To call Ram a criminal lawyer is to describe his left half not his right half. I remember, and I’m saying so in a lighter way, Ram’s capacity to make complex problems simple was I think one of the great attributes of his skill of advocacy. I remember when we were doing the hawala case and Ram was explaining the law of hearsay to the judges, Arun was sitting next to him and Ram says if somebody tells me that he saw Arun in the Lodhi Garden wearing pink glasses, that is not evidence of the fact that Arun was wearing pink glasses. It is only evidence of the fact that person is telling me that Arun was wearing pink glasses. It might be evidence of the fact that Arun has finally lost his marbles. This was how Ram explained and I think he explained it so beautifully as to what the law of hearsay was.
And Ram’s skills as a civil lawyer. I remember we had the Chhabria case going on, in fact Ram was to lead me, he got busy in some other matter in court one and this was going on in court two. Mr Venugopal was appearing for Chhabria, I was appearing for Kishor and they had come against an appeal court judgement dismissing an appeal from order. And Venu was arguing that the appeal court had not given any reason, the bench was Justice Ahmadi and Justice Mohan. I still remember and the point was getting some traction from the bench because the division bench had decided it in one sentence. We came out for lunch walking down the corridor, Ram asked me beta kya ho raha hai, I told him this is the point being argued he says arre baba go and see rule so and so of the Bombay original side and he walked off. We checked the rule, there was a rule, Falo would remember, which said if you are dismissing an appeal from order you don’t have to give reasons. And we showed that rule and that was the end of that point. This was Ram’s knowledge of the civil procedure court.
And I remember his cross examining a witness in that famous bank guarantee trial on the civil side where we had the late Atul Sita Bahadur and on the other side. And I think about 11 o’clock Atul made some comment which angered Ram and he said at 12.15 your client will be in tears. He was cross examining some chap and at exactly 12.15 the witness was in tears because Ram had nailed him on something and completely boxed him in. He is a person we will all miss for the rest of your lives. Those of us who have had the privilege of knowing him, working with him, really know what a complete human being he was.
Coming to the topic of the day and speaking from where Kapil left off, what is the state of disrepair of rule of law in India and how has the media generously contributed to the state of disrepair. Since it is a webinar in the memory of Ram Jethmalani, I plan to be a bit blunt. Kapil has cataloged a number of cases where the media has done wonderful work in bringing forth cases which the administration would have liked to see buried deep. And that to my mind is where the role of the media begins and ends. In cases where the system fails because of political interference or just policy apathy because the victim is too poor or the victim is from a strata of society which doesn’t command that kind of traction. In situations like that when the media takes up a cause, they render a great service to the rule of law. In most of these cases it was either that the victim was from a very humble background or from an area or class of society which did not command eyeballs, did not command attention the media brings it forth and kickstarted the rule of law. The problem is when the media becomes a parallel system of rule of noise where the rule of noise starts displacing the rule of law.
Indian criminal justice system in high profile cases, and I don’t plan to mince my words today, Indian criminal justice system in high profile cases has become a circus. Our agencies in a large number of cases are unable to probe, so trial by court of law, trial in accordance with the law of evidence and Kapil rightly flagged that I don’t think the media believes in such a thing called the law of evidence. Trial by a system, governed by the rule of law by a judge authorised by the state has been replaced by trial by embarrassment. So what do you do? You go, you run and you arrest somebody and selective leaks from the investigative agencies, those selective are carried as headlines and then in the evening on most media channels you have 4-5 expert jurors although we have abolished jury trial, you have 4-5 expert jurors who promptly come to a conclusion of guilt and convict the accused who has been denied bail in the first instance.
Reputations in India don’t matter. Privacy is a virtue we scorn. We jump into people’s personal lives, we call people names, all in the name of transparency. This system has to be contained if India has to become a serious republic. See the system in other countries. It’s not like you don’t have high profile cases in the UK, US or Europe. You see the measured response. See how BBC covers sensational cases. See how the American media, some of which is fairly on the fringe at times, covers cases. In India nobody is willing to have a hard look as to what ails our system. What happened to Justice Krishna who said bail not jail the rule? Today what has happened is, first there is an allegation of wrongdoing, true or false is the least relevant element in this discussion. There is an allegation of wrongdoing. If the person against whom the allegation is made is in public life, the allegation is taken to be true unless demonstrably established to be wrong. The next step is clamour for an investigation and before even the investigation is a foot a clamour for arrest. When the clamour for arrest becomes deafeningly loud and an arrest is made and bail is denied, try convincing the accused that he got justice in the hands of the courts. What happened to the principle that justice appeared to be done. You’ve put it to one side. What does the investigating agency do because the media is now baying for blood because they have made an allegation of wrongdoing. So what does the investing agency do, give them selective leaks, arrest the accused, the blood letting stops and the case falls by the bay side.
