Judicial activism and enthusiasm right from lower
courts to the Supreme Court while delivering judgements have pushed
the democracy and its legislatures and executive at the wit's end as
well as loss to public exchequeres and as well as peoples' diminishing
faiths in the judicial system!.Before I deliberate recent judgements
of the Patna High Court, and lower courts ignoring the serious points
of law and falacies in judgements, I must visit the the few overreach
action of the Supreme Court in delivering judgements in the recent
past.
At least some recent examples like Supreme Court pronuouncements
of judgements in the interlinking of rivers and remission to Vodafone
of over Rs 12000 crore as tax liabilities on the basis of an equally
unprecedented transaction between Vodafone and Hutch, with a clear
nexus to the sale of latter's assets in India. Like wise the Supreme
Court judgement on interlinking of rivers is said to be direct
interferences on the exective powers of the State.The old debate on
the inter-linking of river idea revived by a February 27 directives of
the Supreme Court of India to the central government to set up a
special committee to ensure its implementation as priority.To many,
this sounded like a clear case of judicial overreach,, one setting a
wrong precedent of the judiciary entering the executive domain!
The judgement of the Supreme Court , comprising the Chief Justice of India
S H Kapadia, Justices Swantra Kumar and K S Radhakrishnan (Chief
Justice Kapadia and Justice Swantra Kumar delivering one and Justice
Radhakrishnan authoring second), in Vodafone case has recent ly set
aside the Mumbai high court judgement in the case, which had directed
with ample of reasons and law points the Vodafone to pay tax liability
of Rs 1200 crore.
In the back drop of Vodafone judgement by theSupreme Court, I want to
mention a judgement of the the then Supremecourt Judge O.Chinnappa
Reddy in the MCdowell and Company Limited vrscommercial taxes officer
(1985). Justice Reddy had referred , " We now
live in welfare state whose finamcial need, if backed by the law, have
to be respected and met. We must recognise that there is behind
taxation laws as much moral sanctions as behind any other welfare
legislation and it is pretence to say that avoidance of taxation in
not unethical and that stands it stands on no law less moral plane
than honest payment of taxations=======================." In my
opoinion tax revenue are main sources of government's development
initiatives currently when the government is in the grip of serious
fund crunch, depriving citizens the right of to an adequate means of
livelihood and to lessen the inequalities in income. Thus Supreme
Court judgement in the Vodafone case on January 20, 2012 is an
instance of lapses on the part of our judicial procedures and ignoring
the interest of the country.
There are many other things behind the
scene judgement of the Supreme court in between! Fingers are being
raised on the partiality of judges in delivering judgement in the
Vodafone case.. Chief Justice Kapadia's son Hoshnar Kapadia was with Ernst
and Young-a firm which advised Vodafone on its tax dispute after
Vodafone's deal in 2007. He had joined E&Y India and not E&Y UK. It is
also pointed out that that income tax depatrtment used the E&Y UK's
report as evidence against Vodafione.
Prof Mohan Gopal, Director of
the Rajiv Gandhi Institute of for Contemporary Studies (RGICS), New
Delhi, has voiced concern over the likely implication of the Vodafone
judgement for governance citing several well placed law points. Gopal,
however, said that about the references of son of Chief justice
Kapadia must be avoided at this stage in linking the judgement as
chief justice Kapadia has a well deserved and hard-earned reputation
for the highest integrity. On the other hand Prashant Bhushan senior
advocate of the Supreme Court has also questioned the Judgement of SC
in Vodafone case. Bhushan has put many facts about the integrity of
judges right from lower courts to apex court!
More over the Supreme
Court judgement of on interlinking of rivers has also raised many
eyebrows in the country. Interlinking of rivers will have many ill
effects including environment , huge cost of over five lakh crore on
the project and many hicuups by different state governments over their
agreement in interlinking rivers of the country. Many of the legal
experts have pointed out that judgements apart from usurping executive
powers of the state, has also ignored the facts of many reports and
diocuments of the past pros and cons in interlinking rivers.
Intrestingly the SC judgement has itself pronounced reservations on
interlinking of rivers by different state governments including Bihar,
Karnataka, Punjab, Assam, Sikkim and many states like Kerala, Assam,
Sikkim have have raised protests over interlinking of rivers on many
grounds. Significantly , the cost, which has been analyesd in the SC
judgement on the project varies from Rs 4,44,331.20 crores and Rs 4,
34, 667 crore at the 2003-2004 price. Now it would escalates in over
several crores if the project is implemented for inter-linking of
rivers.
