Governor immune from liability: High Court

Holding that under the Constitutional precincts the head of the State Executive i.e. the Governor is entitled to absolute immunity from legal actions for his executive functions, the Kerala High Court in a recently reported decision [D.B. Binu v. Governor, AIR 2011 Ker 5] set aside the contention of an advocate to bring about an action against the Governor alleging role in appointment of members of the Right to Information Commission.

The High Court referred to earlier decisions and in particular Article 361 of the Constitution of India which extends immunity to President (i.e. the Union Executive Head) and the Governor (i.e. the State Executive Head) for actions undertaken by them in exercise of the executive power. The High Court inter alia observed as under;

 6. As is clear from paragraph 4.11.36, the Sarkaria Commission noted that the powers and duties conferred on the Governor by a Statute fall in two distinct categories, namely those conferred on the Governor in his capacity as Governor and the other conferred on the Governor in his capacity not as Governor but in a different capacity such as that of Chancellor of a University under the relevant University Acts. The Sarkaria Commission categorically held that those powers conferred on the Governor to be performed by him in his capacity as Governor pertains to the office of the Governor as provided for under Article 154(1) and has to be exercised by him on ministerial advice in accordance with Article 163(1). The Commission further stated that by virtue of Article 361(1) of the Constitution of India, the Governor enjoys personal immunity in a Court for exercise by him of such functions. I am bound by the decision in Gopalakrishnan's case (supra), wherein the Division Bench categorically accepted the view of the Sarkaria Commission. I also note that the Division Bench has categorically approved the decision of the Madhya Pradesh High Court in S. C. Barat 's case (supra) therein. In paras. 5 and 6 of that decision, the Division Bench of the Madhya Pradesh High Court has held thus:

Taking Clause (1) first, it in plain terms gives complete immunity to the Governor in respect of the exercise and performance of the powers and duties of this office and for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity is not restricted during his term of the office but continues even after the Governor ceases to hold the office. It is thus personal. The extent of the immunity is to be found in the scope of the expression "the exercise and performance of the powers and duties of his office". On the very words of this expression, it is clear that the immunity is in respect of the exercise and performance of the powers and duties of the office of the Governor under the Constitution and for acts done thereunder and not merely in respect of the powers and duties under the Constitution of the office.

It is important to note the distinction between the powers and duties under the Constitution of the office of the Governor and the powers and duties of the office under the Constitution. Now, the "powers and duties of the office" embrace the powers of the Governor expressly conferred by the constitution as well as those conferred by any law or statutory rules. There are several articles in the consequent conferring certain powers on the Governor. To name some, Article 161 dealing with the power of the Governor to grant pardons, reprieves etc., Article 164 under which the Chief Minister is appointed by the Governor, Article 165 giving to the Governor the power to appoint the Advocate General, Article 166(3) giving to the Governor the power to make rules for the more convenient transaction of the business of the Government of the State, Article 192 empowering the Governor to decide questions as to disqualifications of members of the Legislature, Article 200 dealing with the Governor's assent to a bill passed by the Legislature, Article 213 concerning the power of the Governor to promulgate Ordinances, Article 309 giving to the Governor the power to make rules regulating the recruitment and conditions of service of persons serving the State, Article 316 which gives the Governor the power to appoint members of the State Public Service Commission. There are all powers expressly conferred by the Constitution. But besides these powers and duties of the office, there are some powers and duties of the. office which though not expressly provided by any article of the Constitution, result from the working of several articles in the Constitution.

(6) Under Article 154 the executive power of the State is vested in the Governor and is exercised by him either directly or through the officers subordinate to him according to the Constitution. Article 162 lays down that the executive power of the State shall extend to the matters with respect to which Legislature of the State has power to make laws. Under Article 166(1) all executive action of the Government has to be expressed to be taken in the name of the Governor. The Constitution confers powers on the State Legislature to make laws with respect to any of the matters enumerated in Lists II and III in the Seventh Schedule. The State Legislature is not prevented from conferring by law any functions on the Governor. The effect of all these provisions is that certain powers, duties and functions may be conferred on the Governor qua Governor under any Act or rules made thereunder.

