Tag: supreme court of india

Former Indian Supreme Court Judge Urges Pakistan Supreme Court to Uphold Constitutional Rights in Open Letter

To CJP Qazi Faez Isa and his Companion Judges of the Pakistan Supreme Court
Islamabad
Dear Brothers/Sisters
I regret I have to write this strong letter to you, but I must.
You have all taken an oath to uphold the Pakistan Constitution, which has a right to life and liberty ( vide Article 9 ).
So it is your solemn duty to order release of Imran Khan ( also ordering that he not be arrested on his release on other charges ), as well as the 10,000 people arrested on concocted charges after the events of 9th May.
If you cannot do that please pack up, resign, and go home, as you are disloyal to your oath, and are consequently unfit to be judges.
It may be mentioned that even when an FIR is filed against a person, the police is not bound to arrest him/her. This is clear from section 157 of the Pakistan Criminal Procedure Code which states :
” Procedure where cognizable offence suspected: (1) If from information received or otherwise, an officer incharge of a police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall proceed in person to the spot, to investigate the facts and circumstance of the case, and, if necessary, to take measures for the discovery and arrest of the offender ”.

The use of the word ” if necessary ” at the end of this provision implies that the police should not arrest someone unless it is necessary. The police can question the accused at his home or place of work, without arresting him/her. But it is evident that the police arrested these 10,000 persons who are in jail without even considering whether it was necessary to arrest them.
In Joginder Kumar vs. State of U.P. (AIR 1994 S.C. 1349), the Indian Supreme Court observed:
“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest, apart from his power to do so.
Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer, in the interest of protection of the constitutional rights of a citizen, and perhaps in his own interest, to ensure that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”
The last sentence is important, though usually ignored by policemen. In the same judgment, the Indian Supreme Court has observed that the power to arrest is a major source of corruption for the police, and that according to the Third Report of the National Police Commission, about 60 per cent of arrests in India are either unnecessary or unjustified. The same must be the position in Pakistan
To make an illegal arrest is a crime (wrongful restraint and wrongful confinement) punishable under sections 341 and 342 I.P.C.
A wrongful arrest is violative of Article 9 of the Pakistan Constitution, which guarantees life and liberty to all persons. In Deepak Bajaj vs. State of Maharashtra ( 2008 ) the Indian Supreme Court observed:
“The purpose of Article 21 of the Indian Constitution ( which is akin to Article 9 in the Pakistan Constitution ) is to safeguard the liberty of the citizen, which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers had lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution “.
In Ghani vs. Jones (1970)1 Q.B. 693 (709) Lord Denning observed:
“A man’s liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground”
The above observation has been quoted with approval by the Indian Supreme Court in Govt. of Andhra Pradesh vs. P. Laxmi Devi J.T. 2008 (2) SC 639 (vide para 90).
Apart from the above, in State of Rajasthan vs Balchand, 1977 the Indian Supreme Court held that bail, not jail, is the normal rule, unless the accused is charged with a heinous offence or is likely to abscond or tamper with the evidence
https://main.sci.gov.in/jonew/judis/5235.pdf
This rule has been consistently followed thereafter e.g. in Dataram vs State of UP, 2018
https://indiankanoon.org/doc/122663958/
In Satender Kumar Antil vs CBI the Indian Supreme Court observed :
” Any imprisonment before conviction has a substantial punitive content ”. This is because criminal trials in India ( and in Pakistan ) usually take a long time to conclude, often years, and if the accused is ultimately found innocent who will restore him/her the time spent in jail ?
In England, when a case is filed in the High Court relating to individual liberty ( habeas corpus or bail ), the Judge sets aside the files of all other cases and takes up that case on priority basis.
So it is your solemn duty to take up the cases of Imran Khan and the other 10,000 persons in prison, and order their release, failing which you will be branded as the modern Judge Jeffreys and traitors to your own institution
Justice Markandey Katju
Former Judge,
Indian Supreme Court
26.9.2023
91-9821181334

