JAN LOKPAL BILL

JAN LOKPAL BILL

INDIA AGAINST CORRUPTION/ NEW DELHI

Salient features of Jan Lokpal Bill

1. An institution called LOKPAL at the centre and LOKAYUKTA in each state will be set up
2. Like Supreme Court and Election Commission, they will be completely independent of the governments. No minister or bureaucrat will be able to influence their investigations.
3. Cases against corrupt people will not linger on for years anymore: Investigations in any case will have to be completed in one year. Trial should be completed in next one year so that the corrupt politician, officer or judge is sent to jail within two years.
4. The loss that a corrupt person caused to the government will be recovered at the time of conviction.
5. How will it help a common citizen: If any work of any citizen is not done in prescribed time in any government office, Lokpal will impose financial penalty on guilty officers, which will be given as compensation to the complainant.
6. So, you could approach Lokpal if your ration card or passport or voter card is not being made or if police is not registering your case or any other work is not being done in prescribed time. Lokpal will have to get it done in a month's time. You could also report any case of corruption to Lokpal like ration being siphoned off, poor quality roads been constructed or panchayat funds being siphoned off. Lokpal will have to complete its investigations in a year, trial will be over in next one year and the guilty will go to jail within two years.
7. But won't the government appoint corrupt and weak people as Lokpal members? That won't be possible because its members will be selected by judges, citizens and constitutional authorities and not by politicians, through a completely transparent and participatory process.
8. What if some officer in Lokpal becomes corrupt? The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any complaint against any officer of Lokpal shall be investigated and the officer dismissed within two months.
9. What will happen to existing anti-corruption agencies? CVC, departmental vigilance and anti-corruption branch of CBI will be merged into Lokpal. Lokpal will have complete powers and machinery to independently investigate and prosecute any officer, judge or politician.
10. It will be the duty of the Lokpal to provide protection to those who are being victimized for raising their voice against corruption.

Deficiencies in the present anti-corruption systems

Central Government level:

At central Government level, there is Central Vigilance Commission, Departmental vigilance and CBI. CVC and Departmental vigilance deal with vigilance (disciplinary proceedings) aspect of a corruption case and CBI deals with criminal aspect of that case.

Central Vigilance Commission: CVC is the apex body for all vigilance cases in Government of India.

• However, it does not have adequate resources commensurate with the large number of complaints that it receives. CVC is a very small set up with a  staff strength less than 200. It is supposed to check corruption in more than 1500 central government departments and ministries, some of them being as big as Central Excise, Railways, Income Tax etc. Therefore, it has to depend on the vigilance wings of respective departments and forwards most of the complaints for inquiry and report to them. While it monitors the progress of these complaints, there is delay and the complainants are often disturbed by this.  It directly enquires into a few complaints on its own, especially when it suspects motivated delays or where senior officials could be implicated. But given the constraints of manpower, such number is really small.
• CVC is merely an advisory body. Central Government Departments seek CVC's advice on various corruption cases. However, they are free to accept or reject CVC's advice. Even in those cases, which are directly enquired into by the CVC, it can only advise government. CVC mentions these cases of non-acceptance in its monthly reports and the Annual Report to Parliament. But these are not much in focus in Parliamentary debates or by the media.
• Experience shows that CVC's advice to initiate prosecution is rarely accepted and whenever CVC advised major penalty, it was reduced to minor penalty. Therefore, CVC can hardly be treated as an effective deterrent against corruption.
• CVC cannot direct CBI to initiate enquiries against any officer of the level of Joint Secretary and above on its own. The CBI has to seek the permission of that department, which obviously would not be granted if the senior officers of that department are involved and they could delay the case or see to it that permission would not be granted.
• CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary matters.
• It does not have powers over politicians. If there is an involvement of a politician in any case, CVC could  at best bring it to the notice of the Government. There are several cases of serious corruption in which officials and political executive are involved together.
• It does not have any direct powers over departmental vigilance wings. Often it is seen that CVC forwards a complaint to a department and then keeps sending reminders to them to enquire and send report. Many a times, the departments just do not comply. CVC does not have any really effective powers over them to seek compliance of its orders.
• CVC does not have administrative control over officials in vigilance wings of various central government departments to which it forwards corruption complaints. Though the government does consult CVC before appointing the Chief Vigilance Officers of various departments, however, the final decision lies with the government. Also, the officials below CVO are appointed/transferred by that department only. Only in exceptional cases, if the CVO chooses to bring it to the notice of CVC, CVC could bring pressure on the Department to revoke orders but again such recommendations are not binding.
• Appointments to CVC are directly under the control of ruling political party, though the leader of the Opposition is a member of the Committee to select CVC and VCs. But the Committee only considers names put up before it and that is decided by the Government. The appointments are opaque.
• CVC Act gives supervisory powers to CVC over CBI. However, these supervisory powers have remained ineffective. CVC does not have the power to call for any file from CBI or to direct them to do any case in a particular manner. Besides, CBI is under administrative control of DOPT rather than CVC.
• Therefore, though CVC is relatively independent in its functioning, it neither has resources nor powers to enquire and take action on complaints of corruption in a manner that meets the expectations of people or act as an effective deterrence against corruption.

