges will be ready to work even on Saturdays to clear old matters, especially related to people languishing in jail for years. He also said the country's judiciary, as an institution, is facing crisis of credibility, and asked judges to be conscientious of their duties.
During the Patna High Court centenary celebrations on Saturday, Prime Minister Narendra Modi had expressed concern over the large number of cases pending in courts for years. He had suggested that the courts should come out with an annual bulletin, mentioning the number of pending cases to help judges and lawyers tackle them in a time-bound manner.The CJI was also present at the event.

A Chief Justice of India says "I am sorry" but 30 years too late


By Shanmugham D Jayan and Raghul Sudheesh
When a former Chief Justice of India apologises for a judgement, that’s big news.  And Justice P N Bhagwati was not just apologising for any judgement.
He was admitting his “mistake” about  a case the New York Times called close to the Indian Supreme Court’s “utter surrender” to an absolutist government.
That case was ADM Jabalpur, popularly known as the Habeas Corpus case. On 28 April, 1976, during the Emergency, the Supreme Court had to decide if the Court could entertain a writ of habeas corpus filed by a person challenging his detention. The High Courts had already said yes. But the Supreme Court went against the unanimous decision of all the High Courts and upheld the right of Indira Gandhi’s government to suspend all fundamental rights during the Emergency. Four judges ruled for the government. One of them was Justice P N Bhagwati.
The lone dissenter was Justice H R Khanna.  The New York Times wrote at that time:
If India ever finds its way back to freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week.
http://s4.firstpost.in/wp-content/uploads/2011/09/Justice-Bhagwati.jpg
Justice Bhagwati was admitting his “mistake” about a case the NY Times called close to the Indian Supreme Court’s “utter surrender” to an absolutist government. Reuters
Now 30 years later Justice Bhagwati says in an interview withMyLaw.net   his judgment was “an act of weakness.” He also says, “it was against my conscience...That judgment is not Justice Bhagwati’s.”
This might sound like a brave mea culpa on his part. But unfortunately it leaves a lot to be desired.
First of all there is Justice Bhagwati’s own track record of having his ear finely tuned to the prevailing political winds.
Justice Bhagwati has praised Indira Gandhi government during the Emergency and later criticized her during the tenure of Janata government. When Indira Gandhi came back to power, he wrote a letter congratulating her.
Here’s an excerpt from that letter:
“May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as the Prime Minister of India...I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”
What this really shows is that CJI Bhagwati might have gone against his conscience but certainly not against his career trajectory. Justice H R Khanna, who dissented in that Jabalpur case should have become the CJI because of his seniority. But he paid the price for that dissent. He was superceded by Justice Beg. Justice Bhagwati would likely have met with the same fate of Justice H R Khanna had he dissented.
This is not the only issue where Justice Bhagwati has made a volte face.
Take the mysterious collegium system by which Supreme Court justices are appointed which has come under heavy criticism for being an unaccountable opaque cabal. It was Justice Verma who created the collegium system but in theFirst Judges Case (the SP Gupta case) Justice Bhagwati wrote about it: “There must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge”.
Justice Bhagwati’s mind has now changed about that as well and he says he is against the collegium system in toto.
His own track record as a judge has also raised legal eyebrows.
Noted constitutional law jurist HM Seervai has criticised Justice Bhagwati for merely copying justice Krishna Iyer’s judgment in the Som Prakash case and incorporating it into his judgment in the Ajay Hasia case.
In a landmark case of constitutional law, popularly referred to as the Minerva Mills judgment, Justice Bhagwati wrote: “Unfortunately we could not be ready with our judgment and hence 9 May,1980 being the last working day of the Court before the summer vacation we made an order expressing our conclusion but stating that we would give our reasons later.”
A judge of the Apex Court saying "I am not ready with my reasons but this is my conclusion" anyway sets a deplorable standard for the Indian judiciary.
Justice Bhagwati writes, that after the Emergency he realized the mistake of Jabalpur and he practically rewrote Part III and Part IV of the Constitution; particularly Articles 14, 19, 21 and 32. A judge claiming that he is “writing” the Constitution, as opposed to interpreting it is unorthodox to say the least.
These days Justice Bhagwati is more in the news because he is a trustee with the beleaguered Sathya Sai Trust. As financial scandals  rock the Sai Baba’s spiritual empire, the trust relies on people of the eminence of  a former CJI to give it some credibility. Immediately after the demise of Satya Sai Baba Justice Bhagwati was appointed as chancellor of the Sri Sathya Sai  Institute of Higher Learning (Deemed to be University). Recently in an interview given to The Times of India  Justice Bhagwati said: “Sai Baba, my god, dictated my every single judgment”.
People will make of that what they will. But the real question now is what does this apology mean for the Indian judiciary. Some will think its proof of the self-correcting mechanism of the Indian judiciary. But it’s also proof of something much more damning - that political equations play a crucial role in the appointment of judges and the judgments these judges deliver.
What happened in the Habeas Corpus case was not a momentary lapse in judgment. It was a disgrace to the Supreme Court, and more so because Justice Bhagwati says it went against his conscience, even then.
This belated apology does not restore the faith of people in judiciary. The only way to do that is to have an independent judicial commission appoint judges and bring in transparency in every stage of their appointment.
It may save us from a Bhagwati-style apology another 30 years later.

Bastar, India, where the innocent lose years in jail

In a tough stance against Maoists, police incarcerate people for years, only to release them for lack of evidence



BASTAR DISTRICT, India — Irpa Narayan limps as he walks the jungles around his village, Bellamnendra — an injury from the seven years he spent in jail for suspected anti-state activity before being acquitted. He was forced to sit six hours a day with his knees pressed to his chest in an overcrowded cell of the Jagdalpur Central Jail.
After being jailed for more than five years, he faced trial in 2013. In January 2014, he was finally granted bail. However, the bail required him to deposit 10,000 rupees ($150) in the courts as bond. Since he could not afford that sum, he remained locked up as his case dragged on.
He was acquitted in June 2015 after a judge found no reason for his incarceration.
“I was taken to jail for no reason and kept there for no reason,” said Narayan, 32. “And now I have to start building my life from scratch.”
Experts say his story is shockingly common: More than 96 percent of those arrested from 2005 to 2012 in the five districts of India’s central Bastar district were set free by the trial courts because of lack of evidence, and two-thirds of those arrested spent two to five years in jail before facing trial.
This is according to the Jagdalpur Legal Aid Group, a nonprofit group based in Bastar that filed right to information applications in 2013 to obtain relevant government records.
“In other parts of the country, the police work toward getting evidence so the accused can be convicted. Here the purpose of the arrests is not to get them convicted. Most of the cases are false anyway. It is just to intimidate the local populace,” said Shalini Gera, a lawyer with the group.
Because data from close to four dozen police stations in Bastar region are not digitized, the only way to arrive at the number of people who are arrested is by looking at the number of people who are incarcerated.
According to National Crime Records Bureau figures for 2013, while detention facilities in Chhattisgarh are designed to accommodate 5,850 people, there are 14,780 inmates. This figure includes convicts and people awaiting or under trial.
The facilities in Bastar are overcrowded, at 252 percent to 400 percent of capacity, compared with the national average of 112 percent, according to India’s National Crime Records Bureau.