The powers and duties conferred by such Acts and rules on the Governor qua Governor are "the powers and duties of his office". They are not conferred in so many words by any article of the Constitution, but they flow from the working of several articles of the Constitution. Such powers and duties when conferred on the Governor qua Governor are also exercised by him on the advice of the Council of Ministers except in so far as he is by or under the Constitution required to exercise his functions in his discretion. The action taken by the Governor is the executive action of the Government which is expressed in the name of the Governor. The protection given by Clause (1) of Article 361 covers the exercise and performance of the powers and duties conferred on the Governor qua Governor by any law or rules made under any law. That the personal immunity extends not only to the exercise of his functions by the Governor in his discretion but also to the exercise of his functions on the advice of the Council of Ministers becomes further clear by the second proviso to Article 361.

7. This decision also lays down the view that the immunity under Article 361(1) of the Constitution of India is attracted to statutory functions exercised by the Governor in his capacity as Governor. In view of the fact that the said view has been accepted by the Division Bench of this Court, the same becomes the law as laid down by the Division Bench of this Court also.

Have a look at the decision.

Quashing of criminal proceedings : The principles revisited

The Constitution of India confers powers on the Constitutional courts to quash pending criminal proceedings. These powers are of wide magnitude as they imply the exoneration of the accused even before the proceedings have been culminated by way of trial. The Supreme Court in a recent decision [State of Maharashtra v. Arun Gulab Gawali], noting the amplitude of these powers and the consequences which they carry revisited the law on the issue to hold that these powers should be exercised sparingly and should not have an effect of frustrating the judicial process.

The Supreme Court delineated the law in the following terms;

12. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can ‘soft-pedal the course of justice' at a crucial stage of investigation/ proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as ‘Cr.P.C.’) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of West Bengal & Ors. Vs. Swapan Kumar Guha & Ors. AIR 1982 SC 949; M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. AIR 1998 SC 128; G. Sagar Suri & Anr. Vs. State of U.P. & Ors. AIR 2000 SC 754; and Ajay Mitra Vs. State of M.P. & Ors. AIR 2003 SC 1069).

13. In R.P. Kapur Vs. State of Punjab AIR 1960 SC 866, this Court laid down the following principles:- 

(I) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; 

(II) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;

(III) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and

(IV) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

14. In State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors. AIR 1992 SC 604, this Court laid down the similar guidelines for exercising the inherent power, giving types of cases where the Court may exercise its inherent power to quash the criminal proceedings. However, the types of cases mentioned therein do not constitute an exhaustive list, rather the cases are merely illustrative.

15. In State of Karnataka Vs. L.Muniswamy & Ors. AIR 1977 SC 1489, this Court held as under:-

“In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.”

16. The inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at this stage there should be a meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. (Vide Mrs. Dhanalakshmi Vs. R. Prasanna Kumar & Ors. AIR 1990 SC 494; Ganesh Narayan Hegde Vs. S. Bangarappa & Ors. (1995) 4 SCC 41; and M/s Zandu Pharmaceutical Works Ltd. & Ors. Vs. Md. Sharaful Haque & Ors. AIR 2005 SC 9).

17. In State of Orissa & Anr. Vs. Saroj Kumar Sahoo (2005) 13 SCC 540, it has been held that probabilities of the prosecution version can not be analysed at this stage. Likewise the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: 

“It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with.”

18. In B.S. Joshi & Ors. Vs. State of Haryana & Anr. AIR 2003 SC 1386, this Court held that inherent power must be utilised with the sole purpose of preventing the abuse of the process of the court or to otherwise serve the ends of justice. In exercise of inherent powers, proper scrutiny of facts and circumstances of the case concerned are absolutely imperative. 