Departmental Vigilance Wings: Each Department has a vigilance wing, which is manned by officials from the same department (barring a few which have an outsider as Chief Vigilance Officer. However, all the officers under him belong to the same department).

• Since the officers in the vigilance wing of a department are from the same department and they can be posted to any position in that department anytime, it is practically impossible for them to be independent and objective while  inquiring into complaints against their colleagues and seniors. If a complaint is received against a senior officer, it is impossible to enquire into that complaint because an officer who is in vigilance today might get posted under that senior officer some time in future.
• In some departments, especially in the Ministries , some  officials double up as vigilance officials. It means that an existing official is given additional duty of vigilance also. So, if some citizen complaints against that officer, the complaint is expected to be enquired into by the same officer. Even if someone complaints against that officer to the CVC or to the Head of that Department or to any other authority, the complaint is forwarded by all these agencies and it finally lands up in his own lap to enquire against himself. Even if he recuses himself from such inquiries , still they have to be handled by those who otherwise report to him. There are indeed examples of such absurdity.
• There have been instances of the officials posted in vigilance wing by that department having had a very corrupt past. While in vigilance, they try to scuttle all cases against themselves. They also turn vigilance wing into a hub of corruption, where cases are closed for consideration.
• Departmental vigilance does not investigate into criminal aspect of any case. It does not have the powers to register an FIR.
• They also do not have any powers against politicians.
• Since the vigilance wing is directly under the control of the Head of that Department, it is practically impossible for them to enquire against senior officials of that department.
• Therefore, , the vigilance wing of any department is seen to softpedal on genuine complaints or  used to enquire against " inconvenient" officers.

CBI: CBI has powers of a police station to investigate and register FIR. It can investigate any case related to a Central Government department on its own or any case referred to it by any state government or any court.

• CBI is overburdened and does not accept cases even where amount of defalcation is alleged to be around Rs 1 crore.
• CBI is directly under the administrative control of Central Government.
• So, if a complaint pertains to any minister or politician who  is part of a  ruling coalition or a bureaucrat who is close to them, CBI's credibility  has suffered and there is increasing public perception that  it cannot do a fair investigation and that it is influenced to  to scuttle these cases.
• Again, because CBI is directly under the control of Central Government, CBI is perceived to have been often  used to settle scores against inconvenient politicians.

Therefore, if a citizen wants to make a complaint about corruption by a politician or an official in the Central Government, there isn't a single anti-corruption agency which is effective and independent of the government, whose wrongdoings are sought to be investigated. CBI has powers but it is not independent. CVC is independent but it does not have sufficient powers or resources.