If you want to add a further element which distorts and I make bold to say has completely damaged the rule of law in India is court monitored investigations. When the court today orders an investigation I think the investigating agencies think it is their moral duty to find that a) a crime has been committed and b) that the person against whom the media has made allegations is a criminal and if they don’t do that they have failed their job. I can never forget, when I was solicitor general there were serious allegations of match-fixing, came all over the newspaper. Justice Thomas as he was then on the bench ordered an investigation. A team if the CBI investigated and they came to me and said sir we have not found anything wrong. I said excellent, if you have not found anything wrong give that report. They said according to us none of this constitutes a crime, can we go to Justice MK Mukherjee, he was a very good, adept in criminal law, they took his opinion. He said yes all these wrongful acts do not constitute a crime. They gave a report and the matter was closed. That was 2000. Look at what happened in the 2G case. In the first instance, I had the privilege of appearing with Fali, for Sunil Mittal. See what happened to that. The chairman of a large group of companies treated him like a common criminal and for what? One of the allegations, when the court asked the lawyer appearing for the CBI saying what is the allegation of conspiracy they say he attended telecom secretary’s daughter’s marriage. And the media also picked it up and said, nailed him, nailed him because he was seen in a marriage. What happened in the end? The SC quashed Sunil’s summons, went back to the trial and when the judge finally saw the evidence, god bless him, he passed strictures against the CBI for even having filed the chargesheet. Meanwhile, what happened to Sunil’s reputation? I know what his family lived through. For almost a year, sleepless nights because again there was clamour, ‘why is he not being arrested’. If Raja has been arrested, Gautam has been arrested, if Sunil Mittal has not been arrested? The media’s appetite was not satiating with 3 arrests. So these have become very serious problems on trial by the media. And what we now see is an even more dangerous cocktail of electronic media, social media and print media. Social media has put the power of publication in the hands of everybody who has an opinion and who has a bias and who has a prejudice. People say whatever they want, to whomever they want about whatever they want which gets then picked up on electronic media. Anything written on a Whatsapp is of course presumed to be the Gospel unless proved to be false. And anything heard on tv is presumed to be again the Gospel unless proved to be false.
This atmosphere today is not conducive to the rule of law. This atmosphere today and I make bold to say is the single biggest impediment in India’s growth story. Foreign companies don’t want to invest in India because they feel one of India’s greatest strengths was the largest English speaking democracy with a robust rule of law. I think one of the greatest things which happened despite the terrible tragedy of Bhopal, Warren Anderson was not arrested. Can you imagine that today? What would happen? If something one-hundredth of that happened. Today, that is why, I mean today somebody in Bihar I think had filed a complaint and the SC upheld issuing summons to the chairman of Samsung. As though the chairman of Samsung entered into a conspiracy to get rid of one little dealer of Samsung phones in Bihar. Why because the media said rich vs poor. Today this has reached a point where this has become one of the biggest negatives about Indian democracy. And what we are seeing going on about this latest investigation going on in Mumbai I don’t want to say anything more about it because I think enough has been said. I will only say it would scare anybody who has practised law, who is familiar with the criminal justice system and who is concerned about how the criminal justice system should be.
How do we fix this? The only way to fix this is not through the government because if there is anything worse than a reckless media it is the government tamed media. The irony today is of course as Kapil mentioned on one hand you have media which appears to be uncontrollable on the other hand there are serious concerns about whether they are really under the control of a secret master. I, speaking for myself, don’t subscribe very much to certain theories of government control over the media but let’s put that to one side. I am more concerned about the uncontrolled media. And who can fix this? Not governments. I don’t believe that the ministry of I&B has any business interfering in content because we are laying the edifice of a worst tyranny than an uncontrolled media. The media has to be controlled by the courts. The courts have to lay down the lakshman rekha which should not be transgressed. And I had suggested to successive law ministers and ministers of information broadcasting please establish a tribunal today which will try cases of defamation and deliver judgement in 6 months. The trouble today is you can lie about people, slander people knowing perfectly well that if you file a case for defamation, civil defamation, it will never be heard. In the UK the practice directions are that defamation cases are fast tracked. Take that famous case where wife of the then speaker Sally Berco. She retweeted a tweet with a comment, ‘he had it coming’, there was some allegation made against one of the conservative lords, he brought an action against her, the English court within 3 months took it on board, framed a preliminary issue whether retweeting constituted publication, came to the conclusion it did. It could give rise to a claim in damages and said go settle or come back and we will assess the quantum. The matter got resolved, they kept the quantum quiet because the person who was defamed said I am not in it for the money but I want to vindicate myself. If we have a tribunal in India, presided over by a retired judge where you can have simpler laws not the code of civil procedure and which can take up defamation cases on a priority, the law of defamation is very simple the burden of proof lies on the one who makes a false accusation. If the law of defamation is applied in a court which can deliver justice in 6 months it might go to some extent in taming the media. Ultimately all the media belongs to big business houses nobody wants to see large monetary judgments coming active. I don’t believe in arresting journalists, throwing them in jail, that is the wrong way of dealing with it.
And as Fali in his latest wonderful book said the worst thing we can do is keep pursuing this law of contempt. I think this law of contempt should be parked sooner than later. You’ve seen how people react to the courts acting in contempt. I think that remedy now has failed. Yes, a trial court can surely injunct the media from getting into areas where it feels necessary but to tame this media we have to think of some solution. To protect private reputations we have to think of some solutions and I also feel there has to be a system within the police force where there is a check on media leaks by the force. There has to be an independent person to whom a person can complain. I remember there was a raid once on a lady who used to work in the telecom ministry, the next day the media said they found 4 gold Rolexes in her house, they found this in her house, they found that in her house. Later on it transpired it was complete false, complete nonsense. If you ask them they say somebody told us. So the accountability of the media has to be brought through a system consistent with the rule of law, the law of defamation has to be rigorously applied. Perhaps clear rules have to be made in consultation with the court especially seeing what is going on today. Clear rules have to be made on which are the no go areas for reporting where a crime is actively under investigation. And we have to bring some sense of order back into the system by which the media can continue to do what they are meant to do. Unearth cases where the system fails a victim. But in cases where the system is active, to run as a parallel horse with an investigative agency is the best way to derail the criminal justice system. Finally I want to close with one last thing which I have seen in the last few months. Media channels start running campaigns for public opinion on matters which are in court. I think one of the old contempt cases relating to the Bengal CM had held him up in contempt because he tried putting in public domain and trying to mobilise public opinion against the matter which was being dealt with by the court. This is the biggest threat if today somebody is granted bail and we have a movement or somebody is refused bail and we have a movement or somebody is convicted we have a public movement or we have somebody’s acquittal and we have a public movement, we all as practising lawyers know what hydraulic pressure this will have on the judge who is conducting the trial. This will be the worst distortion of the rule of law and I think this is some place where the courts may have to come in and deal with this matter.