19. In Madhavrao Jiwaji Rao Scindia & Anr. Vs. Sambhajirao Chandrojirao Angre & Ors. AIR 1988 SC 709, this court held as under:-

“The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

20. This Court, while reconsidering the Judgment in Madhavrao Jiwaji Rao Scindia (supra), consistently observed that where matters are also of civil nature i.e. matrimonial, family disputes, etc., the Court may consider “special facts”, “special features” and quash the criminal proceedings to encourage genuine settlement of disputes between the parties. 

21. The said Judgment was reconsidered and explained by this Court in State of Bihar & Anr. Vs. Shri P.P. Sharma & Anr. AIR 1991 SC 1260, as under:

“Madhaorao J. Scindhia v. Sambhaji Rao AIR 1988 SC 709, also does not help the respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of Trust property to favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120B I.P.C. which the High Court refused to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offences were made out. On those facts and also due to the relation of the settler, the mother, the appellant and his wife, as the son and daughter-in-law, this Court interfered and allowed the appeal………Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power under Section 482 or Article 226 to quash the proceedings or the charge-sheet.”

22. In Alpic Finance Ltd. Vs. P. Sadasivan & Anr. AIR 2001 SC 1226, this Court explained the ratio of the Judgment in Madhavrao Jiwaji Rao Scindia (supra), that law laid down therein would only apply where it is a question of a civil wrong, which may or may not amount to a criminal offence. Madhavrao Jiwaji Rao Scindia (supra) was the case involving a trust where proceedings were initiated by some of the trustees against other trustees. This Court, after coming to the conclusion, that the dispute was predominantly civil in nature and that the parties were willing to compromise, quashed the proceedings. 

23. In M.N.Damani Vs. S.K. Sinha & Ors. AIR 2001 SC 2037, this Court again explained the Judgment in Madhavrao Jiwaji Rao Scindia (supra) in a similar manner. 

24. Thus, the judgment in Madhavrao Jiwaji Rao Scindia (supra) does not lay down a law of universal application. Even as per the law laid down therein the court can not examine the facts/evidence etc. in every case to find out as to whether there is sufficient material on the basis of which the case would end in conviction. The ratio of the said Judgment is applicable in limited cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial, property and family disputes etc. etc. The Superior Courts have been given inherent powers to prevent the abuse of the process of Court where the Court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is not necessary for the court to hold a fullfledged inquiry or to appreciate the evidence, collected by the Investigating Agency, if any to find out whether the case would end in conviction or acquittal.

Have a look at the decision.

Judges not to act like clerks: High Court

Holding that the Judges were not to act like clerks and thus could not refuse to act when the prosecution did not act diligently, the Delhi High Court in a recent decision [Directorate of Revenue Intelligence v. Pawan Kumar] set aside the order passed by the lower court declaring that the judges had sufficient powers under the law "to summon additional evidence suo moto and has also power to question the witnesses and if he finds that investigation was mis-directed". The High Court particularly noted the refusal to exercise the powers on flimsy grounds.

The High Court inter alia observed as under;

4. It is apparent from the complaint made before the ACMM that accused and certain custom officers were hand in glove with each-other in order to deprive the state exchequer of the duties. The custom officers were also made accused in the case. If learned ACMM considers some witnesses had been left out, instead of using its power of summoning additional witnesses under Section 311 Cr. P.C. during trial and to see that the culprit are punished, the learned ACMM seemed to have acted more like a Clerk than like a Judge and was happy in discharging everybody on the ground that there was no investigation on the point how the goods were allegedly exported, who were the officers posted at Customs Port at the relevant time and what goods were exported. 

5. No doubt, we follow adversorial system of prosecuting criminals but a Judge is not supposed to act only as an umpire to blow whistle. A Judge has certain duties assigned to him under Cr. P.C. to ensure that those who commit crime do not go scot free on mere technical grounds. A Judge has power to summon additional evidence suo moto and has also power to question the witnesses and if he finds that investigation was mis-directed, the Judge can still ensure that necessary witnesses are summoned in the Court and examined. The learned ACMM has been passing similar order almost in every cases and instead of using his judicial powers under various provisions of Cr. P.C., has been washing off his hands by discharging the accused persons on flimsy grounds. 