Existing System	System Proposed by civil society
No politician or senior officer ever goes to jail despite huge evidence because Anti Corruption Branch (ACB) and CBI directly come under the government. Before starting investigation or initiating prosecution in any case, they have to take permission from the same bosses, against whom the case has to be investigated.	Lokpal at centre and Lokayukta at state level will be independent bodies. ACB and CBI will be merged into these bodies. They will have power to initiate investigations and prosecution against any officer or politician without needing anyone's permission. Investigation should be completed within 1 year and trial to get over in next 1 year. Within two years, the corrupt should go to jail.
No corrupt officer is dismissed from the job because Central Vigilance Commission, which is supposed to dismiss corrupt officers, is only an advisory body. Whenever it advises government to dismiss any senior corrupt officer, its advice is never implemented.	Lokpal and Lokayukta will have complete powers to order dismissal of a corrupt officer. CVC and all departmental vigilance will be merged into Lokpal and state vigilance will be merged into Lokayukta.
No action is taken against corrupt judges because permission is required from the Chief Justice of India to even register an FIR against corrupt judges.	Lokpal & Lokayukta shall have powers to investigate and prosecute any judge without needing anyone's permission.
Nowhere to go - People expose corruption but no action is taken on their complaints.	Lokpal & Lokayukta will have to enquire into and hear every complaint.
There is so much corruption within CBI and vigilance departments. Their functioning is so secret that it encourages corruption within these agencies.	All investigations in Lokpal & Lokayukta shall be transparent. After completion of investigation, all case records shall be open to public.  Complaint against any staff of Lokpal & Lokayukta shall be enquired and punishment announced within two months.
Weak and corrupt people are appointed as heads of anti-corruption agencies.	Politicians will have absolutely no say in selections of Chairperson and members of Lokpal & Lokayukta. Selections will take place through a transparent and public participatory process.
Citizens face harassment in government offices. Sometimes they are forced to pay bribes. One can only complaint to senior officers. No action is taken on complaints because senior officers also get their cut.	Lokpal & Lokayukta will get public grievances resolved in time bound manner, impose a penalty of Rs 250 per day of delay to be deducted from the salary of guilty officer and award that amount as compensation to the aggrieved citizen.
Nothing in law to recover ill gotten wealth. A corrupt person can come out of jail and enjoy that money.	Loss caused to the government due to corruption will be recovered from all accused.
Small punishment for corruption- Punishment for corruption is minimum 6 months and maximum 7 years.	Enhanced punishment - The punishment would be minimum 5 years and maximum of life imprisonment.

Critique of Government's Lokpal Bill 2010

(Proposed to be passed as an ordinance by the Central government)

UPA government has been under constant attack due to exposure of one scam after the other on the issue of corruption. In order to salvage its image, the government proposes to set up an institution of Lokpal to check corruption at high places. However the remedy seems to be worse than the disease. Rather than strengthening anti corruption systems, this bill if passed, will end up weakening whatever exists in the name of anti corruption today.

The principal objections to government's proposal are as follows:

1. Lokpal will not have any power to either initiate action suo motu in any case or even receive complaints of corruption from general public. The general public will make complaints to the speaker of Lok Sabha or chairperson of Rajya Sabha. Only those complaints forwarded by Speaker of Lok Sabha/ Chairperson of Rajya Sabha to Lokpal would be investigated by Lokpal. This not only severely restricts the functioning of Lokpal, it also provides a tool in the hands of the ruling party to have only those cases referred to Lokpal which pertain to political opponents (since speaker is always from the ruling party). It will also provide a tool in the hands of the ruling party to protect its own politicians.
2. Lokpal has been proposed to be an advisory body. Lokpal, after enquiry in any case, will forward its report to the competent authority. The competent authority will have final powers to decide whether to take action on Lokpal's report or not. In the case of cabinet ministers, the competent authority is Prime Minister. In the case of PM and MPs the competent authority is Lok Sabha or Rajya Sabha, as the case may be. In the coalition era when the government of the day depends upon the support of its political partners, it will be impossible for the PM to act against any of his cabinet ministers on the basis of Lokpal's report. For instance, if there were such a Lokpal today and if Lokpal made a recommendation to the PM to prosecute A. Raja, obviously the PM will not have the political courage to initiate prosecution against A. Raja. Likewise, if Lokpal made a report against the PM or any MP of the ruling party, will the house ever pass a resolution to prosecute the PM or the ruling party MP? Obviously, they will never do that.
3. The bill is legally unsound. Lokpal has not been given police powers. Therefore Lokpal cannot register an FIR. Therefore all the enquiries conducted by Lokpal will tantamount to "preliminary enquiries". Even if the report of Lokpal is accepted, who will file the chargesheet in the court? Who will initiate prosecution? Who will appoint the prosecution lawyer? The entire bill is silent on that.
4. The bill does not say what will be the role of CBI after this bill. Can CBI and Lokpal investigate the same case or CBI will lose its powers to investigate politicians? If the latter is true, then this bill is meant to completely insulate politicians from any investigations whatsoever which are possible today through CBI.
5. There is a strong punishment for "frivolous" complaints. If any complaint is found to be false and frivolous, Lokpal will have the power to send the complainant to jail through summary trial but if the complaint were found to be true, the Lokpal will not have the power to send the corrupt politicians to jail! So the bill appears to be meant to browbeat, threaten and discourage those fighting against corruption.
6. Lokpal will have jurisdiction only on MPs, ministers and PM. It will not have jurisdiction over officers. The officers and politicians do not indulge in corruption separately. In any case of corruption, there is always an involvement of both of them. So according to government's proposal, every case would need to be investigated by both CVC and Lokpal. So now, in each case, CVC will look into the role of bureaucrats while Lokpal will look into the role of politicians. Obviously the case records will be with one agency and the way government functions it will not share its records with the other agency. It is also possible that in the same case the two agencies arrive at completely opposite conclusions. Therefore it appears to be a sure way of killing any case.
7. Lokpal will consist of three members, all of them being retired judges. There is no reason why the choice should be restricted to judiciary. By creating so many post retirement posts for judges, the government will make the retiring judges vulnerable to government influences just before retirement as is already happening in the case of retiring bureaucrats. The retiring judges, in the hope of getting post retirement employment would do the bidding of the government in their last few years.
8. The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. Barring Vice President, all of them are politicians whose corruption Lokpal is supposed to investigate. So there is a direct conflict of interest. Also selection committee is heavily loaded in favor of the ruling party. Effectively ruling party will make the final selections. And obviously ruling party will never appoint strong and effective Lokpal.
9. Lokpal will not have powers to investigate any case against PM, which deals with foreign affairs, security and defence. This means that corruption in defence deals will be out of any scrutiny whatsoever. It will become impossible to investigate into any Bofors in future.

Therefore, the draft Lokpal ordinance is eyewash, a sham. It is sad that despite so much of embarrassment caused to UPA due to so many scams, UPA is still making a fool of the people in the form of this draft ordinance.

Charlie Chaplin Speaks

Adorable cute girl saving the planet

MY POEM

नशा है नाश 

नशे में नही शान, यह भली-भाँति जान, 

सुन खोल के कान, यह है बीमारियों की खान, 

तू है मेजबान, यह है मेहमान, 

मान ना मान, यह छीनेगा पहचान, 

पाना है सम्मान,सुधार खान-पान, 

क्यों है अनजान, यह लेगा जान, 

देनी ही है जान, तो देश पर हो कुर्बान, 

ना हो परेशान, नशा मुक्ति ठान|| 

                            -जतिन  गर्ग "बादल"

Modi's words at vibrant Gujart summit

Namaste,

Excellent speech .....

Some key points which I liked most ..

Today is also the birthday of Swami Vivekananda, one of the greatest visionaries the world has ever produced. He envisioned a world which is driven by "spiritual humanism" that will enable everyone to have freedom, knowledge and happiness.

The 21st century is not only the century of India but also that of Asia. Therefore, we have to look at the role of Gujarat not only in the context of India but also of Asia. Whenever India led the world, the welfare of human beings was at the center. The cultural heritage of India has compassion, equity and love at its core. This is the land where Buddha and Mahavir walked. Whenever India suffered a setback, humanity did too.

The development process in the 20th century was based on exploitation. The model of development was exploitation of the weak by the strong, exploitation of the laborers of the poor countries; nations exploiting one another. The mindset was unlimited exploitation and use of natural resources, as if they would last forever. Therefore, in this century, it has become necessary to bring about a change in our thinking, in our institutions and mechanisms.

However, investment flow into the State is only a small part of the objective of this event. The greater objective is to energize global networking for knowledge and technology sharing; to learn the best practices and to encourage the people to think big and take up challenging projects.