Excerpts from Harish Salve’s speech at the Ram Jethmalani Memorial Lecture
Aatmanirbhar Bharat: Roadmap for making universities self-reliant
Indian universities have taken up the challenge of finding innovative solutions to the problems raised by Covid-19.
Prime Minister Narendra Modi-led government started the Aatmanirbhar Bharat initiative with a motive to address the basic issue of abysmally low market demand and economic slowdown induced by the Covid-19 pandemic. The main thrust of the programme is towards making India self-reliant and resilient in both normal and crisis times. During the pandemic, the universities had a single option of changing the study module to the digital one. The educational institutes started focusing on thinking out of the box to meet the challenges of the digital revolution while embracing entrepreneurship, critical and problem-solving skills as part of the academic experience, as well as creating cultures where innovative thinking is inspired and nurtured.
The challenge didn’t end here. The universities are also planning adequate steps to prepare all students for a rapidly changing job market and to make them industry ready and self-reliant. They must ensure that talent from the diverse, global community has access to opportunities in the new era of digitisation. Since Aatmanirbhar Bharat has become a mantra for everyone, universities are urging students to showcase their talent by developing more Indian apps in different categories under the “Aatmanirbhar Bharat Innovate Challenge”. Apart from this, the following factors are also playing a crucial role in making Indian universities selfreliant:
New dimension to entrepreneurship model
In the pre-Covid era, academic institutions put attention on training their students in skills that were required in larger companies. But with Aatmanirbhar Bharat, the initiative has brought the country’s focus back on MSME — one of the key driving forces towards self-sufficiency. MSME constitutes 80 percent of the workforce in the Indian industry. Ignoring this sector would be a lost opportunity. In developing nations across the world, MSMEs have engaged with academia by investing in research and innovation — a relationship that can benefit both institutions and industry. Students need to be trained accordingly for the jobs that will be in demand in future. Innovation as the major objective
Indian universities have taken up the challenge of finding innovative solutions to the problems raised by Covid-19. Though it has brought insurmountable suffering to humankind, it has also propelled many to push their creative boundaries for the betterment of the society. With the help of advanced artificial intelligence and Internet of Things (IOT), many universities are working hard to transform a village into a smart city so that the residents of the village can also avail all the facilities that will enable them to grow.
Making employment sustainable
When the world is going through such a phase, it is inevitable for the industry to rely on academia to access and train the kind of talent that is required to thrive in the future workplace and to ensure life-long learning. It has been estimated that more than 12 million Indians get job-ready every year but the sad part is that not everyone is well acquainted with the needs of the company. Our educational institutes should follow the “Experiential University” model, which might be one of the answers to the challenge of a highly developed education system. Providing quality education and training
Through the provision of quality education and training to its students, we can make the students self-reliant. It is important that universities pay much premium on this because the more educated and highly skilled people are, the higher are the chances of a nation’s development. It is for this reason that many developed countries that are self-reliant don’t take education for granted. Such countries have a huge chunk of their population having various degrees of quality education and training.
Encouraging students to take responsibilities
Responsible students are aware of their roles, duties, tasks and schedules. This enables them to plan and prepare for their days. They are committed to tasks from start to finish. They will be taking corrective actions on their own. They will also persist in doing tasks even if they are tedious or boring and will always be ready to face the consequences of their actions. Being responsible empowers students to feel confident and in control of their lives.
National Education Policy’s crucial role
The policy lays special emphasis on the National Research Foundation because innovation is important for the country’s progress. Only when we strengthen innovation and research, then our country will remain competitive and move ahead. The more innovation is strengthened in the country, the more progress it will make in a competitive world. This will also enable citizens to become global citizens and at the same time making them know and understand their roots. The New Education Policy also focuses on research and development to make India a key research and development destination for the world.
The author is the Vice Chancellor, JK Lakshmipat University, Jaipur. The views expressed are personal
The evergreen hero and India’s first superstar
Without a doubt, Dev Anand was the first mega star of Indian cinema, who over a period of time, influenced the lifestyles of multiple generations. Although a part of the troika comprising him, Dilip Kumar and Raj Kapoor, he had a fan following that was mind boggling. If Raj Kapoor was considered as the greatest showman and Dilip Kumar the tragedy king, Dev Anand was the quintessential romantic hero. Girls would swoon over him and boys copied his hair style or tried to dress like him. Each and every movie starring Dev Anand would be eagerly awaited and the black market of tickets for the first day, first show was higher than any other contemporary star of his time. Even when Rajesh Khanna and later Amitabh Bachchan attained a superstar status, it was Dev Anand alone who survived their phenomenal rise, and continued to have his box office appeal.
Having interviewed him on several occasions, one could safely conclude that he was a power bank of energy and enthusiasm. He would always be on the lookout for new scripts and new talent and was obsessed with making films. Many of his critics during his last years, wanted him to give up acting, but in his inimitable manner, Dev Saheb, as he was addressed later, would shoot back and ask, what was their problem when he was spending his own money and time in doing what he liked the most. Together with his brothers — Chetan and Vijay — he had set up the Navketan films, under whose banner, he acted in multiple blockbusters. His movies were trend setters and many were even ahead of their times. Guide, for instance, is regarded as probably his most memorable movie, so far as his performance goes, but his appeal always remained undiminished. Tere Mere Sapne and Hare Rama, Hare Krishna were exceptional, as were Taxi Driver, CID, Hum Dono and Jewel Thief. He enthralled his fans by his performances in Johnny Mera Naam and Gambler and innumerable films before that. When Prakash Mehra decided to make Zanjeer, he made Salim-Javed write the script keeping Dev Anand in mind. However, the actor turned down the role and Amitabh stepped in to make history. The principal reason why Dev Saheb outlived his generation of actors in the silver screen was that he kept abreast with the times and looked after his appearance. He told me once that since childhood, he was administered Chyawanprash by his mother and he continued to have it.
