GAMBLE IN LITIGATION

The SC finds that petitioners do not always come with clean hands

Most sane people prefer to stay away from the painfully slow and overcrowded courts. It is a misfortune to be dragged to a court, especially when one is an ordinary law-abiding citizen. Theancient Chineseswore at a foe, “let you be hauled to a court even if you’re innocent!”

However, there is a deviant species who attempt to gamble withlaw suits. They use the system to settle political scores or subdue business rivals. TheSupreme Courtspotted this class two years ago in the caseDalip Singh vs State ofUttar Pradeshand remarked: “In the last 40 years, a new breed of litigants has cropped up. The quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter in falsehood, misrepresentation and suppression of facts. Those who attempt to pollute the stream of justice or touch the pure fountain of justice with tainted hands are not entitled to any relief.”

The Supreme Court decided a few cases of this variety last week and even imprisoned one petitioner who lacked bona fides. One petition was moved by vocal politician Amar Singh. It was his constant whine that his political opponents in power are tapping his phones and his private conversations with friends in high places and celebrities were aired in the media. Therefore, he moved the Supreme Court invoking his fundamental right to privacy. But the court rejected his petition, calling it “an attempt to mislead the court on the basis of frivolous allegations and by suppression of material facts.”

Chastising those who move courts with such dubious motives, the judgment said: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions.” Since the Amar Singh petition was vague, not conforming to the rules of procedure and riddled with inconsistencies, the court did not go into his main grievance — infringement of privacy.

The only positive outcome of the case was the court’s request to the government to “frame certain statutory guidelines to prevent interception of telephone conversation on unauthorised requests.” In this case, Reliance Infocom acted on a forged request from the police.

In another judgment,Kalyaneshwari vsUnion of India,the court deprecated misuse ofpublic interest litigationto wage business battles. A writ petition was filed in theGujarat High Courtseeking the closure of asbestos units, alleging that the material was harmful to humans. The high court dismissed it, stating that the petition was filed at the behest of rival industrial groups that wanted to push their products as substitute for asbestos. Undaunted, a similar petition was then moved in the Supreme Court. The plea was not only dismissed, but the person who mooted it was asked to pay cost of Rs 1 lakh and sit in the court for a whole day.

The judgment said: “The petition lacks bona fide and in fact was instituted at the behest of a rival industrial group, which was interested in banning of the activity of mining and manufacturing of asbestos. A definite attempt was made by it to secure a ban on these activities with the ultimate intention of increasing the demand of cast and ductile iron products as they are some of the suitable substitute for asbestos. Thus it was litigation initiated with ulterior motive of causing industrial imbalance and financial loss to the industry of asbestos through the process of court.”

The court declared that it was its duty in such circumstances to punish the petitioners exercising its power under the Contempt of Courts Act. The court must “ensure that such unscrupulous and undesirable public interest litigation be not instituted in courts of law so as to waste the valuable time of the courts as well as preserve the faith of the public in the justice delivery system.”

This variety of cases is not entirely new. They come with apparently laudable motives, but if the veil is removed they expose the real intentions. In the case,Subhash Kumar vs State of Bihar(1991), the complaint was that effluents released from theTata Iron and Steel Company’s washeries were not only contaminating the Bokaro river but also ruining agricultural land. Later the court found that the petitioner was an influential businessman who was buying the slurry from the company for several years. His private interest was hurt when the company refused to provide him more slurry. Hence his public interest litigation. Such instances have occurred despite the stringent reaction of the courts at all levels and guidelines set by theapex courtin some judgments.

SC FOR DEATH PENALTY FOR COPS IN FAKE ENCOUNTER CASES

Fake encounter killings by cops are nothing but "cold-blooded brutal murder" which should be treated as the "rarest of rare" offence and police personnel responsible for it should be awarded death sentence, the Supreme Court has ruled.

Dismissing a bunch of bail applications by a group of police officials who allegedly acted as contract killers, a bench of justices Markandeya Katju and Gyan Sudha Mishra said in a judgement that fake encounters were cold-blooded murders by the men in khaki.

"We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases.

"Fake encounters are nothing but cold-blooded, brutal murder by persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties," Justice Katju writing the judgement said.

The apex court said it would not brook any excuse from policemen that they were acting at the behest of their superior officers.

"We warn policemen that they will not be excused for committing murder in the name of ’encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials, the Nazi war criminals took the plea that ’orders are orders’ but nevertheless they were hanged.

"If a policeman is given an illegal order by any superior to do a fake ’encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder and, if found guilty, sentenced to death. The ’encounter’ philosophy is a criminal philosophy and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ’encounter’ and get away with it should know that the gallows await them, the bench said.

The apex court passed the judgement while dismissing the appeal filed by head constable Prakash Kadam and other police personnel challenging their bail cancellation by the Bombay High Court.

The prosecution had argued that so-called encounter specialist Pradip Sharma, Inspector Pradip Suryawanshi, Kadam and about a dozen policemen abducted a real estate operator Ramnaryan Gupta on November 11, 2006 and shot him dead in a fake encounter.

It was alleged that the accused policemen resorted to the crime by acting as contract killers for main accused Janardan Bhange, an estranged colleague of the deceased.

Bhanged is alleged to have utilised the services of the police personnel following his differences with the deceased in real estate operations.

SC CANT REFUSE INFO IF PLEA FILED UNDER RTI, SAYS CIC

Commission Overturns Its Earlier Decision On Judicial Matters

The Central Information Commission (CIC) has overturned its own decision and ruled that the Supreme Court cannot deny information on judicial matters if an applicant has asked for it under the Right to Information Act.

