Rule of Law jolted in Cricketers case

Rule of Law in rude jolt-Cricketers Case at Delhi In a sensational twist to the saga of Sreesanth and 22 others facing certain sections of the Indian Penal Code before the Chief Judicial Magistrate, Delhi, MOCCA was added, which resulted in transfer of the case automatically to the Sessions. While the bail petitions of Sreesanth was to be heard by the Judicial First Class Magistrate, the case was made more forceful by applying the provisions of MOCCA passed by the Maharashtra Assembly which also was made effective in the state of Delhi from January 2002 by appropriate notification. No other state, it need to be emphasized, has made provisions of MOCCA applicable within their territorial jurisdiction. The Police officer attached to the Delhi Police made a comment that there was enough proof of evidence with them to impose sections that were there in MOCCA applicable to the accused. Just before the bail application was to be heard, without even informing the trial court in advance, the Police presumably, because two accused facing similar charges in Mumbai were let on bail, applied stringent sections of MOCCA and adding them to First Information Report already filed, to prevent Sreesanth to get bail. Obviously, it is the view of the Delhi police, if Sections under MOCCA were invoked the accused cannot be released on bail. Supreme Court in State of Maharashtra Vs Bharat Shanti Lal Shah and Others (SC 2009) struck down as unconstitutional Sec 21(5) of MOCCA stating that “The provision of denying his right to seek bail is not even in consonance with the object sought to be achieved by the Act, on the face of provisions, this is an excessive restriction”. It concurred with the High Court of Bombay judgment in the Criminal Writ petition 1738/2002 and 110/2003 filed by Bharat Shah, stating that restrictions on the power to grant bail should not be pushed too far, and it should be left to the discretion of the Court to arrive at a just conclusion based on the omissions and commissions of the crime and the evidence available before him. If the Court is satisfied that a person can be granted bail, power to grant bail rests on him”. Delhi Police officer was off the mark in his knowledge of MOCCA provisions in the light of clear SC ruling in two cases. The Delhi Police Officer further said that they had irrefutable evidence to link the accused to organized crime rackets, even though their acts fall under cheating, and criminal breach of trust, if proved beyond doubt. The statement attributed to the Police officer that let the accused prove they are innocent is full of flaw, as the SC had ruled unambiguously that in a “criminal case, the onus lies on the prosecution to prove affirmatively the guilt of the person. Further, action of one accused cannot be used as evidence against another”, as done by the Delhi Police. This is against the fundamental Rule of Law. As per MOCCA, the cricketers have abeted, facilitated, organized crime, and accumulated unaccounted wealth. MOCCA seeks to prevent to control disruptive activities. But they need evidence of nexus of the accused with the commission of crime.SC has held that “conspiracy is not a term of act. It has a definite connotation. In any criminal activity, mens rea (criminal intention) is a necessary ingredient for commission of a Crime under any Law including MOCCA. ‘Statement of objects and Reasons background of MOCCA should be looked into under the doctrine of pith and substance’ (SC Appeal 523 of 2005 dated 7 April 2005 Justices NS Hegde, B Singh, S Sinha)(Ranjitsing Brahmajeetsingh Sharma Vs State of Maharastra)(SCC 294) In AIR 1975 SC 1975), SC held that abettor should have intentionally aided in the commission of the Crime. Mere proof that the crime charged could not have been committed intrerpositively of alleged abet or enough compliance with the requirements of Sec 107 of the Indian penal Code read with sub section ‘2’ of Sec 3 of MOCCA. Criminal Appeal 2008 before SC State of Maharashtra Vs Bharat Shanti Lal Shah & Others (Bench: Altamas Kabir and Markandey Kunju) where constitutional validity of 2(d), e,f,Sec 3 and Sec 4 which was held unconstitutional vis-à-vis Art 14 and 21 of the Indian Constitution upheld by Bombay High Court was challenged. SC held that Sec 21(5) was unconstitutional- refusal for grant of bail. A statute, it is a trite, should not be interpreted in such a manner as would lead to absurdity, SC had warned. For want of a nail, a battle was lost, there is a saying. Cricketers who took money to bowl in a particular over as pre-determined by bookies during IPL matches were sought to be depicted as having league with notorious anti social elements is farfetched. Srisanth’s cricketing career is as good as over. The timing of his arrest leads to suspicion. That his arrest was made in such a hurry, spontaneously, without caring to recover all the articles which were in his room, further aggravates the suspicions. Srisanth did not have peers both in the cricketing administration and in the political high ups is self evident that he alone is made a victim of this unsavory saga. Delhi Police have a design. Time alone will prove what it is. The ever ebullient channels, vying with each other as espousing public cause, have imposed their stoic silence over the clamping of the charges by the Delhi Police on the cricket trio at Delhi.

