Wednesday, June 06, 2007

SC'S INTERVENTION IN GUJJAR VIOLENCE: A FEW QUESTIONS

The Supreme Court's suo motu notice to the DGPs of four States on what action they have taken or proposed to take against the perpetrators of the violence, triggered by the Gujjars' bandh is interesting. This is perhaps the first time that the Supreme Court has taken suo motu notice when there was large scale destruction of public and private property, due to the call for bandh by any group of people. There can be no two opinions that the organisers of the bandh must be asked to pay for the resultant losses, whether the bandh is peaceful or not. There can be a debate on whether bandh is an effective medium to register a protest, or even whether the protestors have the right to force the non-protestors to join the bandh, by creating unfavourable circumstances like road blockade etc. The Gujjars' bandh was anticipated. Therefore, why the DGPs did not take preventive action, to stop destruction of property and disruption of normal life could have been the right question which should have been posed by the Court, which would have helped the country to face similar situations in future. Therefore, the Court's question to the DGPs - on what action was taken or why no action was taken - may not really bring the desired results. Action could be taken only if the police knows who are the culprits, and this requires investigation, and the setting in motion of a legal process.
The urgency shown by the Court stems from the fact that it was disturbed by the images shown on the television by many channels. On the destruction of public and private property, it needs to be asked whether the channels identified the culprits, whether the culprits could be identified by virtue of the TV clips. If it is possible, no doubt action must be taken against them.
I would not be surprised if a proper investigation reveals that the violence was to some extent abetted by these channels, who were vying with one another to sensationalise the issue. The repeated manner they were showing the 'violent' clips during the week-long disturbances even made the I&B Minister so disturbed to call these channels and advise them to follow some code of behaviour, so that they don't unwittingly contribute to the spread of violence. A serious discussion in Parliament on any issue makes no news; but pandemonium does. Similarly, a peaceful protest makes no news to these channels; a violent protest does. Since you cannot show killings, show destruction of property, encourage and abet a peaceful crowd to do that in order to gain publicity on T.V. is the in-house unwritten code for many of the television journalists. "As the electronic media shows, the offenders feel that they have done some heroic or laudable thing because they show their beaming faces when the TV camera is focused on them," the court in its brief order recorded. Therefore, in its anxiety to ensure justice to the victims of this national shame, the Court should not close its eyes to the shame within the media.
Having said that, certain disturbing questions are bound to be asked about the merits of Court's intervention in this case. No doubt, the Court was moved by a genuine concern that justice be meted out to the victims of violence. But, only on June 4, the Vacation Bench rejected a plea to intervene in the violence instigated against the Dera sect in Punjab. The plea of the petitioners was for a direction to the authorities to ensure protection of the lives and properties of the followers of the sect, and the sect itself in the wake of the threats from the hardline Sikh groups. But the Court rejected the plea saying only State could handle religious conflicts. The Court said it was a religious issue on which no writ mandamus could be issued. It also stated that the tension arising out of the situation was purely a law and order problem that had to be essentially handled by the government agencies.
Reacting to the plea of Dera Sacha Sauda counsel Rajiv Dhawan that the deras faced a threat of closure, apparently from Akal Takhat, the Bench said, "Sensitisation of the issue should not involve the court… it is not the court’s job to decide where the BSF or Army should be deployed… for that, you have to approach the government."
As Dhawan said the problem was not confined to the jurisdiction of Punjab and Haryana High Court but some other states like Rajasthan, Uttar Pradesh and Jammu region of Jammu and Kashmir were also involved, the Bench said, "The genesis of the problem is essentially Punjab."
Personally, I am not at all convinced by the distinction sought to be drawn by the Court between the violence resulting from the Gujjars' demand and the one following the threat to the Dera sect in Punjab. If the Court could intervene in the former, they could do so in the latter also with justification.
Update: In the comments section, Mr.Harish points out the inconsistencies in the Court's intervention. Just one instance would suffice to show why I find Justice Pasayat's judicial philosophy, with utmost respect to him, wholly puzzling. In the AIIMS Doctors' strike during the height of their anti-reservation stir, he had extracted a promise from the ASG that the striking medicos would not be deprived of their salary during the strike period, even though they were not entitled to it in accordance with the principle, no work no pay, as a court-mediated solution to end their stir. The striking doctors caused immense chaos to the health services during the strike period, still the court was keen to condone their action, and even reward them for their strike. The contrast with Gujjars needs no explanation.

11 comments:

Harish said...

I agree with your questioning the rationale for distinguishing between the Gujjar Violence and the plea made by the Dera. If you take the reasoning forward, when in fact, should the Court intervene? What about the violence indulged by the lawyers in UP (beating up and shaming an individual who had an argument with a lawyer who was his relative!) or the beating up of the Nithari accused in court premises? Are these not "eligbile" for court intervention? In my view, the Court should be more concerned about these instances. This leads to the larger question of whether the Court needs to intervene in all instances of administrative failure? Is that the court's role? Has the Court even allowed for the law to take its course? If the Court's decision to intervene is based on the whims of certain judges or on the influence of the media, is it really an upholder of the rule of law?