We have not only registered overall double-digit GDP growth but our important sectors have also registered double-digit growth. Our Industry has grown at 13% in the last decade. Our agriculture has grown at 9.6% over last seven years. The per capita income of the people has grown at 13.8%. With these and several similar indicators, we are already regarded as the "Growth Engine of India".

This is the reason that our contribution to industrial output is around 16%, consistently for a decade. This is the reason that we contribute 22% of India's exports. This is also the reason that we account for 30% of India's market capitalization. We are committed to not only retain this position but to further improve it.

I must also add here that the achievements of Gujarat are all-pervasive. They are not region specific, sector specific or community specific. Our people are not only beneficiaries but they are active partners in the process of development. The State Government is playing the role of a catalyst and facilitator. Gujarat has, in fact, emerged as a model of Good Governance not only in the country but in the entire world.

Now, we are increasingly becoming carbon conscious too. One of the biggest changes that we are bringing in is to ensure that whatever we do, we do in a manner that the environmental impacts are minimum. I know for sure that managing climate change is very critical to human existence. To tackle it, Gujarat was the first Country or State in Asia to establish a separate Department of Climate Change.

http://ibnlive.in.com/news/narendra-modis-speech-at-vibrant-gujarat-2011/140214-53.html

Dear Friends,

 

Find below an article on the recent astonishing change in Supreme Court's verdict in the enitre history of Indian Judiciary System. This perhaps has been influenced by few so called leading Editor Media Groups and Civil Society Members of New Delhi. In this backdrop, can we expect the basic judgment from the honorable supreme court which has always been considered in high esteem in Indian Judiciary System. Now it is up to all of us to justify and further believe in the entire judiciary system.

 

Time has come when we should take-up the cudgle in individual and organizational level against this disparity in judgment.

 

The Supreme Court backtracks in Graham Staines Case

                                                                                                                                                ASHOK SAHU, IPS (Retd.)

The infamous Graham Staines murder case stunned the entire world and among the recorded history of cases is perhaps, one of the most discussed and at the same time most distorted incident ever reported in the annals of legal battles. We have heard of media trials before the accused in certain incidents is subjected to a forensic trial by a court of law; but in this instant case there was media judgment before investigation and trial were initiated and the accused persons were identified much before any action, whatsoever was started by the legally authorised agencies. What is more stunning is: there appears to be revision of a judgment, finally 'perfected' and pronounced by the Supreme Court on the 21^st January 2011, at the dictate of the media. (See Sunday Hindu dated 23/01/2011). One Rabindra Kumar Pal, a village teacher from Uttar Pradesh teaching Hindi to tribes in the area was demonized by the media and within days his huge photographs were displayed at all important places that compelled the wanted man to hide in jungles lest he is caught by people for the award of ten lakhs declared over his head. He was never convicted of having committed any crime before. After the incident of the death of three persons while sleeping in a station wagon in a non-descript village in remote Keonjhar district of Odisha was reported, a sitting judge of the Supreme Court was constituted into one man Enquiry Commission     (Justice Wadhwa Enquiry Commission) to enquire into and find out if any organization was involved in the incident, because the victims in the incidents were foreign missionaries and the area was agog with anti-conversion reaction prior to that occurrence.