September 26, 2023
Article 370 is permanent, it cannot be abrogated
September 19, 2023 | New Delhi
In a pivotal 16-day hearing, India’s Supreme Court examined the intricate facets of Article 370, which governs the relationship between the erstwhile state of Jammu and Kashmir and the rest of the country. Here’s a comprehensive overview of the arguments presented by the petitioners, emphasizing the enduring significance of Article 370.
In a riveting legal showdown, the fate of Article 370, a provision integral to Jammu and Kashmir’s unique constitutional status, hangs in the balance. A battery of legal luminaries, including names like Kapil Sibal, Gopal Subramanium, and Rajeev Dhavan, have passionately advocated for the petitioners, underscoring that the case holds far-reaching implications for the powers of state assemblies, Parliament, governors, and even the President.
The Supreme Court bench, comprising the Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, heard arguments over an extensive 16-day period. In this two-part series, we delve into the critical arguments presented by the petitioners, emphasizing that their intention is not to question India’s sovereignty, but to affirm that Jammu and Kashmir remains an integral part of the nation.
Key Points:
- Unique Constitutional Framework: The framers of India’s Constitution envisioned a distinct association with Jammu and Kashmir, rooted in historical and geopolitical context.
- Instrument of Accession (IoA): The circumstances leading to the IoA signed by Maharaja Hari Singh highlighted J&K’s distinctive accession process compared to other princely states.
- Preservation of Autonomy: Article 370 safeguarded J&K’s autonomy, as there was no “merger agreement” akin to other states.
- Territorial Integrity Pledge: J&K was assured territorial integrity, setting it apart from other states.
- Constitutional Applicability: Over time, Indian laws were extended to J&K, leaving little to integrate, questioning the rationale behind Article 370’s abrogation.
- Founding Intentions: J&K’s Constitution was crafted by its Constituent Assembly, aligning with the broader ideals of India’s Constitution.
- Element of Permanence: The absence of changes recommended by the Constituent Assembly over six years implied a lasting intent for Article 370.
- Constituent Assembly’s Role: Article 370 required concurrence from the Constituent Assembly, which ceased to exist, lending it a sense of permanence.
- Synergy of Constitutions: India and J&K’s Constitutions coexisted, with Article 370 reflecting an asymmetric federal relationship.
- Abrogation Process Scrutinized: The abrogation process was challenged for bypassing the collaborative approach mandated by Article 370.
- Article 356 Intricacies: The executive act of invoking Article 356 was critiqued for sidestepping democratic principles, impacting federalism.
- State to Union Territory Transformation: The transformation of J&K into Union Territories raised constitutional concerns, disrupting representative democracy.
- Constitutional Democracy Upheld: It was argued that the Constitution doesn’t permit converting a state into two Union Territories without due process.
- Historical Context of Borders: J&K’s geographical connection to India was established through a historical decision by Lord Cyril Radcliffe.
- Special Dispensation for J&K: A unique arrangement was created for J&K, addressing both domestic and international considerations.
- Limited Power: Parliament’s authority under Article 370 was seen as circumscribed, contradicting claims of absolute power.
- Presidential Action and Council of Ministers: The President’s actions were viewed as contingent on the advice of the council of ministers, aligning with democratic principles.
- Parchment of Pride: J&K’s Constitution was held as a cherished document, symbolizing the state’s integral role in the Indian Union.
In a landmark hearing, India’s Supreme Court examined the constitutional nuances of Article 370, shedding light on its enduring relevance in the context of Jammu and Kashmir. The arguments presented emphasized the unique historical and geopolitical backdrop that shaped this constitutional provision. The hearing will play a pivotal role in defining the powers of various state entities and reaffirming the values enshrined in India’s Constitution.
For further details, refer to the full report on the Supreme Court’s hearing on Article 370.
Summary:
- The Supreme Court examines the enduring significance of Article 370 in a 16-day hearing.
- Arguments highlight the distinctive historical and geopolitical context of J&K’s association with India.
- The absence of a “merger agreement” and the IoA’s unique nature underscore J&K’s autonomy.
- The Constitution’s applicability to J&K raises questions about Article 370’s abrogation rationale.
- The hearing prompts a reevaluation of constitutional dynamics between J&K and the rest of India.
Disclaimer: The views and arguments presented in this article are based on the perspectives put forth by the petitioners in the ongoing legal battle over Article 370. The final judgment may provide further clarity on this complex constitutional issue.
September 19, 2023
Validity of Imran Khan’s trial in jail