Dev Anand had a mind of his own and politically was never afraid of taking a stand. He was one of the very few stars who came out against Emergency in 1977. He was romantically linked to many actresses of his time, Suraiya and Madhubala in the early years and Zeenat Aman in the later phase. However, he did not allow that to affect his work. In an interview, he told me that he would tell me about his heroines one day, but that opportunity never arose. A product of Government College, Lahore, where he was a batchmate of my father, Dev Anand was specially invited by Atal Bihari Vajpayee when he as the Prime Minister undertook his historic Bus Yatra to Lahore. He became a hit, across the border as well. For him, there was no singer who could sing ghazals better than Mohammad Rafi and lighter songs better than Kishore Kumar, both of whom were his favourite playback voices. Most of the films produced by him had music by Sachin Dev Burman, in whose abilities, he had immense faith. However, many others also composed hit songs for him in his various other starrers. When he fell ill, he went to London for treatment since he did not wish any of his fans to see him in the condition he was in. It is not surprising that he breathed his last in the British capital where his last rites were also performed. While remembering him on his 97th birth anniversary on Saturday, we must never forget that Dev Anand was the man for all seasons of the Indian cinema. A phenomenon who left an indelible imprint on the celluloid.
How succession can make or break a party
A political party can survive the test of time only if its brand value stays intact— which is dependent on whom popular leaders pass the baton to. The case of the Shiv Sena is an example of how things can go wrong if poor choices are made.
The driving force behind the success of any sector in the public domain is the dominant perception of its respective brands amongst recipients. The better the perception, the higher the acceptance! There are numerous examples to be analysed of how popular brands had to bite the dust only because their choice of succession had been based on impractical decisions. Look at Nokia’s journey from being the “king of the phone era” to “struggling for survival”, or that of the late Dhirubhai Ambani, whose business was divided between his two sons, Mukesh and Anil Ambani. The economic scenarios of the two, if compared, have become case studies for understanding the importance of succession.
Even politics has not escaped from being grappled with this phenomenon of brand perception. Shiv Sena leader Sanjay Raut has made an appeal recently to MNS chief Raj Thackeray, requesting to step up his efforts and play a vital role in preserving the ‘Thackeray’ brand in Maharashtra’s politics.
As far as the concept of brands is concerned, one has to understand that this particular concept is a marketdriven phenomenon which can be defined as a general idea and an abstract meaning that gives a certain consistency to a brand and creates a distinctive identity in the market and the minds of consumers, or voters, in the case of politics. This is also built over the years.
In the case of the Shiv Sena, which was established by the late Balasaheb Thackeray years ago, it became a widely accepted brand in the Mumbai circles initially since its ideological foundation was based on regional chauvinism. However, with changing times, Balasaheb moved on to the issue of Hindutva, which later resulted in the party extending its base across the entire state of Maharashtra. The brand of the Shiv Sena was also associated with its karyakartas, who worshipped their party leader because Balasaheb Thackeray’s credibility and acceptance had percolated through the minds of his party workers.
However, when it came to appointing his successor, Balasaheb chose his son, Uddhav, over the largely accepted leadership of Raj Thackeray who was seen as the mirror image of Balasaheb. Raj, having learned the basics of politics from Balasaheb himself, could naturally dive into the nature of the politics of the Shiv Sena. However, with the choice of a blood relation over a more politically deserving person, the late Shiv Sena supremo certainly could not manage and navigate through his succession plan. As a result of the choice not being done using the correct equations, political perils were likely to be encountered. And thence commenced the devolution of the “Thackeray” brand in Maharashtra!
The situation now is such that at a time when the Thackeray scion is none other than the chief minister of Maharashtra, his close confidante has appealed to Raj Thackeray to help save the brand of Thackeray. What can be understood from here is that the devolution of a brand, no matter how huge it is, is inevitable if succession is based on emotion or nepotism, rather than pragmatism. Change is the only constant in nature and those who fail to adapt with the changing times are bound to fall.
The BJP is often regarded as the party with a difference. Currently, the BJP is a brand which is much bigger than all the political parties in the country combined. However, the party’s image is marked by its choice of pragmatism and not nepotism. While it is a fact established beyond doubt that the next successor of the Congress will be someone among the Gandhis, or that the successor to Uddhav Thackeray and Raj Thackeray will be Aaditya and Amit, no one in the wildest of their imaginations can name the next BJP national president.
This is the difference between the brand of the BJP and other political parties. The BJP’s brand is based not on one person’s capability but on the ideologies derived from the efforts made by numerous generations. Having said so, it should be mentioned that the torchbearer of the same changes from time to time in the most democratic manner.
As far as the appointing of a successor for the party is concerned, the names of the party’s leaders can point to the fact that the decision is based on merit. While there was the era of Syama Prasad Mukherjee and Deen Dayal Upadhyay, there was also a successful reign handled by the combination of Atal Bihari Vajpayee and L.K. Advani. Similarly, later choices involved the likes of Pramod Mahajan, Arun Jaitley, Nitin Gadkari and Rajnath Singh.
Even now, when our leaders are none other than Prime Minister Narendra Modi, Home Minister Amit Shah and BJP president J.P. Nadda, efficient leaders who have the potential to lead the party in the future are being nurtured and trained from their nascent stages. While thinking of the next ten years, one also has to bear in mind the thought of who can hold the reins for the ten years thereafter! Then one may think of Devendra Fadnavis or Yogi Adityanath. Tejasvi Surya, a party worker who went on to become a Member of Parliament, is also an example of how the BJP believes in making merit-based choices. This practice can also be traced in the RSS where every successor has set a paradigm to be followed, while the organisation evolves and grows stronger.