Graham Stewart Staines was an Australian missionary who since 1965 was staying in Baripada, the headquarters of Mayurbhanj District in Odisha and got killed along with his two minor sons while sleeping in his station wagon during a 'Jungle Camp' at Manoharpur village in nearby Keonjhar District on the midnight of 22^nd and 23^rd of January 1999. He was associated with the Evangelical Missionary Society of Mayurbhanj (EMSM) since 1967 and took over the running of the Mission at Baripada only in 1983. While ostensibly looking after a Leprosy Home at Baripada, he was mostly keeping himself busy in getting the tribes in the three districts of Keonjhar, Sundargarh and Mayurbhanj converted to Christianity. According to 1961 census the Christian population of Sundargarh, Keonjhar and Mayurbhanj was 106300, 802 and 870 respectively that jumped to 308476, 6144 and 9120 by 2001 census. Between 1961 and 2001 when the Hindu population in the area increased little more than twice, the Christian population increased almost three to ten times in these three tribal districts. There was a clear indication that in these three districts where the tribes numbered more than 50% of the total population, tribal poor were targeted by the Missionaries for conversion led by Graham Stewart Staines under the cloak of service through teaching Gospels and holding 'Jungle Camps', a phrase coined by Graham himself to cover his clandestine activities of proselytization. However there was large scale resentment among the Hindu tribal population who used to be disturbed by the 'jungle camps' held during the Makar festival during second week of January every year. In 1999, on the 20^th January Graham Staines comes with his two minor sons, and one Gilbert Venzo an Australian, two other friends and four of his servants and drivers to Manoharpur village. They showed movies on the life of Jesus Christ by connecting the projector to the batteries in the station wagon with the engine on. There is no electricity supply in the village or any petrol pump within 50 K.M. radius of the village. So Graham used to carry extra fuel to support the generators for screening films using projectors and also take care of their return journey. As per the statement of the persons accompanying him, he used to cook himself inside the vehicle and sleep inside the same station wagon with straw on top of it to protect from biting cold. During December-January the night temperature is normally 4 to 2 degree centigrade in that area. On that fateful night also straw were put on top of the vehicles and after dinner they retired to bed in the night of  22^nd-23^rd January 1999. While Staines was sleeping, thus, along with two of his minor sons in one of the two station wagons, the vehicle caught fire and all the inmates inside the vehicle were charred to death.    

                The incident by itself was too unfortunate and sad that can shake any human being as three persons including two innocent boys below ten years of age got burnt while sleeping, whether by accident or by conspiracy. There is no credible eye witness to establish that the fire emanated from outside and burnt the vehicles including the inmates. But the available evidences at the place of occurrence and the forensic science analysis of the materials available at the spot indicate also that the fire could have emanated from within and later spread to outside as a result of which only the rear portion of the station wagon was more damaged than the front portion. The Church in front of which the vehicles were parked was not damaged. Had the people who were displeased with the deceased missionary tried to harm could also set fire to the Church which symbolizes Christianity. The missing vessels/jerry canes carrying extra diesel kept in the other vehicle must have got burnt and the fuel tanks in both the vehicles became empty due to the intense fire. The forensic science report specifically mentions in the prosecution story that the agent of fire was either kerosene or diesel that enhanced the intensity of the fire to about 7000 degree centigrade that melted even the aluminum roofs and glass windows. At about 3.00 A.M. at the fag end of the night people saw the vehicles have completely gutted and the inmates charred to death. One Rolia Soren, who is a resident of Manoharpur and an ex-Pastor of the Church, gave an oral report (reduced into an F.I.R. later) mentioning many names of the locality but none of the named accused persons were charge sheeted by the prosecution. In that F.I.R. Soren suspected Dara Singh but failed to identify during deposition in the trial court. Initially, 50/60 persons were rounded up as suspects who were Hindu activists and known for protesting against Christian Missionaries' operation of 'Harvesting of Souls' and converting poor and illiterate tribes. The investigation was taken over by the State CID which got all the arrested released. Later the matter was handed over to the federal investigation agency called the CBI.

   Between 03/5/1999 and 14/6/1999 the CBI changed its investigating officers for the fourth time within little more than one month of its investigation. The prosecution witnesses who were not coming forward to speak about the incident to any of the top officials who were camping in the area ever since the incident since 22/01/1999 till May end of the same year, but started pouring in to speak, once the PW 55 took over investigation on 10/5/1999 and the case was accordingly charge sheeted on 22/6/1999. Accused persons under arrest were made to confess under section 164 of the Criminl Procedure Code while in CBI custody and sent back to the CBI custody after recording statements. The trial court examined 55 witnesses supporting the prosecution case and 25 witnesses deposed in support of the defense of 18 accused persons. On 22/9/2003 the trial court sentenced with death penalty against the main accused and life imprisonment against 12 others and the rest were acquitted for want of proof. On appeal before the High Court, the sentence of death penalty was reduced to life imprisonment against main accused Rabindra Kumar Pal @ Dara Singh and confirmed the life imprisonment on Mahendra Hembram and acquitted 11 other accused persons by the High Court by its order dated 19/5/2005. The CBI appealed before the Supreme Court challenging the High Court order and prayed to restore the trial court sentences on all the accused persons, where as the main accused Rabindra Kumar Pal @ Dara Singh and his accomplice Mahendra Hembram appealed against the High Court judgment and pleaded for acquittal as innocent.