After former Prime Minister of Pakistan Imran Khan was ordered to be released on bail in the toshakhana case by the Islamabad High Court he was rearrested in the cypher case, and will be tried in Attock jail where he has been incarcerated.
The question is whether such a trial away from the public gaze is valid ? In my opinion it is not.
The Greek philosopher Plato in his book ‘Laws’ said that justice is not a private affair, and so citizens should be allowed to attend court proceedings. Similarly, the German philosopher Hegel said that judicial proceedings must be public, since the aim of the court is to do justice, which is universal.
A Constitutional Bench of Indian Supreme Court in Naresh Shridhar Mirajkar & Ors Vs State of Maharashtra (1966 3 SCR 744) laid down the importance of open court proceedings.
The Court held :
“It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.
Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, Courts must generally hear causes in open and must permit public admission to the courtroom.”
Similarly, in Chief Election Commissioner vs MR Vijaykumar ( 2021 ) the Indian Supreme Court observed :
” Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable Constitutional freedoms.

The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court, the response of opposing counsel, and issues raised by the court, are matters on which citizens have a legitimate right to be informed. An open court proceeding ensures that the judicial process is subject to public scrutiny, which is crucial to maintaining transparency and accountability. In the functioning of democratic institutions this is crucial to establish the public faith in them ”.
In R. vs Socialist Workers Printers and Publishers, exparte Attorney General ( 1974 ) Lord Widgery observed :
” The great virtue of having the public in court courts is that discipline which the presence of the public imposes upon the court itself. When the court is full of members of the public it is bound to have the effect that everybody is careful about what they do, and there is a disciplinary effect on the court which would be totally lacking if there were no critical members of the public or press present. When one has an order for trial in camera, all the public and press are evicted at one fell swoop, and the entire supervision by the public is gone. Public scrutiny fosters confidence in the process. Public discussion and criticism works as a restraint on the conduct of a judge ”.
Similarly, in Naresh Shridhar Mirajkar vs State of Maharashtra ( 1966 ) CJI Hidayatullah observed :
” Hearing in open court of causes is of the utmost importance for maintaining confidence of the public in the impartial administration of justice: it operates as a wholesome check upon judicial behaviour as well as upon the conduct of the contending parties and their witnesses. An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights ”.
The virtues of openness were discussed by the Supreme Court of Canada in A.G. Nova Scotia v. MacIntyre which quoted eighteenth-century philosopher Jeremy Bentham:” In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial ”.
According to the Supreme Court of Canada in Vancouver Sun (Re), the open court principle enhances the public’s confidence in the justice system:” Public access to the courts guarantees the integrity of judicial processes by demonstrating that justice is administered in a non-arbitrary manner, according to the rule of law. Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts ”.
The open court principle has long been recognized as a cornerstone of the common law in the UK. In its 1913 decision in Scott v. Scott, the House of Lords noted the right of public access to the courts is “one of principle, turning not on convenience, but on necessity”. Viscount Haldane L.C., noted that “Justice is not a cloistered virtue”.
In the 1936 decision of Ambard v. Attorney-General for Trinidad and Tobago, Lord Atkin noted “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity.”^[
Thus, all over the world it is accepted that court proceedings should ordinarily be open to the public gaze, except in some cases like sexual offences, child molestation and matrimonial proceedings. Unlike hearings by bureaucrats of public grievances, which can be in their offices behind closed doors, ordinarily all court proceedings must therefore be open to public view.
Section 352 of the Code of Criminal Procedure, Pakistan states :
” Courts to be open: The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court ”.
Thus this provision accepts the general principle that criminal trials should ordinarily be in open court, to which the public should have access.
The exceptions may be, as mentioned above, in cases of sexual offences, child molestation, matrimonial cases etc but Imran Khan’s cypher case does not fall in these exceptional categories.
An exception cannot override the general rule. If it was felt that a huge crowd will come if Imran Khan is tried in open court causing law and order problems, security arrangements could surely have been made. Also restriction on the number of people who are granted entry into the courtroom could have been placed, as in the Eichmann trial of 1961 in Israel in which too the people wanting to attend was far in excess of the seating capacity in the courtroom, and hence lots were drawn, and only those who got tickets were granted entry.
It is obvious that the real reason for not holding the trial in open court was the fear in the minds of the Pakistan Establishment that public viewing of the brave man whose spirit could not be crushed by his incarceration would further increase his popularity. However, to my mind this cannot be said to be a valid reason for not holding the trial in open court