The most important aspect of the phenomenon of maintaining a brand is to have a strong foundation based on principles and ideologies which have to be improvised with changing times. While making these changes, if the next successor who is appointed is contrary to the needs and requirements of the brand, then decline is inevitable. This is exactly what has happened in the Shiv Sena.
Ever since Uddhav Thackeray became the chief minister and appointed his son as a minister, disdain for the brand of the Shiv Sena commenced. While the first dent on the party brand appeared due to its mismanagement of the state’s governance, the dent only grew deeper with Uddhav Thackeray’s inefficiency in handling the Covid-19 situation. The last nail in the coffin was struck when the Shiv Sena lost the battle of popular perception amidst the Kangana Ranaut versus BMC row. This incident caused the brand image of the Shiv Sena to fall to its lowest.
The situation could have been entirely different had the late Balasaheb Thackeray appointed the correct successor. The case of the Shiv Sena verily makes it clear that taking a pragmatic decision while deciding on matters of succession is ultimately the key to a lasting brand!
The writer is the media head of BJP Maharashtra. The views expressed are personal.
Unveiling 103rd Parliamentary Standing Committee interim report on functioning of virtual courts
Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process improvement through mechanisation is a primitive first step. Technology in the judicial system needs to unfurl its true potential; today, blockchain artificial intelligence, algorithms and the technology of command have the capacity for calling attention to a fundamental transformation of the judicial process, dispute containment, ensuring only those conflicts requiring judicial resolution enter the court system.
The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinised as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide, i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018, live proceeding was permitted. The Committee persuades the judiciary to speculate solutions viz mobile videoconferencing to licence advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity unless the hierarchy is bound to crumble.
“Vision without execution is hallucination”
—Thomas Alva Edison
COVID-19 descended without a warning, as many pandemics do as history tells us. Access to Justice cannot suffer a lockdown whatever be the circumstances; the criminal justice system can- not function without courts. The courtroom is a service liberating the witnesses meant to give testimony, Clients put out their confidence, Contracts get negotiated, Judges hang down their judgements, and Contracts result in legislation delineating statute. No doubt the British system of administration was superfluous but it has some gross deformities in context of adhering in In- dian Judicial System and has outnumbered repercussions.
Consider the most fertile and dangerous embodiment of disillusionment. Our minds can flip from defending the facts we know into a mode of tearing up the reality.
Taking cognizance of the same, on September 11, 2020, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Committee) after taking inputs from key stakeholders and best practices across the globe presented its interim report on “Functioning of Virtual Courts/Court Proceedings Through Video Conferencing” (Report) to the Hon’ble Chairman of Rajya Sabha.
How do we conceive of technology and what we can see as the role of technology in? It must be towards fortifying fundamental values of human dignity and equality; our court procedures are just too tardy, too expensive, and unintelligible to common citizens. Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process Improvement through mechanization is a primitive first step. Technology in the judicial system needs to unfurl its true potential, today blockchain artificial intelligence, algorithms and the technology of command today has the capacity for calling attention to a fundamental transformation of the judicial process, Dispute containment ensuring only those conflicts require judicial resolution, enter the court system. Dispute avoidance facilitates those processes which ensure that a dilemma does not reach the stage of an animosity. Disseminating knowledge about privileges and remedies available, so as to entrust citizens & Emphasising on virtual courts, and the future of technology. While Design structure stimulating technology is required to bolster the ambit of courts to implicate dispute avoidance and to endow dispute containment by the courts to mediation and foster dispute resolution. The UK civil justice council report proclaimed one’s incapable to do this would be a fluoride element in the law is asking when someone introduces fluoride into the water and stop to decay. So we’d be able to stop the decay of the system, and that would be a fluoride element in the law. Forthcoming justice that requires all information & data findings of the courts, as well as court proceedings themselves, should be understandable to non-lawyers. Paradoxically The Indian legal System rolled out virtual hearings by the dint of Article 142 of Indian Constitution on 6th April 2020 besides Turkey, Canada & Italy.
General Concern Surrounding Virtual Courts
The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinized as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018 live proceeding was permitted. The Committee persuades Judiciary to speculate solutions viz mobile videoconferencing to license advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity un- less the hierarchy is bound to crumble. If the efficient sub- ordinate judiciary is built, the amount of reducing the dependency on High Courts will reduce or limit their burden. The National Judicial Data Grid can be taken up for a 360-degree assessment of judicial officers not just in the terms of the cases they dispose but also how far the courts incorporate the ICT governance system. Clasping Technology becomes a major consideration as the majority of the advocates are not well versed. Specialized Course needs to be entertained to swap with digital platforms.
Poor Connectivity leading to glitches & crashing of systems. In the middle, both the ends have better connectivity that will facilitate better video conferencing. The need for good infrastructure is like the pre-requisite of a healthy body for a healthy mind. It is absolutely essential that there is an atmosphere conducive for good work and an individual needs to refurbish skills. Delay in justice delivery system or the judicial process is a very well-known problem in India, which is yet to overcome, it’s austere.
One ought to surmise that for a law or a penal provision to play a role of deterrence the fallout of a criminal trial in the shape of its final verdict and an actual feat of punishment on the censured is equally crucial that of the gravity of the retribution all this has to be rendered before the public memory fades. Halt and technicality are inoperative in civil actions alone. The condition is not better in criminal justice. Many criminals are never apprehended in contrast to corruption, favouritism.