                The Honourable Supreme Court did not accept the plea of the Addl. Solicitor General to reverse to death penalty against the main accused Dara Singh as it is not one of 'the rarest of rare case' since in such cases where there  is no direct evidence the sentence of life imprisonment is adequate to meet the ends of justice. The Court relied on its earlier judgments in Bachan Singh vs. State of Punjab (AIR 1980 SC 898), Machhi Singh vs. State of Punjab (1983) 3 SCC 470, Kehar  Singh vs. State (Delhi Administration) (1988) 3 SCC 309, and held in its judgment dated the 21^st January 2011, "It is clear from the above decisions that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the punishment of death should be resorted to only for the rarest of rare cases. Whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the Court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity." As there was a clear background of resentment due to large scale conversion of poor tribes in the area of operation by Graham Staines and the prosecution had rounded up those who were opposed to such conversion spree, the honourable Court, quoting Mahatma Gandhi and the former President of India Shri M.K.Narayanan  emphasized on the need for religious tolerance by mutual respect for each other's faith held that "It is undisputed that there is no justification for interfering in someone's belief by way of 'use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better than the other."

Immediately after the pronouncement of the judgment on 21^st January this year at about 10.45 a.m. almost all the press as well as the electronic media gave wide coverage to the historic judgment in the country and abroad, as it was most awaited decision after the Court had concluded hearing on 16^th of December 2010 followed by winter vacation for the Court. The verdict was bound to have mixed reaction whole over the country as the subject matter is controversial and concerning the freedom of faith and conscience which is very dear to each individual. Many Hindus thought that the materials on which 11 persons were acquitted; its benefit could have been extended also to the other two accused whose conviction has been upheld by the Court. Similarly, many Christians reacted and expressed their degree of religious intolerance by criticizing the Court's verdict in various comments ventilated through the internet. Most conspicuous was N.Ram's 'The Hindu' daily from Chennai Dated 23^rd January 2011, that carried a news item advocating expunction of certain remarks of the Court, claimed to be representing the views of editors of leading newspapers and that of the civil society on the conversion background in the verdict and observations of the Court emphasizing on the need for greater degree of religious tolerance that is necessary for the national unity. This was the most positive observation of the Court in favour of unity in diversity, the hallmark of India. N.Ram, the Chief Editor of 'The Hindu', the English daily from Chennai, being a recent convert to Christianity poses to be more Christian than Pope himself. Should he be aggrieved by the verdict in a case to which he was not a party, he could have resorted to legal remedies available in the statute book by filing a petition for expunging those observations. But the question is, should the Supreme Court react to such comments in absence of any petition supported by an affidavit before it praying for expunction or 'review'. Instead of taking note of such reactions the highest Court was expected to protect the established norms of procedural justice. That apart any such act amounts to contempt of the Court and the Court should perhaps draw up contempt proceedings for having voiced criticism in public without resorting to the judicial process available to the aggrieved. Because once the judgment is delivered in an open Court, it becomes functus officio and ceases to change its views except to correct clerical or arithmetical mistakes. There is a clear injunction under Rule 3 of Order XIII of the Supreme Court Rules, 1966 that once a judgement is pronounced in the open Court, it shall not be altered or added to. The relevant provision says, "Subject to the provision contained in Order XL of these Rules, a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not after wards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission." The Order XL referred to above is the power of 'Review' of its own decision only on the basis of a petition by the aggrieved party to the case. The Court has held in an earlier decision that "Power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect", {(1971) 3 SCC 844}.

 In another landmark decision the Supreme Court held that "Any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests :- (i) that the passage complained of is wholly irrelevant and unjustifiable; (ii) that its retention on the records will cause serious harm to the persons to whom it refers; (iii) that its expunction will not affect the reasons for the judgment or the order." {(2001) 3 SCC 54}. But for effecting expunction, there must first be a petition before the Court.  