False arrests

In Chhattisgarh, for more than three decades the government has been fighting a bloody battle with a leftist guerrilla group commonly referred to as Maoists. The mineral-rich areas of the state have attracted large corporations from all over India.
While the government quells all opposition to mining, some Maoists fight to keep industrialization out of the jungles. This battle drives a wedge between those who support the government and those who support the Maoists. These divisions are quiet, however, because if they took sides openly, they would risk the ire of the opposing party.
False arrests are just one tactic used to scare people from speaking out against government policies, according to Alok Shukla, the community organizer for Chhattisgarh Bachao Andolan, a cluster of nonprofit organizations working in the state. “The authorities are trying to ensure that the Maoists get as little support from the local population as possible,” he said.
Most of these cases need not be tried at all, said Gera. The courts reserve the right to dismiss them on the basis of inconsistencies in the first information report and the charge sheet filed by the police. In Narayan’s case, for example, the report, filed in February 2008, indicates he was arrested for possessing a bow and three arrows and being present in the jungles in the midst of a police gunbattle with Maoists. Al Jazeera America has seen the documents, which appear to be hastily handwritten notes.
But Narayan lives in those jungles. And it is common for Adivasis, India’s indigenous people, to use bows and arrows to hunt. Since the report does not say that he was wielding a gun or participating in the battle, the court could have dismissed the case or instructed the police to dig for more evidence before they booked a case.
But “courts won’t risk dismissing cases in these areas, for the fear of being termed pro-Maoist,” said a local lawyer who requested anonymity to avoid possible reprisals. “In other parts of the country, a case such as Narayan’s would hold no water, as it is weak in its details and evidence. In Bastar, such cases are abundant.”
Narayan’s account of that day differs significantly from the police version. He said he was sitting on a cane cot in his hut, sipping black tea when half a dozen paramilitary forces approached him. He said they shot two bullets in the air to scare his neighbors away and then informed him that he was being arrested for “anti-state activities” and being a Maoist supporter.
Indian Prime Minister Narendra Modi visited Bastar in May and witnessed the signing of multimillion-dollar agreements for Ultra Mega Steel Plants and railway lines to aid those plants. According to Shukla, there has been an escalation in such arrests since then, although official figures are not available.
Gera’s phone is constantly busy with calls from all over Bastar from people seeking her help for what they say are false arrests. “We can’t take on all the cases, even though they are equally important,” she said.  “We are happy on the days when we get less than half a dozen distress phone calls.” 
The local people have been forest dwellers, and the forest is their main source of livelihood. “Locals are with the Maoists in this. We do not want industry that would destroy our livelihoods and render us unemployed,” said a resident of Rowghat, in eastern Bastar, speaking on condition of anonymity because he fears he would be targeted by the government for speaking out. 
Bastar’s inspector general has not responded to Al Jazeera America’s questions and interview requests.

Gang-raped by police

india's prisons
NGOs have been pushing for investigations into claims of sexual violence against incarcerated women in India.Jagadeesh NV / EPA / Corbis
In January 2008, a 17-year-old girl from Sukhma district was arrested by the police for allegedly being involved in the killing of 23 paramilitary personnel. She was kept in a police station for 10 days without being charged.
There, she said, she was repeatedly gang-raped by policemen before being taken to a judge. She said that she couldn't muster the courage to tell the judge what the police had done to her and that she was so weak, she could barely stand up.
The judge remanded her to the Jagdalpur Central Jail. For more than seven years, she was kept in a cell that held about 35 inmates. Most of the women there were detained on false charges of being Maoists, the woman, now 24, said.
She spoke to Al Jazeera on condition of anonymity because of the social stigma that rape carries.
She said the brutal rapes damaged her genitals and her intestine. “Yet I had to plead for medical care to be given to me,” she said. Whenever she did, she was taken to a doctor. But her health gradually worsened. She still experiences debilitating pain in her stomach and pelvic region.
“The problem with court proceedings of most of these cases is that the witnesses are all police personnel,” said Gera. In other parts of the country, police are allowed to be witnesses, but their testimonies are given less importance. They are expected to bring in other, objective witnesses to crimes.
Bastar, though, is India’s most militarized region. And in many cases, the only witnesses are the police. The courts are left with little choice.
Two policemen said they witnessed the girl’s criminal activities, according to official police documents. But they didn't show up in court for her case for more than a year, claiming they were busy with work in other areas of the state or were on leave.
When they finally appeared, they said they had little information regarding her involvement, and they did not have any evidence against her.
The girl was released — acquitted for lack of evidence — in March. Now 24, she said she has only two reasons to be sad: In a country where rape is stigmatized, she believes no one will ever marry her, and she has friends in the jail who are as innocent as she and remain incarcerated.
“I wish I could do something to ensure they return safely,” she said, with tears in her eyes. 

Fifty-four Years In Jail Without Trial: The Plight Of Prison Inmates In India
By Parwini Zora

Machang Lalung, aged 77, was released from incarceration last month in the northeast Indian state of Assam after spending more than half a century behind bars awaiting trial.
Lalung had been arrested at his home village of Silsang in 1951 under section 326 of the Indian Penal Code for “causing grievous harm.” According to civil rights groups who have investigated Lalung’s case, there was no substantive evidence to support the charge against him. In any event, those found guilty of this offence typically receive sentences of no more than 10 years’ imprisonment.
Less than a year after he was taken into custody, Lalung was transferred to a psychiatric hospital in the Assamese town of Tezpur. Sixteen years later, in 1967, doctors confirmed that he was “fully fit” to be released, but instead he was transferred to Guwahati Central Jail, where he was imprisoned until this summer.
“It seems the police just forgot about him thereafter,” Assamese human rights activist Sanjay Borbora told the BBC. Borbora was among those who brought Machang’s case to the attention of the National Human Rights Commission (NHRC). As a result of the Commission’s intervention and other protests, Lalung’s case was finally heard and he was released after paying a token bond of one Indian rupee.
“He is a simple villager and his life has been destroyed by a cruel system. He should sue the authorities for millions of rupees, but I do not think he is even aware he could do it,” said Borbora.
According to a Scotsman.com news report, the NHRC has taken up the cases of four other men awaiting trial in Assam: Khalilur Rehman has been in custody for 35 years, Anil Kumar Burman for 33 years, and Sonamani Deb for 32 years, while Parbati Mallik has been detained in a psychiatric unit for 32 years.
Though these individual cases have now gained media attention, the phenomenon of accused persons having to endure unconscionable delays awaiting trial is the norm in the Indian justice system. In 2002, some three quarters of all persons held in Indian prisons had not been sentenced to jail, but were “under trial”—that is, awaiting trial.
The largest number of under-trial or remand prisoners is to be found in the jails of Uttar Pradesh, Manipur, and Meghalaya, where more than 90 percent of the prison population have reportedly not faced trial.
According to a National Crime Research Bureau (NCRB) study, Crime in India 2002, nearly 220,000 cases took more than 3 years to reach court, and about 25,600 exhausted 10 years before they were completed. A staggering number of prison inmates awaiting trial have already been imprisoned longer than the most rigorous sentence that they could ever be given for the offence they are alleged to have committed.