V.Venkatesan said...

Dear Mr.Harish, I think the Court is becoming Delhi-centric, and that seems to be the criterion to decide when and where to intervene.

Vivek Reddy said...

I wonder whether the Court has the power to take up any issue (other than contempt of court) suo motu. Although the Indian Constitution does not have the "case or controversey" requirement like the American Constitution, it also does not have any provision where the Court can take action without anyone approaching the Courts. Article 32(1) only speaks of the right to approach the Supreme Court. May be Article 32(2), but that would be quite a stretch!

Dilip said...

I think Mr.Vivek Reddy’s point that the Supreme Court cannot take up cases suo motu is correct. I am aware of no case from that time where suo motu action was initiated. The powers of the Supreme Court of India were not defined in detail simply because the Drafting Committee, composed of eminent lawyers of the time assumed that the courts would continue to function in the same manner as in British India with their role properly defined and limited by the weight of history, precedent and tradition. Also, because judges were appointed by the executive branch and the supremacy of parliament was well-accepted, they did not foresee the post-Keshavananda/post-Second Judges case system that is currently operative where the system has no functional mechanism for course correction. Besides, the judiciary saw its primary mission as a limited one of resolving questions of statutory interpretation rather than of solving the day-to-day difficulties of society.

The court’s attempts to cherry pick matters for suo motu action is revealing, not of any coherent philosophy, but of its failure to even notice the absence of one. Apart from being Delhi-centric, J. Pasayat’s pet causes and comments also reflect many of the prejudices of current urban media centered discourse – against caste-based reservation in general and claims related to it. His contradictory positions on the doctors’ strike and the Gujjars’ bandh make sense from this perspective.

Rampal of the Bailey said...

Perhaps the bench received a letter regarding the issue. In the rip roarin' Bhagwati days that was good enough to take up any matter and issue plenary directions. I agree that the Court's attitude discloses an inconsistency which is undesirable in a court of last resort.

As regards the Dera issue, when the matter was mentioned, Justice Pasayat expressed his concern that intervention in the matter would lay him open to further criticism by the Government (referring undoubtedly to the Reservation and Forest cases). Perhaps he thought that intervention in the Gujjar controversy would not attract any criticism from the Central Government, given that Rajasthan is currently under a BJP Government. However, notices have been issued to four States, including Delhi.

New reports indicate that the Bench was particularly concerned with the way life in the Capital was affected. Delhi-centricness definitely seems to be a trend.

Lastly, as regards the doctors salaries issue, I believe the doctors were claiming pay for days when they were legitimately on leave. Justice Pasayat had himself denied them pay for any of the other days. It was in this context that the undertaking from the ASG was sought, given and later breached.

Anonymous said...

What the role of state when such violent protests take place and
normal life is affected. Should
all citizens bear the brunt of these protests passively. Whether the SC has powers, or, not the
fact that it has taken cognizance
of such protests is a welcome sign.
The irony or call it a tragedy, if you want, is that,as the political
class refuses to address such issues ,a citizen is tempted
to think that SC will do something
about them.'Peaceful' state supported bandhs also affect normal lives of citizens. Should
citizens suffer in silence always.
The current case can be delhi-centric but the issues are not.
ravi srinivas

V.Venkatesan said...

I thank Mr.Vivek Reddy, Mr.Dilip, and Mr.Rampal for joining the discussion. As always, their comments have enriched the debate on the issue. I have just two comments/queries. Did not the SC initiate PIL on the basis of newspaper reports suo motu earlier? Therefore, is it correct to view the current intervention as unprecedented, and having no basis in law and the Constitution, as Mr.Vivek Reddy has suggested?
Secondly, I am sure that J.Pasayat persuaded the Govt. to agree to pay the medicos during the strike period. When the Government refused, J.Pasayat reminded the Government about its earlier promise, when the agitation was withdrawn, that the Govt. would not take any punitive action against striking doctors, once they resumed duty. This promise "not to take punitive action" was interpreted by J.Pasayat as the Govt.' s assurance to pay salaries to striking doctors. The ASG must have then argued that these are different things: taking punitive action would mean imposing some punishment for the indiscipline, caused by their strike. Obviously, being punitive would not include the implementation of a universally recognised principle of no-work no-pay.

V.Venkatesan said...