It appears "dadagiri " of Supreme Court to implement the
project and constitution of special committee, bypassing the union and
state governments over the issues,, many legal experts commented. The
former secretary of the union ministry of Water resources Ramaswami R
Iyer has criticised the interlinking of rivers. Iyer said, " it is
pity that union government has not made its reservation clear to the
Supreme Court. -if it would have stated opposition, the judgement
would not have come in such manner. But it has not been done by the
government because of political compulsion." Iyer has referred the
reports of many committees including of K L Rao came up with
Ganga-Cauvery linkk canal projects in 1972, Captain Dastur's Garland
Canal project etc.
The Centre for Science and Environment (CSE), New
Delhi, a leading environmental organisation,, has also opposed the
idea of interlinking of rivers and has said, " this is delicious idea
where water from flooded river basins can be divereted to dry river
basins through canals and storage. While it may sound really good on
paper, it is technically implausible."
Since I will write further
detailed story on all these issues later on . But taking into account
the at least two recent judgements of the Supreme Court, I want to
mention a few facts of judicial activism and enthusiasm in Bihar also.
First I will deliberate the recent judgement of the Patna High court
on Bathani Tola massacres of Dalits, which is well known facts. A
division bench of the Patna High court, comprising Justice Navneet
Praad Singh and Justivce ashwani Kumar has set aside the judgement of
the Arrah additional judge judgement, which had awarded capital
punishments to three and life imprisionment to 20 accused persons on
the ground of lack of evidence. The case of murdering 21 dalit persons
including children and women in Bathani tola village under Bhojpur
district.by forward caste people is well known. It was in the
knowledge of evertybody.
The Patna high court, which had found fault
in evidences, should have instead of acquting all the accused persons
, would have duirected the state government and its police for
reinvestigation the case. But the court had failed and in extra
enthusiasm, acquited all the accused persons, allegedly involved in
the ghastly murders of youths!
Another case in point is the recent
judgement of the fast track-court of Judge Ram Darash for acquiting
influential persons including Maharjganj MP Umashankar Singh of the
Rashtriya Janata Dal and his son Jitendra Swami in a murder case when
the matter of transfer of the case from the Ram Darsh's court was
already pending in the Patna High court. Earlier the court of Darash
had rejected the transfer plea. Thereafter, an appeal was filed in the
Patna High court and it was under process of hearing. In the maentime
, Fast track Court-1 Ram darsh has pronounced the judgement, acquiting
the MP and his son. The Patna High court , however, took cognizance
in the matter and directed the Judge to file a show-cause
It appears a clear case of miscarriage of justice by the lower
court! As regards other such judgemnents right from the district
courts to the Patna hgh courts are very common in Bihar.
courts to the Supreme Court while delivering judgements have pushed
the democracy and its legislatures and executive at the wit's end as
well as loss to public exchequeres and as well as peoples' diminishing
faiths in the judicial system!.Before I deliberate recent judgements
of the Patna High Court, and lower courts ignoring the serious points
of law and falacies in judgements, I must visit the the few overreach
action of the Supreme Court in delivering judgements in the recent
past.
At least some recent examples like Supreme Court pronuouncements
of judgements in the interlinking of rivers and remission to Vodafone
of over Rs 12000 crore as tax liabilities on the basis of an equally
unprecedented transaction between Vodafone and Hutch, with a clear
nexus to the sale of latter's assets in India. Like wise the Supreme
Court judgement on interlinking of rivers is said to be direct
interferences on the exective powers of the State.The old debate on
the inter-linking of river idea revived by a February 27 directives of
the Supreme Court of India to the central government to set up a
special committee to ensure its implementation as priority.To many,
this sounded like a clear case of judicial overreach,, one setting a
wrong precedent of the judiciary entering the executive domain!
The judgement of the Supreme Court , comprising the Chief Justice of India
S H Kapadia, Justices Swantra Kumar and K S Radhakrishnan (Chief
Justice Kapadia and Justice Swantra Kumar delivering one and Justice
Radhakrishnan authoring second), in Vodafone case has recent ly set
aside the Mumbai high court judgement in the case, which had directed
with ample of reasons and law points the Vodafone to pay tax liability
of Rs 1200 crore.
In the back drop of Vodafone judgement by theSupreme Court, I want to
mention a judgement of the the then Supremecourt Judge O.Chinnappa
Reddy in the MCdowell and Company Limited vrscommercial taxes officer
(1985). Justice Reddy had referred , " We now
live in welfare state whose finamcial need, if backed by the law, have
to be respected and met. We must recognise that there is behind
taxation laws as much moral sanctions as behind any other welfare
legislation and it is pretence to say that avoidance of taxation in
not unethical and that stands it stands on no law less moral plane
than honest payment of taxations=======================." In my
opoinion tax revenue are main sources of government's development
initiatives currently when the government is in the grip of serious
fund crunch, depriving citizens the right of to an adequate means of
livelihood and to lessen the inequalities in income. Thus Supreme
Court judgement in the Vodafone case on January 20, 2012 is an
instance of lapses on the part of our judicial procedures and ignoring
the interest of the country.