A long record of appalling conditions
Many of India’s prisons date back to the era of British colonial rule, with thousands of prisoners kept in crumbling facilities largely unchanged since the beginning of the last century. The only major all-Indian prison reform ever implemented dates back to the Indian Jails Committee of 1919-1920.
The Indian prison system perpetuates many of the injustices of the penal system set up by the British. For example, inmates of foreign origin or of high caste and social status are routinely imprisoned under relatively better conditions and segregated from those inmates who are poorer and of lower social position. Larger or less-crowded cells, access to books and newspapers, and more and better food are offered to those prisoners classified as “Status A” prisoners.
Meanwhile, the poor and especially tribal and Dalit (ex-untouchable) inmates are subject to various forms of abuse, ranging from the denial of visitors and refusal to provide medical care, to prolonged labor, sexual harassment, rape and “concealed” physical and mental torture.
“Our judicial and penal system in its actual working obviously discriminates between the rich and the poor.... If you are poor and have once landed in jail—for whatever reason or no reason—the probability of your being back in jail off and on is fairly high,” concluded Raman Nanda, who complied a prison investigation in 1981, one of the few sources of information available about the Indian prison population.
“Most of those who are nabbed by the police and are unable to have themselves bailed out are the poor. Those with resources, the big criminals, the smugglers, corrupt politicians, tax evaders are people who are rarely caught. Thus our institutions penalise not the violators of law but the poor,” stated Nanda’s study.
In the 1980s, the All India Commission for Jail Reforms (The “Mulla” Committee) found that the majority of the prison population was from a “rural and agricultural background” and that first offenders involved in “technical or minor violations of law” accounted for a large number of prisoners. Many inmates are imprisoned for non-payment of fines or an inability to afford good legal representation.
Among the worst-affected groups are women with children and the mentally ill. Female prisoners account for 3.12 percent of the total jail population and are allowed to keep their children until they reach the age of five. According to available statistics, 1,400 children younger than five are accompanying their mothers in jails.
Last year, the Pakistan-based Dawn news site quoted Zahira, a mother of two and woman prisoner in the Trihar prison, as saying, “Our fate depends on the mood of the wardens or medical officer. I didn’t have regular check-ups during my pregnancy, which is against the rules. Irfan (her infant son) was not weighed at birth. There are no cribs, baby food or warm milk.”
The absence of adequate psychiatric institutions and medical services in India contributes to the large prison population. Individuals with severe mental illnesses, branded as “non-criminal lunatics,” are often imprisoned. With many mentally vulnerable prisoners left to suffer without support in a brutal environment, it is not surprising that there is a high rate of suicides of prison inmates and police detainees. However, there is also evidence that authorities term as suicides deaths that were caused by police and jail guard abuse.
The National Human Rights Commission (NHRC) was created as a statutory body in 1993 and has since periodically issued directions about jail conditions. It suggested a prison reform bill in 1996, but this has been ignored by various governments, including those led by the Hindu-supremacist Bharatiya Janata Party (BJP) and Congress and supported by the Left Front.
In fact, there is evidence that the situation facing India’s prisoners is getting worse. At the end of 2002, there were 322,357 inmates in the jails of 26 States and 6 Union Territories, although their authorised capacity was just 219,880, meaning there was overcrowding, according to the government’s own norms, of 46.6 percent.
The maximum overcrowding was recorded in the jails of Mizoram (442 percent), followed by Jharkhand (260 percent), Delhi (211 percent), Haryana (165 percent), Andaman and Nicobar (139 percent) and Chhatisgarh (115 percent). As compared to the previous year, it was noted that jail overcrowding had increased in the states of Delhi, Madhya Pradesh, Goa, Uttar Pradesh, Andhra Pradesh and the Andaman and Nicobar Islands.
New Delhi’s Tihar Prison, also known as the “Central Jail,” is said to be the world’s largest prison facility. Although built to house 4,000 inmates, it currently holds 12,000, 80 percent of whom are awaiting trial.
Starting with the 1991 reforms, the Indian bourgeoisie has been imposing rigorous cuts in education, health care, social services and agricultural subsidies. The unprecedented social devastation and growth of inequality that has resulted from the policies of successive Indian governments have found partial expression in the country’s growing crime rate. The police have responded to this social crisis with frequent arbitrary round-ups in poor areas and discrimination against socially vulnerable sections of the working masses.

Rising number of custodial deaths and abuse
The police repression that has accompanied the past 14 years of free-market economic reforms has caused India’s already antiquated and overstretched prison system to descend into an even greater state of chaos and human misery. According to Indian Home Ministry records, deaths while in remand or custody increased from 1,340 in 2002 to 1,462 by the end of 2003. According to an NHRC report, a large proportion of the deaths in custody were from natural and easily curable causes aggravated by poor prison conditions. Tuberculosis caused many deaths, and HIV/AIDS remained a serious health threat among prison inmates.
Non-governmental organisations that deal with prisoner abuse allege that deaths in police custody, which occurred within hours or days of initial detention, often implied violent abuse and torture. The Home Ministry reported that there were 28,765 complaints lodged against police for April 2003 for abuse including deaths. In May of last year in Ambedkarnagar, Uttar Pradesh, police arrested a daily labourer and tortured him when he failed to pay a Rs. 50,000 (US$1000) bribe. According to media reports, police admitted the victim to the hospital under a false name after injecting him in the rectum with petrol.
Police also threatened to harm his family if he reported the incident. In July 2004, the NHRC requested a report from Punjab’s Inspector General of Prisons after a man incarcerated in Amritsar’s Central Jail claimed the Deputy Superintendent and other prison officials branded him on his back when he demanded water and better treatment. Doctors found fresh scars on his back that had been inflicted with hot iron rods. By year’s end, no action had been taken.
The rape of persons in custody is also part of the broader pattern of custodial abuse. Prisoner charities argue that rape by police, including custodial rape, was more common than NHRC figures indicate, since many rape incidents go unreported due to the victims’ shame and fear of retribution.
A statement from the Asian Legal Resource Centre, on custodial deaths and torture in India, handed to the National Human Rights Commission and to the Sixty-first Session of the UN Commission on Human Rights in Geneva, notes: “Any person, who dares to complain about police officers in India, faces the wrath of the law enforcement agency.
Abhijnan Basu, who was serving his prison sentence at the Presidency Jail, West Bengal, was one such person who was not so lucky. Officers at the prison murdered him because he dared to complain about the inhuman conditions and the poor quality of food. Three prison wardens set him ablaze on November 12, 2004.
“Torture in India is widespread, unaccounted for and rarely prosecuted. It contributes to the state of anarchy and lawlessness in many parts of the country. Torture is used as a cheap and easy method of investigation and also as a tool for oppression. In the hands of the wealthy and influential, Indian law enforcement agencies have also strengthened links with criminal elements. Even the judiciary in India cannot sever this nexus, between police and criminals.”
The state of India’s penal and justice systems speaks volumes about the true nature of human rights and social equality in a country routinely held up by the Western media as the “world’s largest democracy.”


8 People Who Were Executed and Later Found Innocent

It’d be nice to think our judicial system is totally infallible, but unfortunately, that’s just not the case. Innocent people are convicted of crimes they didn’t commit more often than anyone would like to admit, and in some cases, people who were later found to be innocent have actually been put to death.
Here are 8 people who were executed and innocent.
1. Cameron Todd Willingham—In 1992, Willingham was convicted of arson murder in Texas. He was believed to have intentionally set a fire that killed his three kids. In 2004, he was put to death. Unfortunately, the Texas Forensic Science Commission later found that the evidence was misinterpreted, and they concluded that none of the evidence used against Willingham was valid. As it turns out, the fire really was accidental.
2. Ruben Cantu—Cantu was 17 at the time the crime he was alleged of committing took place. Cantu was convicted of capital murder, and in 1993, the Texas teen was executed. About 12 years after his death, investigations show that Cantu likely didn’t commit the murder. The lone eyewitness recanted his testimony, and Cantu’s co-defendant later admitted he allowed his friend to be falsely accused. He says Cantu wasn’t even there the night of the murder.
3. Larry Griffin—Griffin was put to death in 1995 for the 1981 murder of Quintin Moss, a Missouri drug dealer. Griffin always maintained his innocence, and now, evidence seems to indicate he was telling the truth. The first police officer on the scene now says the eyewitness account was false, even though the officer supported the claims during the trial. Another eyewitness who was wounded during the attack was never contacted during the trial, and he says Griffin wasn’t present at the crime scene that night.
4. Carlos DeLuna—In 1989, DeLuna was executed for the stabbing of a Texas convenience store clerk. Almost 20 years later, Chicago Tribune uncovered evidence that shows DeLuna was likely innocent. The evidence showed that Carlos Hernandez, a man who even confessed to the murder many times, actually did the crime.
5. David Wayne Spence—Spence was put to death in 1997 for the murder of three teenagers in Texas. He was supposedly hired by a convenience store clerk to kill someone else, but he allegedly killed the wrong people by mistake. The supervising police lieutenant said “I do not think David Spence committed this crime.” The lead homicide detective agreed, saying “My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved.”
6. Jesse Tafero—In 1976, Tafero was convicted of murdering a state trooper. He and Sonia Jacobs were both sentenced to death for the crime. The main evidence used to convict them was testimony by someone else who was involved in the crime, ex-convict Walter Rhodes. Rhodes gave this testimony in exchange for a life sentence. In 1990, Tafero was put to death. Two years later, his companion Jacobs was released due to a lack of evidence…the same evidence used to put Tafero to death.
7 & 8. Thomas Griffin and Meeks Griffin— The oldest case on this list dates back to 1915. The Griffin brothers, two black men, were convicted of the murder of a white man. The reason they were convicted is because Monk Stevenson, another black man suspected of committing the murder, pointed to the brothers as having been responsible. He later admitted the reason he blamed them is because they were wealthy, and he assumed they had the money to beat the charges. The Griffin brothers were completely innocent, but they were put to death nonetheless.