Dear RS,
Thanks for the views. But as I pointed out, the SC has not intervened in order to ensure that preventive steps are taken; only preventive steps can ensure that innocent citizens do not suffer due to bandhs. Here, I think they have jumped the gun, by holding that prima facie no action has been taken after the violence, against the perpetrators. The case against the Gujjar leader in Rajasthan has been booked on May 30, although I don't think it has any merits. How he could be held responsible if the mob somewhere turns violent and kills cops is beyond my comprehension. Did the British book any case against Mahatma Gandhi for the Chowri Chowra incident which turned violent, resulting in the killing of policemen. I am not comparing the Gujjar leader with Mahatma Gandhi, but the legal parallels are striking. The Gujjar leader was not part of the crowd which killed the cops, he did not issue any directive or call to kill the cops, in fact he called off the stir because it was going out of control, still the conspiracy case has been booked and being pursued, because the SC is after the state DGP. If this is sustained, then no peaceful protest is possible, because there is always the likelihood of it resulting in violence, and destruction of property. Of course, precautions need to be taken, and punitive action taken against those who actually indulged in violence, unless there is sufficient proof that the leader had any direct links with the violent mob, or if there was any incitement. Many of these television and newspaper reports on violence carrying pictures, described the violent mob as Gujjars - which I think was unfair. When did we earlier describe the violent mob with their caste names? Did they carry any caste labels on their head? They could have been just any thugs, who wanted to take advantage of the situation of lawlessness. Unfortunately, the Supreme Court was carried away by these reports. I understand the Court's anxiety that the law must take its course against those who indulged in violence; but it should not turn out as a witch-hunt against the whole community, especially when the State requires a healing touch after inter-caste violence.

Harish said...

I agree with Vivek Reddy regarding the Court's suo moto intervention. There is no such power in the Constitution itself. Precedents have arisen because of interpretation. And with each case of intervention, the Court's powers have widened. The relief and joy that society may get because of one intervention does not either justify or support a wrong interpretation of Constitutional provisions. In my view, neither Article 32 or the greatly misused Article 142 (of complete justice fame) gives the Supreme Court, unfettered jurisdiction that it seeks to exercise. Unfortunately however, everybody including the Court, lawyers and society have been, in my view, carried away with the Court's powers regarding interventions, due to our perception of an inept, inefficient and corrupt administration. This has led a jurisdiction based on exasperation (borrowing from Pratap Bhanu Mehta). But such momentary relief can, and has, led to weakening of institutions. But who is to tell the Court that they do not have the authority to do certain things? I dont think too many Senior Advocates have the courage to do so today and scholars fear contempt proceedings.

Vivek Reddy said...

Mr. Venkatesan, the Court in the eigties and the nineties did take note of newspaper reports (particularly in enviromental matters), but there is a crucial distinction. There was a petitioner who raised this issue before the Court by a petition and in the petition he relied on the newspaper reports. That's different from a judge taking suo motu cognizance.

Dilip said...

Dear Mr. Venkatesan,

You are right to point out that the court has initiated action suo motu before – this trend began in the 1990s and has continued since. As mentioned before, that power did not exist before at the time of framing of the constitution nor has any legislation been enacted since that time granting it that power. A priori, restraint was exercised based on the well-accepted tradition that, as Chief Justice Roberts put it, “if it is not necessary to decide, it is necessary not to decide”. The departure from that view greatly increased after 1992 when the PIL rules were amended and I believe, taking cognizance suo motu is a newly minted phenomenon that has taken hold since then.

In recent times, the Supreme Court decides several thousand cases every year; on any given question, a variety of views and opinions have been expressed, some correct and others, either debatable or patently erroneous. Thus there are many cases where it is possible to cite a precedent no matter what position one takes – even the outrageous order in the Jharkhand Assembly case had a precedent in the Jagadambika Pal case in 1998. The question therefore is not so much whether an action is unprecedented but whether the precedent(s) has(have) any binding value. If a larger bench has decided the question, that verdict would of course be binding at least in principle but otherwise, the judge should ask some hard questions to determine the answer: (a) most importantly, did the previous opinion lay down a standard or principle that has led to or holds a reasonable prospect of leading to a stable body of law? (b) Was the case correctly decided? Is the view a reasonable one that is at least consistent with the plain meaning of the text of the statute? Answers to these questions may not resolve problems every time but they should guide the judge to at least eliminate the egregiously erroneous ones.
Taking cognizance based only on a newspaper report certainly fails the test of question (a) (I do not believe question (b) arises here since the court has never considered this question before barring an abortive effort to frame rules for PIL cases in the mid-1990s) for on what basis is a judge to decide which report or as Mr. Harish points out, which instance of administrative failure merits intervention? The other grievous error of suo motu intervention is that the action is often initiated without any prior deliberation of the procedural proprieties involved; an aggrieved party, usually a government, approaches the court after the fact to protest against the order or some part of it by which time, the court, having already committed itself to the effort, finds it difficult to back down or reverse course. The latter reason alone is sufficient to argue that such intervention is improper and should never be resorted to.

J. Pasayat appears to have no qualms about engaging in procedural impropriety. He has written before that “Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice and not to be treated as mandatory.” (The Hindu, Dec 26th, 2005) – in other words, that procedural law is no more than a guideline, to be applied when convenient and dispensed with when it conflicts with personal notions of what constitutes justice in a given case. With judges having such a mindset, notions of judicial restraint are likely to remain, sadly, restricted to the realm of academic possibility.