The most efficacious mechanism to battle docket explosion with the utmost accountability is to unravel commercial disputes of an international nature. Expanding virtual courts becomes the prerogative. Certain laws have to be amended to legalise Virtual Hearings. The peculiar taking of things towards judicial administration heads back to the primary importance of rendering justice between man and man via virtual courts to administer distributive justice as it redeems time. Evaluating evidence becomes necessary to decipher conflict between the opposition. The transformation of handling witnesses, adversaries recoups both litigants & Courts time, undue penny too as the concept of speedy trial falls within the ambit of Article-21 is an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution Kartar Singh v. The State of Punjab. The common or mediocre ones that cannot even solicit the justice availed just because of financial deficit becomes a depreciating asset of their life toiling or haggling with the righteous intentions. Judiciary by the very nature does not have a majoritarian impulse. The attacks on the legal fraternity are out of the technology.
In furtherance to the various concerns received by the stake holders and the adverse prevailing situation owing to the on-going pandemic, the Committee also proposed certain recommendations in order to go on efficiently with the justice delivery system even after the pandemic and keep this avenue open for life long.
Some of the key recommendations included; (a) VCs should function in all the Courts even during non-pandemic time, with the consent of all par- ties for certain categories of cases like appeals etc. and final hearings where on- line virtual hearing would be sufficient. Transfer of certain cases from regular courts to VCs will reduce the pendency of cases. (b) A full-fledged VC should be piloted. This would enable the systems to be tested/ refined and further assist the judiciary in identify- ing the cases best suited to VCs. Petty cases should possibly be the first set of cases that may be disposed easily and quickly. (c) VCs may also be extended to cover arbitration hearings, conciliation and summary trials. If national and international arbitrations are allowed to be conducted through VCs, there will be hardly any requirement for real time travel to distant locations. (d) Further, VCs can be extended permanently to various appellate tribunals such as TDSAT, IPAB, NCLAT etc., located across the country which do not require personal appearances of the parties/ advocates. Permanent VCs can also be established for hearing matters relating to administrative and other tribunals at the time of final hearing.
The committee also took into consideration various infrastructural & training requirements that would be necessary to be taken up in order to be well equipped with the technology. The committee recommended the need for increasing broadband access across the populace by timely implementation of National Broadband Mission by The Ministry of Communications. Prevalence of tech brings concerns regarding the data safety and hence the committee also recommended that Ministry of Law and Justice and Ministry of Electronics and Information Technology should address the data privacy and data security concerns while developing an indigenous new platform for India’s judicial system. The said system could leverage block chain technology to improve reliability of evidence and security of transactions and also case files. The report also based its focus on Improving the quality of courtroom technology to overcome the negative impact on advocacy. Further, a study of courtroom design should be commissioned and customized software/ hardware to facilitate VC should be developed.
All such recommendation would go defeated if proper training is not given to both judges as well as advocates. So, in order to be well versed and adopt this technology in long run, the committee also addressed the need of training and opined that Conducting training and awareness programmes in all court complexes across the country needs to be taken. Along with this, Introduction of a computer course as one of the subjects to train future lawyers on digital platforms should be considered by Bar Council of India, so that the upcoming lawyers can be well equipped with digital justice.
Though, the present Report is only an interim report made by the Committee to bring forth the issues being currently faced by the Indian judicial system. While we await the Committee’s conclusive recommendations as per its final report, it seems that the Re- port has taken a holistic approach towards facilitating VCs and at the same time brings substantial judicial reforms. We are sure of that fact that, the adaptability of technology will not only act as an asset to the justice delivery system but proper implementation of the same will also reduce judicial stress of overburdened courts as well as human wealth.
The case of SC gag order against Sudarshan News
One of the arguments advanced by the intervenors is that ‘hate speech’ is punishable under Sections 153A
and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.
Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive.
There has always been a huge debate on this among various writers. Locke provides an interpretation to this as well. He sternly believes that ideas do require labour. Well we can’t expect that an idea to invent a bulb was without an extreme labour being done by Thomas Edison.
The evolving nature and spectrums of the mode of data distribution by the fourth pillar of Indian Democracy has given rise to dynamic challenges for the existing legal framework to control and regulate. Media being the fourth pillar is indeed playing a pivotal role in the society by trying to educate masses. The freedom of press ensures that citizens are vigilant, well informed, and therefore, can discharge their role in a democracy by fixing accountability.
Freedom of Press and Right to Know
The public’s “right to know” has become an increasingly popular political ideal in India. The essence of this right, for both the public and the press, has gained significance and acquired a new meaning in the contemporary era. Although the Constitution does not expressly guarantee the public the “right to know”, an increasing number of constitutional scholars argue that it is an implicit right guaranteed under Article 19 of the Constitution and by the general principles of constitutional democracy. Freedom of press constitutes not only the individual right of the owner of the news publications, the editor, or the journalist; it also includes the right of the citizens to be informed. It can be forcefully argued that the tenets of Article 19 offers within its ambit, the ‘right to know’ without any constitutional, statutory or executive frame- work to restrict or regulate the same before the cause of action arises. Comparatively speaking, the judicial discourse had long evolved since the days of classical Greek and Rome or the 16th century France which staunchly believed in prior restraints along with post- facto substantive measures.
Thus, freedom of press flows from the citizens’ right to know, which is conceived to be paramount. The Hon’ble Supreme Court of India, through several of its decisions on fundamental rights, has developed this jurisprudence. The courts have always been of the opinion and champion of the concept that censorship, since it necessarily restricts freedom, has always been and will continue to be unpopular with those who, from principle, perversity or for profit, insist on unbridled freedom.
Here, as the journalist is claiming that his show is based on his investigation and analysis of data avail- able in the public domain on the selection of students in UPSC Civil Services Examination, it is not only the journalistic freedom which is restricted by the gag order, but it’s also affecting the people’s right to know about the pattern of selection of students in UPSC-CSE.