Presumed Guilty: After 14 wasted years in prison, life begins anew

n the night of 20 February 1998, in the Sadr Bazaar area of Delhi, a young man walked to the neighbourhood hakeemseeking treatment for a persistent kidney stone problem. The 18-year-old had just said his namaaz at the Madrasahwaali Masjid and, in pain, decided to walk across the desolate marketplace — by day this is one of the busiest spots in the city, but at night it empties like a sieve — even more so in the '90s, when Indian retail did not shriek with the vehemence of today.
As the boy walked he noticed an unmarked white Maruti Gypsy sidle up along the kerb behind him. It moved slowly, prompting him to quicken his pace, though he continued to walk, staring ahead. The Gypsy overtook him and then, without warning, a pair of hands shoved him in the back. He raised his hands to protect himself from falling, but before he knew it he'd been hauled into the Gypsy. Blindfolded, hands tied and mouth gagged in a matter of seconds, trapped in a mélange of elbows, insults and accents, he was driven to a destination 40 minutes away and deposited in a room. Here he was routinely beaten, tortured, fed at the rarest possible intervals, and made to sign blank papers and disclosure agreements. There was no question of providing access to legal representation.
The boy left that room seven days later, when he was taken to Delhi's Tees Hazari Court to be charged with 17 cases of murder, terrorism and waging war against the nation. By the time he was acquitted of the charges brought against him — the High Court ruled that any evidence connecting the accused to the bombings was "woefully absent" — Mohammed Aamir was 32 years old. He spent 14 years "ground in the mortar and pestle" of the Indian justice system (main kanoon ke chaal mein pis kar aa raha hoon). In the years before he could once again walk into the modest room in Azad Market where he was born, his father had died, his mother left mute and paralysed by a stroke.
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Mohammad Aamir gives this account of the events of that night and the following years. The version presented by the investigative authorities to the courts is remarkably different, starting with the date Aamir was purportedly taken into custody (seven days of detainment without being presented to a judge is a violation of one of the foundational writs of the Indian Constitution, Habeas corpus; it is regularly argued in cases like this that security agencies misrepresent the date they picked up a prisoner so they are not in violation of this writ).
28 February 1998, when Aamir was produced before the Tees Hazari Court, the investigative authorities said they picked him up with an array of incriminating evidence on his person. One wonders why an 18-year-old terrorist mastermind would carry to a rendezvous — amidst a Webley & Scott revolver, live cartridges, American currency and diaries with details of explosive materials — his ration card, birth certificate, school character certificate, school identity card, and even marksheets from Class 5 and 7 from his school in Farashkhaana.
As has been reported in Two Circles (the website that broke the story) and The Hindu, the police version is pocked with allegations that only throw up more questions — the reason the cases were summarily dismissed by almost every judge they came before. The police claim that they came upon Aamir and the youth he planned the 17 bombings with, Shakeel, via two Bangladeshis they had been tracking. This version holds that they saw these two Bangladeshis leave Aamir's house in Sadr Bazaar and so followed them to Old Delhi Railway Station, where they rendezvoused with Aamir and Shakeel (Shakeel, the other alleged "mastermind", was found in 2009 hanging from the ceiling in his cell in Dasna Jail; later, Jail Superintendent V.K. Singh was charged with his murder). The prosecution did not make clear why Aamir and Shakeel would choose to rendezvous in a crowded railway station if the Bangladeshis were already staying with them.
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Aamir was driven to a destination and deposited in a room, where he was routinely beaten, tortured, fed at the rarest possible intervals, and made to sign blank papers and disclosure agreements.
In 1996 and '97, a rash of "low-intensity" terrorist attacks in the National Capital Region had security agencies worried by their failure to find conclusive leads in any of the cases. There is some indication that the attacks were part of a concerted campaign; each explosive device had similar constituent ingredients. The investigators alleged that Shakeel and Aamir admitted in their respective disclosure statements to making these bombs in a small factory in Pilakhua. Yet, as the courts have now recorded, the public witnesses present during the raid on the factory in Pilakhua flatly refused to support the prosecution. Chandra Bhan, the prosecution's "star witness", told the court that he was taken to Chanakyapuri police station and made to sign blank papers.
Of the 17 cases brought against Mohammed Aamir, he was found Not Guilty at the Sessions Court level in 12. He was found Guilty in three cases, for which he was given life imprisonment in one (FIR 631) and 10 years in the two others. These immediately went on appeal to the High Court. On 4 August 2006, Justices Sodhi and Bhasin of the Delhi High Court, pronouncing on the case for which Aamir was given life imprisonment, said: "The prosecution has failed miserably to adduce any evidence to connect the accused-appellant with the charges framed, much less prove them. Accordingly, the appeal is allowed and the judgment of conviction...set aside."
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This, sadly, was not the end of Aamir's legal trouble. In 2007, when he was close to completing the 10 years mandated (notwithstanding that both cases remained on appeal), two more cases were brought to trial, this time for bombings in Rohtak and Ghaziabad. Proper procedure suggests these cases should have been initiated when Aamir was first incarcerated, in 1998. Holding off until 2007 meant he was forced to remain in police custody even after he completed his ten years inside, something his lawyer, N.D. Pancholi, terms "customary mischief-making". It was only in January 2012, when those cases were completed — he was found Not Guilty again — that he was allowed to return home.
By coincidence, the same week Aamir was released, The New Yorker published Adam Gopnik's remarkable report on patterns of incarceration in the United States ("The Caging of America", 30 January 2012). From the introduction: "A prison is a trap for catching time. It isn't the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmate. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment." Aamir's 14 years in prison, on charges refuted adamantly from the outset, devastated his life and ambitions in ways hard for us to comprehend.
Sitting in the same small room with cracking walls in Sadr Bazaar that the authorities called a terrorist hideout and he calls home, Aamir tells the tale of his incarceration: "After my first appearance, at the Tees Hazari court in '98, I was put on remand for 10 days, so I was taken to a police station. After they had elicited 'admissions' that I was involved in all the blasts in the NCR between '96 and '98, I was moved from station to station, still on remand, because they wanted to file FIRs in each of the cases. This went on for two and half months. When finally in April or May I was sent to Tihar Jail it came as a huge relief. To be in police remand is the worst — first they do their 'questioning', where I'm sure you know what all takes place. In jail it is better. In the police station, even at night, the guys guarding your cell will come and abuse you, kick you around a bit, call you 'katua'.
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"I then spent almost nine years in Tihar Jail, where I managed to do some reading about my legal circumstances." He pulls out two tattered books, the Constitution of India and a book of legal norms, both in Hindi, and a purple folder of see-through plastic filled with carefully highlighted and annotated legal papers. Picking up the Constitution, Aamir says: "The thing is, I still have a lot of faith in this document. I have not been to college, but I have read this book from cover to cover and I know it can protect those who need it. It is people who ruin what this book stands for. Actually, even that is too harsh. During my 14 years inside the system I met all kinds of people — some people were very good to me. Some were terrible. There are all kinds of people on earth, that is something I have learned.
"Then I was sent to Ghaziabad's Dasna Jail, which was even tougher. I spent more than three years there, and perhaps 90% of the time was spent in high-security, normal procedure for people booked in terrorism cases. You have to spend 22 out of 24 hours in absolute isolation. For months on end you barely communicate with anyone at all."
Gopnik quotes in his article an essay Charles Dickens wrote in 1842 upon visiting a solitary confinement wing in an American prison: "I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay."
The effects of this prolonged — and, the courts now agree, unjust — detainment on Aamir are discernible during longer conversations. He has a stilted way of talking, and his face will periodically break into a nervous smile. If making a long point, he sometimes loses the thread as he speaks. "I've noticed these since I got out. The doctor tells me I have high blood pressure now, and that I should try and get psychiatric counselling. I lose my temper from time to time" — this is harder to imagine, as he is exceedingly polite with us — "and shout at my nephew. It's been hard not to be able to talk to my mother. I would like to hear from her lips that she is happy I am out. But, bechaari, she cannot say anything."
******
This past Wednesday, in the sylvan quiet of the Gandhi Peace Foundation, I meet N.D. Pancholi, the High Court lawyer arguing Aamir's two pending appeals. It is perhaps an appropriate venue — J.P. Narayan was arrested from this spot in 1975, at the outset of the Emergency.
"It doesn't matter who is in power," he says. "The government very rarely exercises the control they should. They heed the security agencies, with their ears and eyes shut to anyone else — instead of directing them, the government is directed."
"I have been working on cases like this for 20 or so years now. Aamir's case is sad, but one of many." Ferozekhan Ghazi, Aamir's lawyer at the Sessions Court level, agrees: "After '95, these cases began to proliferate. I've worked on somewhere between 30 and 40 cases of this nature and have won acquittals in most. Remarkably, every Kashmiri whose case I've worked on has been acquitted — boys who came to the capital as businessmen and carpet sellers, picked up by the authorities and left to languish in jail for years."
So is the situation as bad as ever? Pancholi says things have become better since POTA [the draconian Prevention of Terrorism Act, 2002] was repealed. "Now most cases will be charged under the Unlawful Activities Act, or what Aamir was charged of, waging war against the nation. The number of cases might have reduced, but it is still a prevalent practice."
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Mohammed Aamir was also lodged in Delhi’s Tihar jail.
On a national level, the most deleterious consequence of such mala fide practices is their undercutting of resources, manpower and intelligence that should be used to prevent acts of terrorism in India. One tactic is to paint certain communities in a threatening light; Azamgarh was first pointed to as a hotbed of terrorist activity. Then, just after the High Court blasts in September, reports in all the leading newspapers, citing unnamed security sources, said Madhubani (in Bihar) was India's new "breeding ground of terror". Within weeks, Delhi Police arrested seven young Muslim migrants from Madhubani and charged them with involvement in the blasts. All seven, including the alleged "mastermind" were released in January, after the National Investigative Agency demanded the right to question them and exonerated them of all charges.
Muslim activists argue that such wanton arrests do little to curtail terrorist activity, and investigators ignore more dangerous threats to the integrity of the country. One activist, who asked for anonymity, said: "Can someone tell me why the Hizb-ut-Tahrir, an organisation that has been responsible for deaths over the world, is allowed to hold meetings in the heart of Delhi, on Lodhi Road? This organisation demands an Islamic kingdom uniting all Muslim countries. Indian Muslims have never espoused such politics — this is a genuinely worrying development. And our security agencies know all about them, yet don't stop them from meeting. Why is that?"
All the while, the Congress party continues to play its insidious double game with the Muslims of India, on the one hand sending stooges in skullcaps to places like Azamgarh to talk of tears shed and sorrows appropriated, on the other allowing the varied wings of its security forces to freely indulge in a deadly regime of religious profiling.
******
From the same purple folder containing his legal documents Mohammed Aamir pulls out a sheet of paper and hands it to me. "While I was in Ghaziabad prison, I won a competition for essay writing. I wrote on Mahatma Gandhi — I had just finished reading Experiments with Truth — and I beat every other prisoner in UP who took part. They took me to the Central Jail in Lucknow, where the Superintendent gave me Rs 200 and a T-shirt. I know these do not seem big things, but when you are in prison, the Superintendent is the badshaah, and we are all his ghulaam. If the badshaah says one good word to you, you feel great. Here, on that day, he talked to me with respect, even treated me as an equal."
It is haunting, this eagerness Aamir has to impress upon me his patriotism and respect for government authority. This system proscribed an extended and systematic reversal of his most basic human rights, yet Aamir speaks with the fervour of one who has tasted its bitterest truths. It is clear he cannot countenance another encounter. Perhaps this is one way to birth patriotism. I feel a sudden urge to throw his words in the face of every stalwart who can casually question the fidelity of 150 million citizens of India.
"I tried to spend my time in prison constructively," he says. "There are so many bad influences, but I tried to read and learn as much as I could. I kept faith that once I was out of this mess I would get a good job. That my country would once again treat me as its own."







