WHOSE AMICUS IS Harish Salve?

Can the renowned lawyer do justice to the 2002 Gujarat riot victims while referring business deals to the Narendra Modi government? Tehelka exclusive expose.

Legal eagle Harish Salve has a an enviable clutch of corporate clients

The Special Investigation Team that was formed by the Supreme Court to reinvestigate the Godhra riot cases has long since failed its mandate. It has been unsuccessful in nailing the senior functionaries of the Gujarat government while being content with the cosmetic arraigning of a few inspectors and VHP members with the sole exception of the arrest of BJP MLA Mayaben Kodnani.

It has been left to Zakia Jafri, the 72-year old widow of former Congress MP Ehsan Jafri — who was butchered by a riotous Hindu mob — and a few human rights activists to doggedly pursue the riot cases in the Supreme Court.

Senior Supreme Court lawyer Harish Salve has been the amicus curiae — in simple words, friend of the court — in the petition which resulted in the re-investigation of nine major Gujarat riot cases including the massacres of Naroda Goan, Naroda Patiya and Gulberg Society in Ahmedabad where more than 200 Muslim men, women and children were hacked and burnt to death.

In India, while handling cases of extreme public interest, the courts have often appointed senior advocates with impeccable integrity as amicus curiae. The job of an amicus is to assist the court with objective and impartial analysis so that justice is served and public interest prevails.

In his capacity as an amicus for the past eight years, Salve has been assisting the court in finding the truth of the Gujarat riots. It was Salve who, along with the counsel of the Gujarat government, finalised the names of the police officers who were appointed SIT members.

Read the entire article at Tehelka's Website.

Supreme Court Quashes Thomas Appointment as CVC

Source : Indlaw

The Supreme Court today quashed the appointment of Mr P J Thomas as Central Vigilance Commissioner (CVC) as non est in the eyes of law.

A bench comprising Chief Justice S H Kapadia, Justices K S Radhakrishnan and Swatanter Kumar also disapproved the approach of the three-member selection panel comprising Prime Minister Mammohan Singh, Union Home Minister P Chidambaram and leader of opposition in Lok Sabha Sushma Swaraj and directed that in future the dissenting member of the panel will give reasons in writing and if the majority of the members disagree with the opinion of the dissenting member, it will also give reasons in writing. 

The apex court also ruled that in future the selection panel/High Powered Committee (HPC) will take an informed decision regarding the antecedents of the selected candidate and the choice of the candidate at the time of empanelment of the candidate shall not be confined only to civil servant/bureaucrat. 

The apex court ruled that in the present case the HPC has failed to take into consideration the notings of DoPT (Department of Personnel and Training) during 2000-2004 which recommended imposition of penalty on Thomas.

The apex court also declared CVC as 'integrity institution' and held that impeccable integrity of the candidate selected as head of the top anti-corruption statutory body must be taken into consideration. 

The apex court ruled that the recommendation of the HPC dated December 3,2010 in selecting Thomas as the CVC is illegal and therefore the appointment made on the basis of such recommendation is non est (non existent) in the eyes of law and therefore the appointment also goes and is quashed. 

The apex court cited the functioning of top anti-corruption bodies in countries like US, UK, Australia, Hong Kong etc where such integrity institutions and the appointment of the post of CVC is made. 

In India it is a constitutional post and CVC has to decide and oversee the investigation in corruption cases against public servant and therefore impeccable integrity is a must.


Find the copy of the Judgment here.

Supreme Court Reserves Judgment on Euthanasia Plea

Source : Indlaw

The Supreme Court today reserved its judgement in a landmark case on a petition filed by nurse Aruna Ramachandra Shanbaug who is in coma for the last 37 years after being raped on November 27, 1973, seeking permission to end her life as a mercy killing. 

A bench comprising Justices Markandey Katju and Gyan Sudha Misra reserved the judgement after hearing the parties. 

Attorney General G E Vahanvati appearing for the Centre opposed the plea of Ms Pinki Virani who claiming to be the next friend of the victim is seeking permission for euthanasia meaning mercy killing. 

Mr Vahanvati submitted before the court that Aruna Shanbaug has the right to live in her present state and her present condition does not justify terminating her life by withdrawing hydration/food/medical support. Such omissions will be cruel, inhuman and intolerable and such type of so called mercy killing is unknown to Indian law and is also contrary to law. 

The AG also submitted before the court that if such mercy killing is allowed it will be contrary to law and all efforts put in by batches after batches of nurses of KEM hospital, Mumbai, for the last 37 years, will be undermined and it will lead to disheartenment and large scale disillusionment among the nurses. Mr Vahanvati also questioned the locus of Ms Virani.

Aruna was strangled with a dog chain to immobilise her by the rapist Sohanlal who has already served seven years imprisonment. Aruna, who is bedridden for the last 37 years, is presently 63. 

The hospital is also opposed to the petitioner and counsel for the hospital today submitted before the court that the hospital is not fed up or tired of looking after her and she did not have even a single bed sore for the last 37 years. 

Senior counsel Shekhar Naphade, however, submitted before the court that the victim has been in vegetative state for the last 37 years and has no chance of coming out of her present state and therefore she cannot be denied right to die with dignity. 

The apex court had earlier refused permission to a 19-year-old mentally challenged woman to get her pregnancy terminated even when the medical board had recommended the termination of pregnancy as the would-be-mother cannot understand the concept of pregnancy and she is not capable of providing requisite care to the small baby. 