Writ Jurisdiction when Alternative Remedy is Available
The petitioners approached the Court by way of Article 32 of the Constitution of India, which allows the citizens to approach the Apex Court for enforcement of Fundamental Rights directly. It is settled law that this jurisdiction can only be invoked in the absence of a redressal mechanism or alternative remedy, unless there are compelling circumstances warranting interference of the constitutional court for vindication of fundamental rights. The doctrine of exhaustion of remedies also cements this. The powers conferred and vested with the Apex Court under Article 32 is too infallible to adjudicate upon such issues as well (emphasis on the word ‘adjudicate’).
Rule 6 of the Cable and Television Networks (Regulation) Rules has adequate provisions which disallow the running of any programme, which is an attack on any religion, defamatory or communal. As noted by the Hon’ble Supreme Court in its order, if a show is found to be violative of the said rule, sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1955 are imposed. A bare reading of Sections 19 and 20 makes it amply clear that such sanctions/prohibitions will come from “any authorized officer” or the “Central Government” respectively. The Court, after mentioning the previous sections, took it upon themselves to exercise a power which must be kept outside of their reach.
One of the arguments advanced by the intervenors is that “hate speech” is punishable under Sections 153A and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.
Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive. Under no stretch of imagination can these be used by the Apex Court to issue a blanket order restricting the Freedom of Speech and Expression, which is guaranteed by Article 19(1)(a) of the Constitution. These provisions come into picture after the content is delivered/published, and if the person is found guilty, they shall be punished as per law. For the sake of argument, even if the Court interprets the said provisions to be preventive as well, it is well settled that Fundamental Rights will overpower statutory provisions if they are at loggerheads.
That right is not absolute; it comes with restrictions laid in Article 19(2). It is well settled that before restricting anyone’s freedom under Article 19(1)(a), the “speech/ expression” has to be examined; and if it passes the tests laid in Article 19(2) – post-examination – it may be restricted. One of the issues with this blanket gag order is that it was passed based on a “prima facie” view, formed after looking at some snippets of the show provided by the petitioners, even when the Counsel for Sudarshan TV requested the Court to watch and con- sider the series in toto. Quite interestingly, the Court did not enter the domain of Article 19(1)(a) vs. Article 19(2), but even if they had, it is not within the reach of the Court to pass gag orders invoking the restrictions laid in Article 19(2).
Notably, the constitutional text of Article 19(2) states that the State might make laws to restrict the right guaranteed under Article 19(1)(a). Firstly, it is the ‘State’ which can limit the right and secondly, it has to be done by bringing a ‘law’. In a long catena of judgments, the Hon’ble Apex Court has time and again held that judicial functions of the Judiciary are not under the ambit of “State” as per Article 12 of the Constitution. In the landmark judgment of K.A. Abbas vs The Union of India, the Hon’ble Apex Court held that pre-censorship is allowed as per Article 19(2), but the same has to be done by statutory bodies which are formed by the “State” as per law. It was also laid that statutory bodies will have to lay guidelines and clearly express what would not be permissible. The Court, while getting into the debate of free speech and hate speech, fails to observe that no such guidelines have been formulated as of now. The apex court could have directed the appropriate statutory body/executive body to con-sider the prior restraint position and take appropriate action instead of venturing into the content editorial domains. No matter how one justifies it, Sr. Counsel Shyam Divan’s submissions that a constitutional court should not enter into the fields of content regulation are legally sound.
In this case, the Ministry of Information & Broadcasting, News Broadcasters Association and the Press Council of India were asked to reply, but the order was passed before they could submit their response. Simply put, no stakeholders – including the judges – could examine whether the impugned show could be termed as “hate speech” before the voice was muffled.
On a petition seeking similar reliefs in Delhi High Court, the Ministry of I&B, in its order dated 9th September 2020 refused to ban the show and stated that if the show violates the Programme Code under the Cable Television Networks (Regulation) Act, suitable action will be taken.
Jurisprudence on Prior Restraint: Bypassing the Statutory Mechanism
Delving into the jurisprudence of Prior Restraint, we shall start with the gold- en words of Mr. William Blackstone which strike at the heart of the current issue:“The liberty of the press is
indeed essential to the nature of a free state”. He emphasized on laying no previous restraints on publication, rather punish the publisher after publication, as per the established law. In Patter- son vs Colorado [205 U.S. 454, 462], Holmes J. of The Supreme Court of The United States, while referring to the cherished First Amendment of the American Constitution stated that it was passed to prevent previous restraints upon publications. Article 5 of the Basic Law for the Federal Republic of Germany and Article 21 of The Constitution of Japan guarantees Freedom of Speech and Expression and prohibit censorship of any kind, categorically that of the Press. In India, there are a plethora of cases which have held that prior restraint orders shall not be passed. While hearing a PIL filed by the NGO Common Cause in 2017 praying for regulating the content of the media, the Hon’ble SC had opined that pre-broadcast or pre-publication censorship is not the business of the Court and that all grievances against objectionable content will be dealt with in accordance with the law of the land after its publication.
The Counsel for the retired civil servants who intervened in the matter had argued that “hate speech undermines free market place of ideas”. Quite interestingly, in a blog, while defending free speech and criticizing blanket gag orders by the Apex Court, he had written: “Prior restraint is considered especially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere.” Subsequent to this, he also wrote: “we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech”. In another blog titled “Judicial Censorship: A Dangerous, Emerging Trend”, the Counsel had vehemently opposed the “trend” where Judiciary is passing gag orders which as per him is outside of the powers given to them by the Constitution of India. We, lawyers, have often been blamed for being biased towards our cause before the bench even though academically and legally we hold contradictory positions. But contradicting oneself with recorded writings is an insult to one’s own intelligence both as an academician and a lawyer.