Justice Delayed- Justice Denied
-        Bhaskar De

"Without Justice, life would not be possible and even if it were it would not be worth living" ......Giorgio Del Vecchio (Justice)

Notion as theory of law can be defined as a study based on presupposes or ideal which a men seek for its realization through law, called as Theory of Justice. The word justice has been derived from the actual concept of justness which acts as the primordial factor for any state to provide for its populace. The concept of justice was vitiated with various welfare, moral and psychological factors. Harmonious surveillance of these three features acts as a social tool, which makes justice accessible to all.

Justice is a generic term, which includes both procedural (Natural) and substantive (Social) justice. In India, justice has been adorned as the very embodiment of God, whose sole mission is to uphold justice, truth and righteousness. Under our Indian constitution Justice sets the ultimate goal for all of us to serve our nation. It is a mixture of natural and social justice as evident from Preamble and Part IV of our constitution. The concept of Justice being so important is used only twice in our Indian Constitution, i.e. in Preamble and in Art 39 A.

In Preamble it sets out as- to secure to all its citizens- Justice- Social, economic and political and Article 39 A states that the state to secure equal justice and free legal aid for the citizens.

Our current stress on justice itself is a reminder of the fact that justice is not available to us.

II. Democracy And Indian Judiciary

In a democratic country like India, judiciary plays a vital role in establishing a state of justice. Therefore being the watchdog, they are not allowed to shift their burden to others for their failure to establish an actual State of Justice. It is judiciary on which millions of people have struck their faith of getting justice. It has the capability of imparting justice to the aggrieved. It is that part of our constitution which acts as its Messiah. It is that structure of our society, which cemented its place next to the God and if not properly dispensed will shatter down the entire trinity of democratic instrumentalists with checks balances, parliamentary structure and the judicial facets of our constitution. Generally, aggrieved with lots of pain anguish and hope in their heart approaches the court of law for their grievances to be clarified but at the end of the day the procedural lacuna left them with bare hands. They are denied of their most important right of Justice.
In India, Justice is beyond the reach of most and the right of access to it is not communicated to the citizens properly. In many a circumstances it was found that the litigant who has had access to the court failed to obtain quick relief and for some never have the opportunity even to knock the doors of the court due to ignorance and poverty. If we want justice to be accessible to all, then it must be relieved from the Laissez faire pattern, where justice like other commodity can be purchased and initiative must be taken to educate the populace.

Quest for justice has nothing to do with procedure or jurisdictional aspect rather it cares for its speedy disposal. Delay in disposal of cases is considered as one of the most vexed and worrying problem. It is the code of procedures, which makes it so worse. However personality like Nani Phalkiwala opined that Justice in common parlance is considered as blind but in India it is lame too and hobbles on crutches. It is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much of time that even a generation is too short to get any type of redressal.

Procedures must be utilized to advance the cause of justice but in India it is used to thwart it. Justice is something which should be dispensed as early as possible otherwise it will be too late for a critic to add a common adage to that Justice Delayed is Justice Denied. Current situation shows that it will take more than 300 years to clear the backlog of cases in Indian courts. In Anil Rai vs. State of Bihar case, Sethi J stated that Delay in disposal of the cases facilitates the people to raise eyebrows, sometime genuinely, which if not checked, may shake the confidence of the people in this judicial system. Thereafter this problem of delay in justice delivery system had engaged attention of our law commission for a quite a long time. To cope up with this situation they have proposed several amendments. But the position retains unchanged.