But surprisingly, the Supreme Court in the Graham Staines murder case, after pronouncing the final judgment on the 21^st January 2011, listed the matter again for direction in the supplementary cause list circulated the previous evening, without any notice to the lawyers of the accused or the counsels for the prosecution. There was neither any petition by the CBI nor by the defense lawyer to that effect. Obviously, everyone was surprised and was keenly watching as to what would happen on 25^th January when the matter was listed for direction. The Court expunged one complete sentence at Para 43, that suggested the intention behind the crime and added at its place, "However, more than 12 years has lapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paragraphs". At Para 47, the sentence regarding interference in someone's belief by way of 'use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better than the other, has been replaced by 'any means'. Expunction of the portion in the judgment pertaining to normal procedures adopted by the religious groups for conversion has virtually diluted the observation of the honourable Court. Has it been done in response to the news item carried in 'The Hindu' advocating for expunction, on behalf of 'civil society' and later with an apology next day in the same newspaper, it has been denied. Without any petition supported by an affidavit could the Court entertain such alterations and additions into a pronounced judgment?

It may be noted that the Court while resorting to such major alterations and additions has preferred not to disclose the compulsions which dictated them to resort to such an abrupt measure which has no sanction of law. Such unexplained conduct of the apex court raises eye brows and unfortunately places the highest court in the dock for answer to the citizens of this country. The guarded silence on part of the Court on the 25^th January while bringing about the additions and alterations in the pronounced judgment, ostensibly in reaction to the remark's by N.Ram published in The Hindu on Sunday, was too conspicuos that portends unhealthy signals for the future. The institution of judiciary seems to have buckled under pressure from extraneous and extra-constitutional entities. It presages serious threat to Indian democracy, where, in the name of 'open soceity' our Courts are showing extra liberalism to foreign powers undermining national self-esteem and sovereign dignity. Let us not be oblivious of the fact that the powers of the Judiciary do not only emanate from the Constitutional provisions but also from the trust it enjoys among the citizenry of the country. The Nation still looks at the highest Court, for justice and direction when the entire nation is grappled with calculated misinformation, misgovernance, misrule, injustice and rampant corruption at every walk of public life. The institution of the Judiciary is the last hope of the people to protect democracy and the rule of law in the country. Betrayal on this count would pave the way for anarchy. It reminds the reader of one of the salutary statements of Harold J.Laski, "Eternal vigilance is the price for liberty". The Nation has to remain vigilant to protect the freedom of its citizens. Even the judiciary is accountable to the law and ultimately to the people, who are sovereign in our system of limited government.    

                                                                       ( The author can be contacted at ashoksahu53@yahoo.com )

Sign Online Petition for recall of Governor of Karnataka

Dear Friend,

     As you are aware, the Governor of Karnataka Sri Hans Raj Bharadwaj has been continuously troubling the Government of Karnataka since the day he stepped into our soil. He has been constantly harassing the Ministers, troubling them on every small matter and needlessly creating issues to halt the smooth administration and functioning of the Government machinery. His recent action of sanctioning the prosecution of the Hon'ble Chief Minister of Karnataka without any concrete evidence and proof has been the last nail in the coffin beyond which his actions have become intolerable to the citizens of the state. Keeping this in mind, BJP has lodged a strong protest with the Hon'ble President of India to recall the Governor immediately so that peace and development can continue in the state.

   In this regard, BJP Karnataka Information Technology (IT) Cell (www.bjpkaritcell.org) has initiated a strong online campaign to ensure that the Governor is recalled by the Central Government as early as possible. Please sign our online petition addressed to the Hon'ble President of India requesting the immediate recall of the Governor. To sign the online petition, please visit the below link

http://www.ipetitions.com/petition/removehansrajbharadwaj

   It takes only a few seconds of your time to sign this petition and after we receive your signatures, we shall forward this petition to the Hon'ble President through the proper channels. This is an important issue which needs to be addressed ASAP otherwise the state would continue to suffer from the Governor's misdeeds. Kindly sign the petition positively and also forward this mail to your other contacts so that they also can participate in this online campaign and support us. Please join your hands together with us on this noble initiative and with all your continued support, we shall be able to get rid of the nagging issues and concentrate on the development of the state.

Thanks in advance

Thanks,

Chandrakanth

Contact Us – itcell.bjpkar@bjp.org