6. The issue of sanction in another similar order of ACMM was considered by this Court in its judgment dated 25th October, 2010 delivered in the Crl. Rev. P. No. 305 of 2010, Directorate of Revenue Intelligence Vs. Mohd. Anwar and the order was set aside. The order dated 1st June, 2010 passed by learned ACMM being patently illegal and contrary to record is hereby set aside.

Have a look at the decision.

Death for Surinder Koli: Supreme Court affirms

In an earlier post we had updated our readers of the conviction by the Allahabad High Court of Surinder Koli and the award of death penalty in the infamous Nithari case relating to the kidnapping and murder of several small children in Nithari (near Nodia in Uttar Pradesh). The Supreme Court recently dismissed the appeal filed against this decision to affirm the death sentence granted to the accused.

Holding that the barbaric killings committed by the accused and the action of having eaten the body parts of children definitely made the case of the accused fit in the category of rarest-of-rare case so as to affirm the death penalty awarded to the accused, the Court in [SURENDRA KOLI v. STATE OF U.P.] dismissed the appeal in the following terms;

The facts of this case are gruesome and horrifying. It seems that several children had gone missing over 2 years from Sector 31, Nithari Village, Gautam Budh Nagar, Noida from 2005 onwards. Several of such children were alleged to have been killed by the appellant who is also alleged to have chopped and eaten the body parts after cooking them. Appellant Surendra Koli was the servant of accused no. 1 Moninder Singh, and they lived together at D-5, Sector 31, Noida.

The High Court in the impugned judgment dated 11.09.2009 has discussed the evidence in great detail and we have carefully perused the same. It is not necessary therefore to again repeat all the facts which have been set out in the judgment of the High Court except where necessary. We entirely agree with the findings, conclusion and sentence of the High Court so far as accused Surendra Koli is concerned.

Admittedly, there was a confession made by Surendra Koli before the Magistrate under Section 164 Cr.PC on 01.03.2007 and we are satisfied that it was a voluntary confession. The Magistrate repeatedly told the accused Surendra Koli that he was not bound to make the statement and it can be read against him. In our opinion the provisions of Section 164 CrPC have been fully complied with while recording the said statement. 

In the aforesaid statement before the Magistrate appellant Surendra Koli has admitted in great detail how he used to kill the girls after luring them inside the House no. D-5, Sector 31, Noida by strangulating them, and he would then chop up and eat up their body parts after cooking them. Some body parts, clothes and slippers were thrown in the enclosed gallery behind the house at D-5, Sector 31, Noida. He volunteered to lead the police team to the specific spot where he had kept the articles/body parts hidden. The police party reached that spot along with the appellant. On his pointing out, 15 skulls and bones were recovered, and also a knife was recovered from a water tank of a bath room in D-5, Sector 31. On 31.12.2006 during the scooping of the drain in front of D-5, bones and chappals were recovered.
He has given graphic description about the several murders he has committed. Surendra Koli was the servant of co-accused Maninder Singh Pandher as has been admitted by him. The confession under Section 164 has been corroborated in material particulars. The body parts of the killed girls have been found in the gallery behind the house and in the Nala beside the house. Weapons like knife have also been recovered. The girls clothes have also been identified.

Two girls PW-27 namely Pratibha and PW-28 namely Purnima have stated before the trial Court that they were also attempted to be lured inside the House D-5 by Surendra Koli but they refused to enter the house. This was their sheer good luck, for if they would have entered the house then they might have met the same fate. Their evidence indicates the modus operandi of the appellant. The parents of one Rimpa Haldar had filed a missing report at the police station on 20.07.2005 stating that their daughter Rimpa aged about 15 years had gone to do menial work in Sector 20 on 08.02.2005 but had not returned. Smt Doli Haldar came to know that in D-5, Sector 31 human skeleton and clothes had been found. Hence she went there and identified the chunni and bra of her daughter.