III. Reasons For Delay In Disposal Of Cases

Firstly, Increase in litigation-people now days are in a habit of dragging their point of grievances to the court of law, which rather can be solved outside the purview of the court. Secondly, non-adherence with the code properly by the judges and the lawyers both add to same cause in a greater extent. Thirdly, the judicial system is not equipped with actual number of judges required so. Fourthly, Government can be termed for contributing maximum to the backlog.
While it can be understood that delay may occur in the civil cases but the same is not expected in the criminal proceedings. If we compare these two on the basis of its disposal then it is very much advent that criminal justice system is at its worst and this position leads to a situation where the common man had lost its complete trust on the efficacy of the criminal redressal system. 

While B.P.Singh J gave an approx statistics showing an average disposal and pendency of cases which would rather reveal the actual state of justice in India today:
On average 50 lakh crimes are registered every year, which are sought to be investigated by the police. The pendency of criminal cases in subordinate courts is 1.32 crore and the effective strength of judges is 12,177. Pending cases of the under trials in criminal cases are 1.44 crores. In an average 19 percent of the pending cases, disposed every year.

Delayed decisions, piled up files and indefinitely extending projects, never serve their purpose. They are the real roadblocks to development of any state or nation. Generally, delayed decisions take its maximum toll from the under privileged section as Poor section of our society, who were always treated as animals. They are often denied of their bare amenities of life.

Consider the condition of the poor victims of Bhopal gas Leak disaster, which took a toll of 15000 people. Twenty years had passed to that ghastly incident; still now victims were fighting for its compensation, which fails to measure up the damage caused to them. Consider the terrible situation occurred in August 1991 as massacre of Dalits at Tsundur in Andhra Pradesh. 13 years had passed to that incident, the families of the victims of Tsundur, still await justice for those who died. They say, they will not find any peace until the guilty are punished for their crime. Consider the condition of those girls who were brutally gang raped during the Godhra riots in front of their helpless family members. Consider the case of Jessica lal, where Delhi police yet to grab Manu Sharma, key accused, still able to safeguard himself from the clutches of the judicial administration. Still her family members await justice to be delivered. Consider the victims of Best Bakery case who still awaits justice to be dispensed in their favour but the climax starts with the key witness in the case turned hostile and the entire fate of the Bakery case is in turmoil. Today the victims of the all the above-enumerated cases know full well that the price of truth is extremely high.
Still they are waiting…

But for what? 
Whether all these amounts to justice?

IV. Conclusion
Social justice will be possible only if the entire concept of egalitarian politico-social order is followed, where no one is exploited, where every one is liberated and where every one is equal and free from Hunger and poverty. The proverb ‘Justice Delayed is Justice Denied’ is proved as it is denied to the poorest of the poor. Providing basic necessities to them will amount to Justice because the definition of justice varies from individuals to individuals on the basis of its economic conditions. According to B.P.Singh J the situation today is so grim that if a poor is able to reach to the stage of a high court, it should be considered as an achievement.

At this juncture the author is of the opinion that judiciary obviously owes an obligation to deliver quick and inexpensive justice irrespective of the complicated procedures but it cannot be hurried to be buried. Cases should be decided for imparting justice not for the sake of its disposal. Secondly, Arbitration procedure must be utilized as a better option for quick disposal of cases. Finally, to conclude with the words of Lord Hewet as it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.


Delayed justice: When judgement day arrives too late

It is high time the SC adopts a system to keep track of reserved judgements in the interest of the public

The heavy backlog of cases and delays in the Indian judicial system are once again the topic of much discussion, with everything from government callousness to over-litigiousness to judicial activism being blamed for the 35 million cases pending in the courts at all levels.
There are actually two separate but related problems being spoken about: the problem of delay and the problem of high pendency.
Various factors are responsible for the problems, and in order to address them, it is essential to study the data in depth to try and identify what are their causes.
A recent survey of litigants conducted by Daksh, a civil society organization that undertakes research and activities to promote accountability and better governance in India, showed that more than 60% of the respondents believed that the delay in their own cases was due to the judge not passing orders quickly enough.
While this relates to ongoing cases, it is a reflection of the perception among a large section of the population. It may not be entirely correct on the part of the litigant to attribute all the delay to the judge since the lawyer and the other party are also part of the proceedings.
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However, there is one stage where the responsibility for delay (if any) can be placed solely on the judge—delivery of judgement after arguments are complete. When a case is heard in depth and arguments are advanced by both parties, more often than not, the judge “reserves judgement”—to examine the arguments, do research and write the judgement before delivering it in an open court.
While the Code of Civil Procedure, 1908, applicable to civil courts, states that judgements should be delivered within 30 days of arguments being closed, no such time restriction is found in the context of Section 353 of the Code of Criminal Procedure, 1974, which prescribes the manner in which a judgement is to be delivered in a criminal case.
No provisions exist for the time to be taken in delivering judgements by the high courts and the Supreme Court.
The need for a time limit for delivering the judgement is not just to avoid delay, but also to prevent a miscarriage of justice.
A judge who takes too long to deliver judgements after hearing arguments may have forgotten some of the arguments or remembered them incorrectly to the detriment of the parties.

·         The slow moving wheels of Indian judiciary

For this reason, even though no procedural law prescribes so, the Supreme Court has held in Anil Rai vs State of Bihar case that parties can file an application in the high court seeking an early judgement if it’s not delivered within three months of it being reserved. If it’s not delivered more than six months after being reserved, parties have a right to have it re-heard before a different bench of the high court.
Does the Supreme Court itself adhere to this timeline?
I looked at the judgements delivered by the Supreme Court in 2015, of which 487 contained details of the date on which the order was reserved and the date on which the judgement was delivered.
While some of the remaining judgements were dictated in open court, the others had no details of when the judgement was reserved and so haven’t been included in this study. The time taken to deliver the judgement in these 487 cases is shown in the chart above.
While judgements were delivered within 30 days in 62% of the cases, in at least 85 cases (17%), the Supreme Court failed to adhere to the informal timeline it had laid down for the high courts. In 12% of the cases, the court took more than 120 days to deliver its judgement after having reserved it. The average time taken to deliver judgements in 2015 was 55 days and the median time was 21 days.
While the median time would suggest that the Supreme Court by and large delivers judgements within a month of arguments concluding, the number of cases where the delay is long and unexplained are not insubstantial. In nine cases, the judgement was delivered more than one year after being reserved, with the maximum time taken being 566 days.
Although all the cases in which it took more than one year to deliver the judgement were civil appeals, a broader picture suggests that there is no substantial difference between civil and criminal appeals when it came to the time taken to deliver the judgements.
The difference in the average length of time taken to deliver judgements in civil appeals cases as compared to criminal appeals cases can possibly be attributed to the fact that of the 20 judgements which took the most time to be delivered, only two are criminal appeals. In a criminal appeal, the maximum time taken to deliver a judgement after having reserved it was 325 days.
What the numbers show is that while a judgement is delivered within time in a bulk of the cases, there are a significant number that are slipping through the cracks and taking up much longer than they should.
In the recent past, judgements in two cases that involved highly important questions of law were delivered more than a year after the judgement was reserved.
When Subramanian Swamy sought a direction from the court to the then prime minister, Manmohan Singh, to grant sanction to prosecute telecom minister A. Raja for corruption in the 2G spectrum case, the court took 433 days to deliver its judgement after having reserved it.
In the Naz Foundation case concerning the validity of Section 377 of the Indian Penal Code, the judgement was delivered 624 days later, or more than 20 months after being reserved.
The relatively large number of cases where the judgement is delivered more than 90 days after being reserved by the bench suggest the absence of a system to keep track of how long a case has been reserved for judgement.
From the information available on the Supreme Court website, it is not possible to determine with any accuracy how many judgements have been reserved and for how long.
A recent Right to Information application seeking details of cases that have been reserved for judgement was denied by the Supreme Court.
Ironically enough, the Supreme Court has prescribed precisely such a monitoring mechanism for high courts in the Anil Rai vs State of Bihar case to ensure that too much time doesn’t elapse before a judgement is delivered.
Given that the Supreme Court itself has slipped in ensuring the timely delivery of judgement to litigants, it is high time perhaps that the apex court adopts a system to keep track of reserved judgements in the interests of transparency and accountability to the litigating public.