It was argued that concession could be made in case of “hate speech”, which is distinguishable from “offensive speech”. For the sake of argument, even if we consider that the impugned show comes under the purview of hate speech, then also it has to be dealt with in accordance with the law. In Pravasi Bhalai Sangathan vs U.O.I. & Ors., the Hon’ble SC had laid: “As referred to here in above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of “hate speeches”. Thus, person aggrieved must resort to the remedy provided under a particular statute.” The precedents pertaining to categorization and classification of “hate speech” needs to be settled as well. Hate speech is an offence but dictating ‘prior restraint’ rationale akin to qui timet in the particular instance sets a dangerous precedent.
Observations of the Bench During Proceedings (Related to Constitution of a Committee of 5 Distinguished Individuals)
On Tuesday, in addition to free speech, self-regulation and legal restraint, the Court ventured into issues of ownership models of TV channels, revenue generation and the number of advertisements that the government gives to them. The discussion soon moved to the possibility of constitution of a committee of “distinguished individuals” to frame guidelines for the electronic media. Both the observations are deeply problematic because it’s not the domain of Judiciary to keep a check on the revenue model of media houses. The observation of the commis-be a case of judicial overreach.
Appointing committees and framing of regulations is a legislative and executive function. If someone believes in the idea of democracy, the concept of distinguished/eminent personalities can’t be said to conform with the high standards of constitutional democracy.
Hon’ble Justice Chandrachud observed that a pre-publication restraint is one of the rarest rationales to be exercised under extreme recourse and can take the Court down a slippery slope. The Court expressed its anguish but yet the gag order was not vacated and instead it went ahead with segments of content editorial suggestions. If one were to infer a ‘collateral bar rule’– which prevents any challenges to a court order if the party disobeys the order before first challenging it in court – arising out of such steps in the Indian context, it sets a duty of absolute obedience notwithstanding any constitutional rights un- less the concerned order has been set aside by a higher authority.
To conclude, the Court’s order of prior legal restraint is problematic in light of the availability of an alternative remedy under various Acts and the settled jurisprudence pertaining to the issue. It interferes with the people’s right to know. Moreover, it’s not the domain of Judiciary to keep a check on the revenue model of media houses; and the observation pertaining to the constitution of a commission, in our humble opinion, will be a case of judicial overreach.
Siddharth Nayak is Managing Partner, Atharva Legal. Vijay Tyagi is LL.M, Constitutional Law, Indian Law Institute and ex-LAMP Fellow. Krishnagopal Abhay is a 2nd-year student of LL.B at Campus Law Centre, University of Delhi.
Cold War 2.0 is here
The battle lines are drawn. If anyone still believes that the world has not got divided into two blocs and the icy winds of Cold War 2.0 are not freezing relations, needs to take a look at the speeches delivered at the United Nations General Assembly this week to know which way things are headed. The UNGA is commemorating 75 years of the end of the Second World War, or “World Anti Fascist War” as Chinese President Xi Jinping termed it in his speech. On this forum the contours of the new world order are becoming clearer—a broadly bipolar world inside which multi- polarity functions. One of these two poles is occupied by communist China, while the other by the world’s premier superpower, the United States. China has pushed the world towards bipolarity, with the ultimate aim of fashioning a unipolar world where it is the sole imperial power and everyone else vassal states. At the UNGA, it was surreal the way Xi Jinping went about projecting himself as the global statesman in his speech, when the reality is a world harried by China’s misadventures, its push for influence, its debt trap diplomacy, its spying, its attempts to subvert democracies, its refusal to take responsibility for the coronavirus pandemic, its malignant and authoritarian core. In fact, almost everything Xi said can be countered as China doing exactly the opposite on the ground. He talked about countries sharing a “common future”;
about no country gaining from “others’ difficulties”; on why the world should avoid a “beggar-thy-neighbour policy”; “pursue win-win cooperation”; “rise above ideological disputes and do not fall into the trap of clash of civilizations”; that he is not interested in “cold War or hot war”, and so on and so forth. It was bizarre! In a not so-concealed barb at US President Donald Trump’s “America First” policy, the Chinese President added, “burying one’s head in the sand like an ostrich in the face of economic globalization or trying to fight it with Don Quixote’s lance goes against the trend of history”—it’s a different matter that this can be taken as an implicit admission of China being in economic trouble because of the trade war unleashed by Donald Trump. At the other end of the pole, the US President launched a no-holds-barred attack on the “invisible enemy” that is the “China virus”.
He compared the “mobilization” against the virus in his country being the “most aggressive” “since the second world war”, thus placing Xi Jinping’s China firmly in the company of Hitler’s Nazi
Germany—a comparison Xi has been attracting from many quarters courtesy his aggressive, expansionist policies and his treatment of minorities in his country. As for Russia, its President Vladimir Putin too did not mince words in identifying the United States and its al- lies as being the adversaries, who are not paying heed to Russia’s appeal for “mutual restraint” with regard “to deploying new missile systems”. Countries such as Cuba, Venezuela and Iran went a step further to denounce the “hegemony” and “imperialist ideas” of the US, apart from labelling it as the “greatest danger to international peace and security”—language that is straight out of the Cold War playbook. Interestingly, all of them talked about a multipolar world, while throw- ing their lot in with China, in what will likely be a unipolar world if the Chinese achieve their objective of displacing the US as the world’s number one superpower. And now the most important question: which side does India go with, now that Cold War 2.0 is here? While multipolarity is a good intention, the reality is bipolarity, and sooner or later, reality will clash with the intention. Will India stop waffling then? Will India choose correctly? Which way should India go? With the authoritarian and its rag-tag bunch of bankrupt dictatorships and losers of Cold War 1.0? Or with the free world that is trying to come together to take on the most malign power that this globe has witnessed in several decades, a power that has India’s dismemberment at the core of its Asian policy? The answer is a no- brainer.
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