August 30, 2023
A Judge is not a Knight Errant

Justice Benjamin Cardozo, the celebrated Judge of the US Supreme Court, wrote in his book ‘The Nature of the Judicial Process’ :

” A Judge is not a Knight Errant roaming at will in search of his own ideal of beauty and goodness ”.
I submit with respect that the recent release of a 30 page handbook by the Chief Justice of India for guiding judges to avoid using gender stereotypes is violative of the above dictum of Justice Cardozo.
Supreme Court launches handbook to combat gender stereotypes within legal community
SC launches handbook on gender unjust terms; street sexual harassment to replace eve-teasing, sex worker in place of prostitute

If a 30 page handbook is needed for combating gender stereotypes, why not issue a 30 page handbook for combating stereotypes of politicians ? Can they be called crooks in a court order ( which many people think most of them are ) ?

Why not a 30 page handbook for guiding Supreme Court judges as to what words they should use for High Court judges ( e.g. should the Supreme Court in its judgment call the High Court as ‘the Court below’ ? ). And what words should the High Court judges use for subordinate judiciary judges ?

What about 30 page handbooks for civil servants, teachers, lawyers, engineers, farmers, workers, students, doctors etc ?

I submit that judges learn judicial etiquette and most things not from handbooks but by observing court conventions while practising as a lawyer, and as a junior judge from one’s seniors.

It is a long standing, well established, convention that judges should only speak through their judgments, and that is what I was taught by my seniors in the judiciary e.g. former CJI MN Venkatachaliah and former CJI J.S. Verma. Sermons and homilies delivered in 30 page handbooks are not part of a judgment, and are therefore best avoided.

August 18, 2023
Students’ Future at Stake: Kerala Government Under Fire for Failing to Address Class 10th Admissions Crisis

The Chief Minister of Kerala, Mr. Vijayan, and his government are facing severe criticism following their alleged inaction in addressing the critical issue of limited admissions for students who pass Class 10 in the Malappuram district.
Concerns have been raised by former Supreme Court Judge, Justice Katju, who recently attended a conference in the region and discovered the distressing situation faced by talented students. Despite repeated appeals and calls for action, the government’s alleged lack of response has sparked outrage, as the aspirations and future prospects of these young individuals hang in the balance.

According to Justice Katju’s email, numerous students in Malappuram who have achieved exceptional results, securing over 90% marks in their Class 10 exams, are being denied admission to Class 11 in subjects such as computers, biology, maths, physics, and chemistry. These students harbor dreams of pursuing careers in engineering, medicine, scientific research, IT, and other fields. However, the limited availability of seats in these subjects is severely hampering their chances of pursuing their desired career paths, leaving their aspirations shattered and their futures uncertain.
Justice Katju expresses deep concern that despite appeals made to the Chief Minister, his government, and the MLAs from his party and its allies, the issue has allegedly been met with indifference and apathy. The lack of action in addressing this problem is deemed a grave offense, as it directly impacts the lives and ambitions of these talented youngsters. Justice Katju does not mince words, holding the Chief Minister and his government directly responsible for this “crime” against the students of Malappuram.
The former Supreme Court Judge goes on to highlight that he personally discussed the matter with Mr. Shamsheer, the Speaker of the Kerala Legislative Assembly and an MLA of the Indian Union Muslim League (IUML), during the conference. This indicates that the issue has gained attention and concern among various political figures within the state.
In his email, Justice Katju firmly calls upon Chief Minister Vijayan to urgently address this admissions crisis or face the demand for his resignation. He warns of dire consequences for the government if a satisfactory response is not received promptly, criticizing what he perceives as incompetence on their part.
Conclusion:

The failure of the Kerala government to tackle the Class 10 admissions crisis in Malappuram has sparked outrage, with Justice Katju and concerned stakeholders highlighting the dire consequences faced by talented students. As their dreams hang in the balance, the government’s alleged inaction has led to public condemnation and demands for immediate intervention. The future of these aspiring engineers, doctors, scientists, and IT experts remains uncertain until a resolution is reached. It remains to be seen whether Chief Minister Vijayan and his government will take swift action to address the issue or face further backlash from the public and concerned parties.

July 13, 2023
Holding National and Provincial Assemblies elections together in Pakistan By Justice Katju

In the present crisis in Pakistan, a demand has been raised, mainly by the ruling PDM leaders and its members, that elections to the National and Provincial Assemblies be held together. The Pakistan Senate has also passed a resolution to this effect. Is this demand valid ? I submit it is not.
There is no provision in Pakistan’s Constitution that the National and Provincial Assembly elections must be held together.Apart from that, there is another problem in holding both elections together.
Article 52 of Pakistan’s Constitution states :” The National Assembly shall, unless sooner dissolved, continue for a term of five years from the day of its first meeting and shall stand dissolved at the expiration of its term ”.
Similarly Article 107 states :
” The Provincial Assembly shall, unless sooner dissolved, continue for a term of five years from the day of its first meeting and shall stand dissolved at the expiration of its term ”.Now suppose a Provincial Assembly, for some reason, is dissolved prematurely one year after its first meeting, but the National Assembly is not dissolved, and has yet to complete another 4 years. Will there be no Provincial Assembly for 4 years ?
Article 224(2) of Pakistan’s Constitution states :
” When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls ”.
This provision is very clear, and it makes it obvious that both National and Provincial Assembly elections cannot be held together, where either the National or the Provincial Assembly was dissolved prematurely.
The Punjab Provincial Assembly was dissolved prematurely on 14th January 2023, and hence in view of Article 224(2) elections to it had to be held by 14th April, and they could not be validly postponed to the time when the National Assembly completes its term in August, and elections are to be held for it in October.

I submit that for meeting the demand for holding elections simultaneously, the Constitution has to be amended, and until that is done, the demand is not tenable.

April 21, 2023
SC Dismisses NEET PG 2023 Postponement Plea

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SRINAGAR: National Eligibility cum Entrance Test, (NEET) PG, 2023 is not postponed as Supreme Court of India dismissed the postponement plea on Monday.
The matter related to NEET PG 2023 postponement was heard by a bench comprising of Justices S Ravindra Bhat and Dipankar Datta. Upon hearing the matter, the apex court has decided to not postpone the NEET PG 2023 Exam.
The plea regarding postponement of NEET PG 2023 was heard by a bench comprising of Justices S Ravindra Bhat and Dipankar Datta on Friday. Upon hearing the matter, the apex court has decided to not postpone the NEET PG 2023 Exam.
The petitioners had sought for the postponement of the entrance exam by two to three months. They wanted the exam to postponed so to ensure the gap between NEET PG exam and councelling date is reduced.
A bench of Justices Dipankar Datta and S R Bhat was informed by Additional Solicitor General (ASG) Aishwarya Bhati, representing the National Board of Examinations (NBE), that NEET PG admit cards have been released on Monday as per the original schedule and the counselling may begin on July 15, 2023.
On Friday, the NBE told the Supreme Court that nearly 2.09 lakh students have registered for the NEET PG 2023 exam and no alternate date for conducting the medical examination may be at hand in the near future if the entrance exam is delayed.

“There is no date available in the near future with our technology partner to conduct the NEET PG exam,” she told the SC bench.

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#Dismisses #NEET #Postponement #Plea
( With inputs from : kashmirlife.net )

February 27, 2023