In search of lost time

By Uzma Falak



Indian System of Bail - Anti Poor
-       Urvashi Saikumar 

Justice as we know was a right fundamental to all, but it's fallacy is evident, as money now results in its fall
Objectively analyzed the criminal jurisprudence adopted by India is a mere reflection of the Victorian legacy left behind by the Britishers. The passage of time has only seen a few amendments once in a while to satisfy pressure groups and vote banks. Probably no thought has been given whether these legislations, which have existed for almost seven decades, have taken into account the plight and the socio-economic conditions of 70% of the population of this country which lives in utter poverty. India being a poverty stricken developing country needed anything but a blind copy of the legislations prevalent indeveloped
western countries.

The concept of bail, which is an integral part of the criminal jurisprudence, also suffers from the above stated drawbacks. Bail is broadly used to refer to the release of a person charged with an offence, on his providing a security that will ensure his presence before the court or any other authority whenever required.

Meaning of Bail

Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. The law lexicon[1] defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation.

Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide.

What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court." [2]

A reading of the above definition make it evident that money need not be a concomitant of the bail system. As already discussed above, the majority of the population in rural India, lives in the thrall of poverty and destitution, and don't even have the money to earn one square meal a day. Yet, they are still expected to serve a surety even though they have been charged with a bailable offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened criminals and effectively being treated as a convict.

History of Bail
The concept of bail can traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England.

Evolution in England
There existed a concept of circuit courts during the medieval times in Britain. Judges used to periodically go ?on circuit? to various parts of the country to decide cases. The terms Sessions and Quarter Sessions are thus derived from the intervals at which such courts were held. In the meanwhile, the under trials were kept in prison awaiting their trials. These prisoners were kept in very unhygienic and inhumane conditions this was caused the spread of a lot of diseases. This agitated the undertrials, who were hence separated from the accused. This led to their release on their securing a surety, so that it was ensured that the person would appear on the appointed date for hearing. If he did not appear then his surety was held liable and was made to face trial. Slowly the concept of monetary bail came into existence and the said undertrials was asked to give a monetary bond, which was liable to get forfeited on non-appearance.

In The Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be taken or imprisoned without being judged by his peers or the law of the land.

Then in 1275, the Statute of Westminster was enacted which divided crimes as bailable and non bailable. It also determined which judges and officials could make decisions on bail.

In 1677, the Habeas Corpus Act was added to the Right Of Petition of 1628, which gave the right to the defendant the right to be told of the charges against him, the right to know if the charges against him were bailable or not. The Habeas Corpus Act, 1679 states, "A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter offenses for which by law the Prisoner is not bailable."

In 1689 came The English Bill Of Rights, which provided safeguards against judges setting bail too high. It stated that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required."

Current Practice
In 1976 the Bail Act 1976 came into force. It sets out the current and the basic legal position of bail prevailing in England. It lays out that there is a general right to bail, except as provided for under the First Schedule of the Act. While there are different grounds for refusing the right to bail depending on the type of offence, for all imprison able offences the two basic grounds are as set out by the O'Callaghan decision. But there is also the additional ground that if the court is satisfied that there are "substantial grounds for believing" that the defendant if released on bail will commit an offence while on bail, bail may be refuse.
Under section 5(3) of the Bail Act 1976 the court which withholds bail is required to give reasons, so that the defendant can consider making an application.[3] In practice, however, the reasons given by English courts on a variety of standard forms are frequently short and not explicitly based upon particular facts and factors. Stone's Justices' Manual suggests that magistrates announce any decision to refuse bail merely by relating the grounds and statutory reasons in short form.[4]

English administrative law also requires that, where there is an existing obligation to give reasons for a decision, the reasons given be clear and adequate, and deal with the substantial issues in the case.[5]

The English courts use tick boxes for recording the grounds and the reasons for not granting bail. There is a use of a standard pattern that which lists out the various reasons for not granting the bail. These forms vary in their precise configuration, but in substance they are all the same as all of them set out the grounds for refusing bail in one column, and a number of possible reasons for the findings those grounds established in another column. The decision is recorded by ticking the relevant box in each column. But the decisions recorded on standard forms might be at risk of being characterised as "abstract" or "stereotyped", and therefore inadequate. The quality of the reasons given directly reflects the quality of the decision-making process.

Evolution in America
According to the San Francisco News and the SF Chronicle, the first modern Bail Bonds business in the United States, the system by which a person pays a percentage to a professional bondsman who puts up the cash as a guarantee that the person will appear in court, was established by Tom and Peter P. McDonough in San Francisco in 1898. Infact, this was the same year that the Bill of Rights was introduced in England, and the Congress passed the Judiciary Act. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge. In 1791 The Bill Of Rights was incorporated into Constitution of the United States, through the 5th, 6th and 8th Amendments, guaranteeing citizens the right to due process of law, a fair and speedy trial and protection against excessive bail. The Eighth Amendment to the Constitution of the United States provides that "excessive bail shall not be required," but it does not provide any absolute right to bail.

Current Practice
Under current law, a defendant has the right to bail unless there is sufficient reason not to grant it. The main reasons for refusing bail according to the Bail Act 1976 are that there are substantial grounds for believing that the defendant (1) will abscond; (2) will commit further offences whilst on bail; or (3) will interfere with witnesses. Conditions may be applied to the grant of bail, such as living at a particular address or, rarely, paying an amount into court or having someone act as surety. Release on bail is sometimes referred to as police bail, where the release was by the police rather than by a court.

The alternative to being granted bail is being remanded into custody (also called being held on remand).

In America, every accused person is entitled to a hearing at which evidence relevant to his individual case is considered to determine the amount of bail necessary. No precise rule can be laid down that will determine the amount of bail required in any particular instance. Bail is to be fixed according to the circumstances of each case. The matter is generally one for the sound discretion of the trial court. Although the determination of the trial court is subject to the review in the appellate courts for abuse of discretion, ordinarily the appellate courts will not interfere if the amount set by the trial court is reasonable and not excessive.

The amount of a bond should, of course, be sufficient to assure the attendance of the defendant upon the court when it is required. The bond should be fixed in such amount that will exact vigilance on the part of the sureties to see that the defendant appears in court when called.[6]

Both the Federal Constitution and state constitutions contain provisions against excessive bail. Bail set at an amount higher than reasonably calculated to insure that the accused will appear to stand trial and submit to sentence if convicted is excessive, and falls within the proscription of the Federal Constitution if set by a federal court, or of the particular state's constitution if set by a state court. But no hard-and-fast rules for determining what is reasonable bail and what is excessive bail have been laid down. That the bail is reasonable which, in view of the nature of the offense, the penalty attached to the offense, and the probability of guilt of defendant, seems no more than sufficient to secure attendance of the defendant.[7]

The amount of bail, in and of itself, is not finally determinative of excessiveness. What would be reasonable bail in the case of one defendant may be excessive in the case of another.[8] As indicated below, such matters as the past criminal record of the defendant, and the nature of the crime committed and the punishment therefore, are material factors in determining whether bail is excessive.

Where two or more cased are pending against a defendant, the fact that bail in one case, considered by itself, is reasonable, does not prevent the collective amount required in the several cases from being excessive.