The Supreme Court is expected to lay down guidelines on the issue of right to die when the life has virtually become an endless burden without any hope of revival.

Power of 'Pardon' under Article 161 of the Constitution : The Law

Justice Singhvi

The Supreme Court in Narayan Dutt & Ors. v State of Punjab, has examined the scope and powers of a State Governor to pardon an accused under Article 161 of the Constitution. The Hon'ble court while examining various authorities on the issue held as under;

18. Article 161 of the Constitution of India confers on the Governor of a State the right to grant pardons, remissions, reprieves or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

19. The nature and scope of the power of pardon and the extent of judicial review over such power has come up for consideration in a catena of cases and has now virtually crystallised into a rule of law.

20. In Maru Ram & Ors. v. Union of India & Ors. [AIR 1980 SC 2147] Krishna Iyer J, speaking for the Constitution Bench, held that although the power under Articles 72 and 161 were very wide, it could not "run riot". His Lordship held that no legal power can run unruly like John Gilpin on the horse, but "must keep sensibly to a steady course". According to His Lordship, "all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power." (para 62 at p. 2170)

21. The Court further observed that "Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to pardon, grant of remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism." The Constitution Bench also observed "the Government is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal... Every action of the Executive Government must be informed with reason and should be free from arbitrariness... it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege... From this angle, even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of Presidential power." (para 63 at p. 2170-71)

22. The Bench cautioned that political vendetta or party favoritism should not be the basis of exercising such power. It also advised that the government should make rules for its own guidance in the exercise of the pardon power to exclude the vice of discrimination.

23. In conclusion, the Bench observed that considerations for exercise of power under Articles 72/161 "may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise." (para 72 at p. 2175)

24. In the subsequent Constitution Bench decision in Kehar Singh & Anr. v. Union of India & Anr. [AIR 1989 SC 653] on the same question, this Court quoted the United States Supreme Court in Ex Parte Williams Wells, (1854-57) 15 Law Ed 421, on its power to scrutinize the exercise of this power and pointed out that it was to be used "particularly when the circumstances of any case disclosed such uncertainties as made it doubtful if there should have been a conviction of the criminal, or when they are such as to show that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice." The Bench also quoted Chief Justice Taft in Ex parte Philip Grossman, (1924) 267 US 87), wherein the learned Chief Justice opined: "Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law. The administration of justice by the Courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the Courts power to ameliorate or avoid particular criminal judgments..." (para 8 at p. 658)

25. The Bench having regard to the nature of the power of the President under Article 72, stated that the President under Article 72 could scrutinize the evidence on record of a criminal case and come to a different conclusion from that of the court. In doing so, "the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it." The Bench quoted with approval the formulations of Sutherland, J. in U.S. v. Benz, (1930) 75 Law Ed 354, wherein the learned Judge held: "The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment."

26. In Kehar Singh (supra) this Court observed that the order of the President under Article 72 could not be subjected to judicial review on merits except within the strict limitations defined in Maru Ram (supra). Therefore, on the ambit of judicial review, Kehar Singh (supra) concurred with Maru Ram (supra).

27. In Swaran Singh v. State of U.P. & Ors. [AIR 1998 SC 2026], a three-Judge Bench held that "this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it." (para 12 at p. 2028)

28. Again in Satpal & Anr. v. State of Haryana & Ors. [AIR 2000 SC 1702], this Court held that the power of granting pardon under Article 161 was very wide and did not contain any limitation as to the time and occasion on which and the circumstances under which it was to be exercised. Since the power is a constitutional power, it is amenable to judicial review on the following grounds:

a. If the Governor had been found to have exercised the power himself without being advised by the government,

b. If the Governor transgressed his jurisdiction in exercising the said power,

c. If the Governor had passed the order without applying his mind,

d. The order of the Governor was mala fide, or;

e. The order of the Governor was passed on some extraneous considerations.

29. Further, if the Governor was not aware of general considerations such as period of sentence undergone by the convict, his conduct and behaviour while undergoing sentence and other such material considerations, it would make the order of the Governor under Article 161 arbitrary and irrational.

30. The Constitution Bench in Bikas Chatterjee v. Union of India & Ors. [(2004) 7 SCC 634] reiterated the same principles on the extent of judicial review as laid down in Maru Ram (supra) and Satpal (supra).

31. In Epuru Sudhakar & Anr. v. Government of A.P. & Ors. [AIR 2006 SC 3385] this Court observed that it was well settled that the exercise or non-exercise of the power of pardon by the President or Governor was not immune from judicial review and limited judicial review was available in certain cases.

32. Justice Pasayat, delivering the judgment, summed up the ground on which judicial review of an order passed under Articles 72 and 161 could be undertaken. Those grounds are: (a) that the order has been passed without application of mind;

(b) that the order is malafide;

(c) that the order has been passed on extraneous or wholly irrelevant considerations;

(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness.

33. Justice Kapadia (as His Lordship then was) in his concurring opinion, observed that "granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or set aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendant's guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter." (para 64 at p. 3402)

34. His Lordship further added that "the exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case... Rule of law should be the overarching constitutional justification for judicial review." (para 65, 67 at p. 3402)

35. In that case, an order of remission had been passed, inter alia, on an inference that the accused was not involved in the murder, was falsely implicated and false witnesses had been produced. This Court held such reasons to be irrelevant and held that the order of remission was bad.

36. From the abovementioned judicial decisions it is clear that there is limited scope of judicial review on the exercise of power by the Governor under Article 161.