As of now, information disclosure related to a person’s own case could be applied to the Supreme Court under the Right to Information Act. But in case the information related to judicial matters of a third party, the Supreme Court had ruled that application must be made under court rules. Rule 2 of theSCRules says the applicant must establish “good cause’’ before disclosure is made, which according to the CIC goes against the Right to Information Act.In his order, information commissioner Shailesh Gandhi said that he disagreed with former chief information commissioner Wajahat Habibullah’s decision.

His order said, “This bench further rules that all citizens have the right to access information under Section 3 of the Right to Information Act and PIOs shall provide the information sought to the citizens, subject always to the provisions of the Right to Information Act only.’’He added, “It is the citizen’s prerogative to decide under which mechanism, that is under the method prescribed by the public authority or the RTI Act, he would like to obtain the information.’’

The decision came after Gurgaon resident R S Mishra had asked for information related to letters he had written to the Supreme Court. The apex court had denied the information on the argument that theSChad a specific provision by which information was furnished under Order XII of the Supreme Court Rules and hence, information relating to judicial matters could be provided only under that provision. The Supreme Court PIO further argued that since the then chief information commissioner had upheld this contention, their arguments before this commission were already covered under the said decisions.

2-WHEELERS MAKERS MUST GIVE HELMETS

The Supreme Court has made it mandatory for two-wheeler manufacturers to supply helmets that conform to the Bureau of India Standards while selling scooters and motorbikes to customers. The helmets will be sold through the dealers. A bench headed by Justice G S Singhvi on Wednesday dismissed a petition filed by Society of Indian Automobile Manufacturers (SIAM) that had sought reversal of a Delhi High Court judgment giving the direction.

The bench said helmets were for the safety of customers and declined to entertain the plea that the order would force customers to have a collection of helmets.

“The high court judgment obliges a customer to purchase a helmet whenever he buys a new two-wheeler. This is despite the fact whether he possesses one or not,” contended senior advocate P.S. Patwalia, appearing for SIAM. He added the direction amounted to legislation.

To this, the bench said in a lighter vein: “There is no harm in having more than one helmet. It comes handy in situations such as taking part in protests, dharnas or even defending oneself during a fight with wife.”

The court added it was improper for it to interfere in an order that was meant for a public cause.

The Delhi High Court had on July 30, 2009, directed two-wheeler manufacturers to start selling helmets along with the vehicles. The direction came on a public interest litigation that asked the court to give directions to the companies to comply with one of the provisions of Motor Vehicles Act that mandates supply of helmets.

DUMP EGO WHEN HC MOVES PROBE TO CBI: SC TO STATES

The Supreme Court said the loud protests heard from states when a high court shifts probe of a case from the police to CBI had more to do with hurt ego than the alibi that it affected the morale of police force.

"Once the HC gives a view that the matter be investigated by the CBI in exercise of its constitutional powers, all objections of the state must come to an end," said a Bench comprising Justices Aftab Alam and R M Lodha while dismissing the Kerala government’s plea against the HC’s September 11, 2008 order asking CBI to probe a murder case. The state had challenged the HC order on the ground that it adversely affected the morale of the state police.

Least amused by the argument, the Bench said: "There are not one but dozen reports on what adversely affects the morale of the police. You will not find any of them mentioning HC orders as being an adverse factor. The morale of the police is adversely affected by actions of other kind which we do not want to say here."

Clearly, the Bench was hinting at the political interference in the affairs of the police noted in all the reports of committees appointed since the 1970s to suggest ways and means for reforms in the police force.

Having beaten the state’s argument hollow, the Bench dug in further saying: "If investigation is to be handed over to CBI, we don’t understand why should it be taken as an ego clash. Ultimately your interest is also to catch the culprit."

But, Kerala counsel and senior advocate L N Rao said it had become a trend with the HC to transfer cases to CBI from the state police as 30 cases were ordered to be investigated by the central agency in last year itself.

The Bench did not agree. "The courts do not order CBI probe as a matter of habit. This is not a routine power exercised by the HCs. Even statistically we find that several persons come to HCs with this request, but in hardly 1% or 2% cases did the HCs oblige," the Bench added.

Rao contended that in a recent judgment, the SC had held that the HCs could not routinely transfer cases to CBI. The case in hand related to the murder of one Mohammad Fazal by activists of CPM, the ruling party in the state. Rao argued that the probe could not be termed unfair or partial.

But the Bench said that the Kerala HC pointed out several lapses in theinvestigation justifying its decision to ask CBI to take up the probe. "Once the court exercises its constitutional power, the buck must stop there," the Bench said.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND FOR DIVORCE

The Cabinet will clear amendments to the Hindu Marriage Act on Thursday by including “irretrievable breakdown of marriage” as ground for divorce.

Under Section 13 of the Hindu Marriages Act, which provides for grant of divorce, a decree of divorces for separation can be given only on the grounds such as “cruelty”, “adultery” and “desertion”.

The lack of this provision was recently pointed out by the Supreme Court while hearing a petition filed by Union Power Minister Sushilkumar Shinde’s daughter, Smriti Shinde. A 2006 judgement, too, had voiced the need for legislative intervention on the issue.

“We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties,” the apex court had said in the 2006 order.

In the 2006 case, one Manju Sharma had “resolved to live in agony only to make life a miserable hell” for the husband. In a creative interpretation, the court treated the wife’s refusal to let go of the husband despite the irretrievable breakdown as an instance of mental cruelty on her part. “This type of adamant and callous behaviour leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty,” the court said while granting divorce on the ground of “irretrievable breakdown”.

In its 71st report submitted in 1978, the Law Commission had recommended introduction of breakdown of marriage as a ground for divorce in addition to “fault” grounds in the divorce law. In 1981, a Bill was introduced to give effect to “irretrievable breakdown” as a ground for divorce, but it did not find acceptance as some were of the view that unscrupulous husband would desert their wives by taking advantage of this provision.