The gist of the problem confronting a court in setting the amount of bail is to place the amount high enough to reasonably assure the presence of defendant when it is required, and at the same time to avoid a figure higher than that reasonably calculated to fulfill this purpose, and therefore excessive. The general rule in federal courts is to try to strike a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction, under the circumstances surrounding each particular accused.[9] In other words, in determining the amount of bail, the good of the public as well as the rights of the accused should be kept in mind.

The Bail Reform Act of 1966 provides for the release of defendant on his personal recognizance or upon execution of an unsecured appearance bond in an amount specified by the judicial officer before whom he appears, unless the officer determines, in the exercise of his discretion, that such release will not reasonably assure the appearance of defendant as required, in which event specified conditions of release which will reasonably assure defendant's appearance for trial may be imposed. The Bail Reforms Act, 1966 was initiated by President Johnson who felt that under the Federal Rules, bail in an amount higher than reasonably calculated to be necessary to assure the presence of the accused is excessive.

It has been stated that the factors to be taken into consideration in determining the amount of bail are:
(1) ability of the accused to give bail,
(2) nature of offense,
(3) penalty for the offense charged,
(4) character and reputation of the accused,
(5) health of the accused,
(6) character and strength of the evidence,
(7) probability of the accused appearing at trial,
(8) forfeiture of other bonds, and
(9) whether the accused was a fugitive from justice when arrested. [10]

That the accused is under bond for appearance at trial in other cases should also be considered.

A major factor in determining the amount of bail in a current matter is the character and former criminal record of the defendant. It has been held, however, that the criminal activities and tendencies of a person applying for bail on a charge of vagrancy do not justify the fixing of bail at an excessive amount for the purpose of keeping him in jail.

In determining the amount of bail, voluntary surrender may be considered as an indication that the defendant has no intention of absconding from justice. On the other hand, it is also proper, in setting a higher bail figure, to take into consideration the fact that at the time of arrest the accused was a fugitive from justice, or the fact that the defendant has previously absconded while under indictment.

Even where bail is a matter of right, the fact that a person has previously forfeited bail is a factor to be considered in determining the amount of bail; in such a case bail may be set in such amount as will reasonably assure the presence of the defendant at court, although bail may not be refused altogether.[11] In setting the bail, the court may also consider the behavior or misbehavior of the defendant during parole from prison on a previous criminal conviction.

The probability of the establishment of guilt at the trial, or the existence of doubt as to the guilt of the accused, is a proper consideration in determining the amount of bail. Hence a court, in determining the amount of bail, may consider the character and strength of the evidence by which the crime charged is supported.

A court should give some regard to the prisoner's pecuniary circumstances, since what is reasonable bail to a man of wealth may be equivalent to a denial of the right to bail if exacted of a poor man charged with a like offense.[12] An accused cannot be denied release from detention because of indigence, but is constitutionally entitled to be released on his personal recognizance where other relevant factors make it reasonable to believe that he will comply with the orders of the court.[13]

However, bail is not rendered excessive by the mere inability of the accused to procure bail in the amount required. In other words, the extent of the pecuniary ability of the accused to furnish bail in not controlling, if it were, the fixing of any amount, no matter how small, where the accused had no means of his own and no friends who were able or willing to become sureties for him, would constitute a case of excessive bail, and would entitle him to got at large on his own recognizance. It is the incarceration of those individuals who cannot meet established money bail requirements, without meaningful consideration of other possible alternatives, which infringes on both due process and equal protection requirements.

The current American position is stated as follows in a standard treatise "There is power in the court to release the defendant without bail or on his own recognition."

The Legal Position in India

The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: " Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C.. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society. The unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their callous attitude towards the poor.
According to the 78th report of the Law Commission as on April 1, 1977, of a total prison population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials.

One of the reasons for this is, as already mentioned above, is the large scale poverty amongst the majority of the population in our country. Fragmentation of land holdings is a common phenomenon in rural India. A family consisting of around 8 ? 10 members depends on a small piece of land for their subsistence, which also is a reason for disguised unemployment. When one of the members of such a family gets charged with an offence, the only way they can secure his release and paying the bail is by either selling off the land or giving it on mortgage. This would further push them more into the jaws of poverty. This is the precise reason why most of the under trials languish in jail instead of being out on bail.

Judicial Trend
An overview of the following cases highlight the adverse condition of the poor with regard to the unjust bail system in India. In 
State of Rajasthan v Balchand[14], the accused was convicted by the trial court. When he went on appeal the High Court, it acquitted him. The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose.

In Moti Ram and Ors. v State of M.P [15], the accused who was a poor mason was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. MR went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the judges should be more inclined towards bail and not jail.
In 
Maneka Gandhi v Union of India [16], Justice Krishna Iyer once again spoke against the unfair system of bail that was prevailing in India. No definition of bail has been given in the code, although the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when looked at from the economic criteria of a person this discrimination arises even if the amount of bail fixed by the magistrates isn't high for some, but a large majority of those who are brought before the courts in criminal cases are so poor that they would 
find it difficult to furnish bail even if it's a small amount.

Further in Hussainara Khatoon and others v. Home Sec,State of Bihar [17] , the Court laid down the ratio that when the man is in jail for a period longer than the sentence he is liable for then he should be released.

Conclusion
A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal justice system. Even though the courts in some cases have tried to intervene and also have laid down certain guidelines to be followed but unfortunately nothing has been done about it. There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. While granting bail the court must also look at the socio-economic plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court. The court can take into account the following facts concerning the accused before granting him bail:
(1) The nature of the offence committed by the accused.
(2) The length of his residence in the community.
(3) His employment status history and his financial condition.
(4) His family ties and relationships.
(5) His reputation character and monetary conditions.
(6) His prior criminal records, including any record or prior release on recognizance or on bail.
(7) Identity of responsible members of the community who would vouch for his reliability.
(8) The nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance.
(9) Any other factors indicating the ties of the accused to the community or barring on the risk of willful failure to appear.

The Way Forward
It is thought that from the various schemes the government operates for rural employment, loans to farmers etc, a portion of the funds which it transfers to the panchayat for developmental work of the same should be set aside and kept to meet the bail amount for undertrials belonging to the particular panchayat / block. The utilization of this fund would be in the hands of the elected leaders of the society with the representative of district collector / district magistrate being a part of the system. This would, go a long way in securing freedom for scores of undertrials who would then be able to contribute to society thereby 
playing an important role and forming part of the national mainstream. Such a scenario will have the effect of reducing the burden of over-crowding in jail.
The setting up of separate jails, or at any rate isolating undertrials from convicts, would prevent hardened criminals from exercising their deleterious influence over undertrials. Such segregation would also change the attitude of jail authorities and society at large towards under trials.

The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail. Elementary education facilities must be granted to those under trials who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should be available to the masses including those who do not have the financial capacity to afford it.



15 judicial officers compulsorily retired by Allahabad HC in UP

In a major action, 15 judicial officers in Uttar Pradesh have been punished with compulsory retirement by theAllahabad High Court for “doubtful integrity”, “negligence” and “poor performance”.
The decision was taken at a “Full Court” meeting presided by Chief Justice of the High Court D Y Chandrachud held in Lucknow on April 14, S K Singh, the Registrar General of the High Court, said.
12 Additional District Judges (ADJs) and three Additional Chief Judicial Magistrates (ACJMs) were “divested of their charges and stopped from functioning on their respective posts” with immediate effect while a communique to this effect was sent to the state government, he said.
A 10 per cent curtailment in the pension of a retired officer Ashok Kumar Saxena, against whom there were serious complaints, has also been announced, the registrar said.
The ADJs – who were posted in different districts of the state and have been given compulsory retirement are – Shaileshwar Nath Singh, Bans Raj, Ram Murti Yadav, Dhruv Raj, Jagdish, Naresh, V P Kandpal, A K Ganesh, Arvind Kumar, Avinash Chandra, A K Dwivedi and M M Khan while the three ACJMs are Kishore Kumar, S S Singh and Shyam Shankar.



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