There are many other things behind the
scene judgement of the Supreme court in between! Fingers are being
raised on the partiality of judges in delivering judgement in the
Vodafone case.. Chief Justice Kapadia's son Hoshnar Kapadia was with Ernst
and Young-a firm which advised Vodafone on its tax dispute after
Vodafone's deal in 2007. He had joined E&Y India and not E&Y UK. It is
also pointed out that that income tax depatrtment used the E&Y UK's
report as evidence against Vodafione.
Prof Mohan Gopal, Director of
the Rajiv Gandhi Institute of for Contemporary Studies (RGICS), New
Delhi, has voiced concern over the likely implication of the Vodafone
judgement for governance citing several well placed law points. Gopal,
however, said that about the references of son of Chief justice
Kapadia must be avoided at this stage in linking the judgement as
chief justice Kapadia has a well deserved and hard-earned reputation
for the highest integrity. On the other hand Prashant Bhushan senior
advocate of the Supreme Court has also questioned the Judgement of SC
in Vodafone case. Bhushan has put many facts about the integrity of
judges right from lower courts to apex court!
More over the Supreme
Court judgement of on interlinking of rivers has also raised many
eyebrows in the country. Interlinking of rivers will have many ill
effects including environment , huge cost of over five lakh crore on
the project and many hicuups by different state governments over their
agreement in interlinking rivers of the country. Many of the legal
experts have pointed out that judgements apart from usurping executive
powers of the state, has also ignored the facts of many reports and
diocuments of the past pros and cons in interlinking rivers.
Intrestingly the SC judgement has itself pronounced reservations on
interlinking of rivers by different state governments including Bihar,
Karnataka, Punjab, Assam, Sikkim and many states like Kerala, Assam,
Sikkim have have raised protests over interlinking of rivers on many
grounds. Significantly , the cost, which has been analyesd in the SC
judgement on the project varies from Rs 4,44,331.20 crores and Rs 4,
34, 667 crore at the 2003-2004 price. Now it would escalates in over
several crores if the project is implemented for inter-linking of
rivers.
It appears "dadagiri " of Supreme Court to implement the
project and constitution of special committee, bypassing the union and
state governments over the issues,, many legal experts commented. The
former secretary of the union ministry of Water resources Ramaswami R
Iyer has criticised the interlinking of rivers. Iyer said, " it is
pity that union government has not made its reservation clear to the
Supreme Court. -if it would have stated opposition, the judgement
would not have come in such manner. But it has not been done by the
government because of political compulsion." Iyer has referred the
reports of many committees including of K L Rao came up with
Ganga-Cauvery linkk canal projects in 1972, Captain Dastur's Garland
Canal project etc.
The Centre for Science and Environment (CSE), New
Delhi, a leading environmental organisation,, has also opposed the
idea of interlinking of rivers and has said, " this is delicious idea
where water from flooded river basins can be divereted to dry river
basins through canals and storage. While it may sound really good on
paper, it is technically implausible."
Since I will write further
detailed story on all these issues later on . But taking into account
the at least two recent judgements of the Supreme Court, I want to
mention a few facts of judicial activism and enthusiasm in Bihar also.
First I will deliberate the recent judgement of the Patna High court
on Bathani Tola massacres of Dalits, which is well known facts. A
division bench of the Patna High court, comprising Justice Navneet
Praad Singh and Justivce ashwani Kumar has set aside the judgement of
the Arrah additional judge judgement, which had awarded capital
punishments to three and life imprisionment to 20 accused persons on
the ground of lack of evidence. The case of murdering 21 dalit persons
including children and women in Bathani tola village under Bhojpur
district.by forward caste people is well known. It was in the
knowledge of evertybody.
The Patna high court, which had found fault
in evidences, should have instead of acquting all the accused persons
, would have duirected the state government and its police for
reinvestigation the case. But the court had failed and in extra
enthusiasm, acquited all the accused persons, allegedly involved in
the ghastly murders of youths!
Another case in point is the recent
judgement of the fast track-court of Judge Ram Darash for acquiting
influential persons including Maharjganj MP Umashankar Singh of the
Rashtriya Janata Dal and his son Jitendra Swami in a murder case when
the matter of transfer of the case from the Ram Darsh's court was
already pending in the Patna High court. Earlier the court of Darash
had rejected the transfer plea. Thereafter, an appeal was filed in the
Patna High court and it was under process of hearing. In the maentime
, Fast track Court-1 Ram darsh has pronounced the judgement, acquiting
the MP and his son. The Patna High court , however, took cognizance
in the matter and directed the Judge to file a show-cause
It appears a clear case of miscarriage of justice by the lower
court! As regards other such judgemnents right from the district
courts to the Patna hgh courts are very common in Bihar.
Seriously the injustive live in all the world. I was reading and not is much different of my country. Thanks for share all this, Gos bless you always.
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