Bundhs and hartals are unconstitutional?

The Kerala High Court had banned bundhs which were observed by different political parties and different organizations to air their defiance to some act or situation, or some issue affecting their lives in social, economic, political, or in their religious beliefs or rights. This deterrent act of the Court came in the wake of innumerable difficulties faced by the Common man against the tyranny of a few, who foisted a bundh on citizens. This was a weapon that should be sparingly used, as in a democratic country like India, “Freedom of Expression” was a paramount virtue and a fundamental right. The Principle of natural justice is to be applied with the Rule of Law and not in isolation.

The political parties had called the step draconian and challenged the ruling in the Supreme Court. Supreme Court upheld the judgment of the High Court and observed that Freedom of Speech, movement and Expression, did not mean when one’s exercise of this right should collide with the same Rights of the others. In the wake of the Judgment, they began to call for ‘hartals’ (which is a synonym for bundh). However, they termed call for hartals (changed bundh to hartal) which was total more due to fear even though they were not supportive of the reason for the ‘hartal’. The Governments, who are supposed to uphold the Rule of Law, and protect the citizens and allow their free movement without let or hindrance, if they themselves became the Law breakers, then who will respect the Law? People who make Laws should respect the very same Law, if they expect the people to obey the same, in letter and spirit.

Recently, based on a judgment of the Kerala High Court banning roadside meetings, the Government in power in Kerala and some of the important leaders of the Party held open roadside meetings and condemned the judgment and criticized the judges who had held roadside meetings illegal as it breached the Principle of Natural Justice. The Government contended that the Court should have heard the State before passing such a ban order. The Chief Minister in a report said that they were only commenting on the Judgment, which was fair, and decedent and was not aimed at criticizing judiciary. The CM also recalled that in a democracy, the Legislature, Executive and Judiciary, held equal powers under the Constitution, and worked for the welfare of the people. The Kerala Government, he was quoted as saying, had the high regard for judiciary and the judiciary should reciprocate the same attitude.

The first bench of the Kerala High Court told the Advocate General that it was disturbed by the remarks made by the various leaders of the Ruling party against the judgment of the Court banning wayside rallies and meetings. The bench recalled that hartal or bundh by whatever name it was called was banned by the High Court and the Supreme Court had put its stamp of approval. So any hartal called by anybody was violative and did not have legal sanctity, and therefore, illegal. An illegal act committed by anybody how so ever high, cannot be legally tenable. Further, leaders bemoaning the judiciary and their comments receiving wide publicity are a cause of concern, the bench noted. A Judge of the Supreme Court (K K Mathew Memorial Law Lecture series on the ‘Role of Judiciary in Democratic India’) came down heavily on people who used intolerant language and attributed bias against the Judiciary was tantamount to degrading the Constitution pillars. “Judgments were not above criticism and any judgment could be subject to constructive criticism at an academic and intellectual level. Judges who passed judgments cannot be subjected to unfair criticism, abuse and ridicule just because one did not agree with the judgment. The Constitution provides for revision of judgments and the aggrieved parties should take recourse to such avenues, felt the Judge of the Supreme Court in the course of his address.

The Chief Minister, Kerala is said to have stated that when Indira Gandhi was unseated by a Judge of theAllahad High Court on the basis of election petition by late Shri Raj Narain, the then Government declared internal emergency. According to the Chief Minister, Shri V R Krishna Iyer, the Judge who unseated her was attacked by Rajiv Gandhi’s (later corrected t as Sanjiv Gandhi’s) goons. It was Justice Jagan Mohan Sinha, of the Allahabad High Court who delivered the judgment on the election petition Raj Narain Vs Indira Gandhi. The matter went on appeal to the Supreme Court which was on a vacation. Shri V R Krishna Iyer, who was the vacation judge in the Supreme Court, heard the arguments of Nani Palkhiwala and Shanti Bushan and stayed the judgment of the Allahabad High Court with the condition that she shall not vote, shall not sign the Lok Sabha attendance register and she would not be entitled to any sitting fees. There was no attack on Justice V R Krishna Iyer’s residence as indicated by the CM. As a matter of fact, if Justice V R Krishna Iyer had not stayed the Allahabad High Court judgment, Ms Gandhi had no other option but to resign and the Emergency proclamation would not have come about..

Coming back to the Court’s judgment, the Court had upheld the movement of any citizen against collective mob blocking the free movement of that individual by holding a street rally. Your freedom and my freedom end at the tip of our noses. To block one’s freedom in the name of natural justice is against the fundamental principle of Law. If a person breaks the Law, he is prosecuted by the State. If the State breaks the Law, there is only the Law of the Jungle.

It is suggested that the three reservoirs of the Constitution exercise maximum restraint, and work in tandem so as to preserve, protect Indian democracy.