Judicial Tirade Against Terror
A new anti-terror regime was ushered in, with two recent Supreme Court judgments stripping those slapped with terror charges or convicted under anti-terror laws, of the benefits of socially-beneficial and benevolent laws.The judgments - one, holding that a minor facing terror charges was not entitled to the benefit of the juvenile law and the second ruling that terror convicts were not entitled to cite delay in execution as a ground for commutation of sentence - seem to have woven in public sentiments with law. But judge-made laws are fraught with the drawbacks that laws formulated without exhaustive debate can have.
True, judges only interpret laws. But the exposition of a purported ambiguity in an existing legislation takes the shape of a judge-made law, which is binding as a precedent. A bench presided over by Justice P Sathasivam, while disposing of appeals in the 1993 Bombay blasts case, held that a minor facing charges under TADA would not be entitled to claim the benefits of the Juvenile Justice (Care and Protection of Children) Act. Though both the laws have non-obstante clauses giving overriding effect over other laws, the court concluded that in between the two, TADA would have precedence over the juvenile law.The court took note of the gravity of the crime and stated that by no stretch of imagination could the accused "qualify as a child in need of care and protection". With this, the court unwittingly joined the ongoing public debate on the need for a rethink on the blanket exemption to juveniles from being subjected to the ordinary course of law, irrespective of the nature and gravity of the crime.
The judgment clears trial of juveniles with terrorists, but gives rise to fresh ambiguities on the scope for further exceptions and on the point of sentence. Can a juvenile be hanged? The existing juvenile law was introduced in 2000 to give effect to the provisions of the UN Convention on the Rights of the Child. Article 37 of the convention, ratified by India in 1992, bars death sentence and life imprisonment for persons below 18.
Ideally, the debate, which kicked off after the Delhi gang rape incident, should have reached a conclusive end in Parliament. Or at least now, Parliament should take over and put an end to all ambiguities.
In the other verdict delivered subsequently, a bench presided over by Justice G S Singhvi stated that apex court verdicts on commutation of death sentence on the ground of delay would not be applicable to terrorists. Distinguishing the case of terrorists merely on account of the gravity of the crime, the court said delay as a ground for commutation of the sentence of death into life imprisonment "cannot be invoked where a person is convicted for offence under TADA or similar statutes".
The bench got into law-making while dismissing a petition by Devinder Pal Singh Bhullar seeking commutation of his death sentence on the ground that his clemency petition was decided by the President after 8 years.
The claim could well have been dismissed, but foreclosing the rights of all terrorists' amounts to going beyond what the law is and deciding what the law ought to be. Noting that fundamental rights had been given non-derogable status under the Constitution, the apex court held in a case last year, that it was not within the competence of the judiciary to "create exceptions and limitations on the availability of these rights". No doubt, there is a need to deal with terrorism with a heavy hand, but the judiciary should resist the temptation of donning the role of the legislature and carving out such exceptions, which touch upon the basic rights of individuals.
More so, when there have always been special laws with stringent provisions to deal with cases of terror. The idea behind terrorism is to fight against an established system and create anarchy. To go beyond the law to deal with the problem would, thus, amount to fighting a lost battle.
The utt effect
Filmstar Sanjay Dutt (in pic) was granted four more weeks to surrender to enable him to honour his professional commitments. This was followed by a four-week extension to seven other convicts in the 1993 Bombay blasts case.
The Supreme Court's order came on separate applications giving different reasons for the relief, but the relief was the same. In some cases, the relief of four weeks had no nexus to the purpose for which the exemption from surrender was sought.
One Altaf Ali Syed had sought extension as his wife was expecting a baby on May 24. But he was granted an extension of only four weeks. As were others who cited health grounds or old age as grounds for extension. The four-week extension would hardly have any meaning to Altaf or to another convict, who had brain tumour.
The Supreme Court's order came on separate applications giving different reasons for the relief, but the relief was the same. In some cases, the relief of four weeks had no nexus to the purpose for which the exemption from surrender was sought.
One Altaf Ali Syed had sought extension as his wife was expecting a baby on May 24. But he was granted an extension of only four weeks. As were others who cited health grounds or old age as grounds for extension. The four-week extension would hardly have any meaning to Altaf or to another convict, who had brain tumour.
The humble Nawab hangs his gown
The judge, who upheld the hanging of Ajmal Kasab, delivered judgments on Haj and gave the landmark ruling in the Novartis patent case, retired last week. Lawyers and litigants would recall Justice Aftab Alam as a judge with a humble outlook, but Chief Justice Altamas Kabir pointed to a little known side of his personality.
Justice Kabir recalled a visit to Patna High Court, where he was to meet the Nawab Judge. And when he entered his chamber, Justice Alam was in his royal avatar sniffing a cigar. The revelation about the man, who donned a very humble avatar on the bench, surprised everyone. Justice Kabir went on to add that Justice Alam loved to sing sufi songs and ghazals. This was not all. Justice Alam was a very active member of the team of judges in the traditional cricket match between lawyers and judges. As far as his skills as a judge was concerned, farewell speeches could not be complete without reference to his judgments, including the latest one on Novartis. Justice Alam, in his farewell speech, did not hesitate to question the tradition of the court, to consider the senior judge on the same bench as the presiding judge. " A judge of the top most court should be second to none", the Nawab judge said.
Justice Kabir recalled a visit to Patna High Court, where he was to meet the Nawab Judge. And when he entered his chamber, Justice Alam was in his royal avatar sniffing a cigar. The revelation about the man, who donned a very humble avatar on the bench, surprised everyone. Justice Kabir went on to add that Justice Alam loved to sing sufi songs and ghazals. This was not all. Justice Alam was a very active member of the team of judges in the traditional cricket match between lawyers and judges. As far as his skills as a judge was concerned, farewell speeches could not be complete without reference to his judgments, including the latest one on Novartis. Justice Alam, in his farewell speech, did not hesitate to question the tradition of the court, to consider the senior judge on the same bench as the presiding judge. " A judge of the top most court should be second to none", the Nawab judge said.
Courtesy: India Today