The appellant was charged for the murder of Rimpa (amongst others), and was found guilty by both the trial Court and High Court. Although it is a case of circumstantial evidence we are of the opinion that the entire chain of circumstances connecting the accused Surendra Koli with the crime has been established by the prosecution beyond reasonable doubt.

The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The Doctors at AIIMS have put the parts of the deceased girls which have been recovered by the Doctors of AIIMS together. These bodies have been recovered in the presence of the Doctors of AIIMS at the pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act.

On the facts of the case we see no reason to interfere with the findings of the trial court and the High Court that the appellant Surendra Koli is guilty of murdering Rimpa Haldar. Both Courts have gone into the evidence in great detail and we have perused the same. The appellant appears to be a serial killer, and these cases in our opinion fall within the category of rarest of the rare cases as laid down in Bachan singh Vs State of Punjab, 1982 SCC 689 which has been subsequently followed in Atbir Vs Government of NCT of Delhi, 2010 SCC (9) 1. 

The killings by the appellant Surendra Koli are horrifying and barbaric. He used a definite methodology in committing these murders. He would see small girls passing by the house, and taking advantage of their weakness lure them inside the house no. D-5, Sector 31, Nithari Village, Noida and there he would strangulate them and after killing them he tried to have sex with the body and would then cut off their body parts and eat them. Some parts of the body were disposed off by throwing them in the passage gallery and drain (nala) beside the house. House no. D-5, Sector 31 had become a virtual slaughter house, where innocent children were regularly butchered. In our opinion, this case clearly falls within the category of rarest of rare case and no mercy can be shown to the appellant Surendra Koli. 

The appeal is, therefore, dismissed. 

Have a look at the decision.

Legality of Euthanasia: Supreme Court to examine !!!

ARUNA RAMCHANDRA SHANBAUG, a nurse hospitalized since 1973 has come at the centre-stage in as much as euthanasia for her is being considered by the Supreme Court. A Bench of the Court, comprising of Justice Markendey Katju and Justice Gyan Sudha Misra is currently seized of a matter ARUNA RAMCHANDRA SHANBAUG v. Union of India & Ors. which necessarily involves the legality and validity of the plea of Aruna, through her next friend Ms. Pinky Virani, for euthanasia. More facts at this Times of India report. 

The Court has directed constitution of a committee of doctors for submitting a report on the status and position of Aruna such that her plea for assisted suicide could be considered. On the submission of the Report the Court has directed the matter to be heard on 2nd March, 2011 and has required the assistance of the first legal officer of the country, the Attorney Genera of India, such that the matter can be given a final decision. The Supreme Court in its order dated 18th February, 2011 observed as under;

In the above case Dr. J.V. Divatia on 17.02.2011 handed over the report of the team of three doctors whom we had appointed by our order dated 24th January, 2011. He has also handed over a CD in this connection. Let the report as well as the CD form part of the record. 

On mentioning, the case has been adjourned to be listed on 2nd March, 2011 at the request of learned Attorney General of India, Mr. T.R. Andhyarujina, learned Senior Advocate, whom we have appointed as amicus curiae in the case as well as Mr. Shekhar Naphade, learned Senior Advocate for the petitioner. 

We request the doctors whom we had appointed viz., Dr. J.V. Divatia, Dr. Roop Gurshani and Dr. Nilesh Shah to appear before us on 2nd March, 2011 at 10.30 A.M. in the Court, since it is quite possible that we may like to ask them questions about the report which they have submitted, and in general about their views in connection with euthanasia. 

On perusal of the report of the committee of doctors to us we have noted that there are many technical terms which have been used therein which a non-medical man would find it difficult to understand. We, therefore, request the doctors to submit a supplementary report by the next date of hearing (by e-mailing copy of the same two days before the next date of hearing) in which the meaning of these technical terms in the report is also explained. The Central Government is directed to arrange for the air travel expenses of all the three doctors as well as their stay in a suitable accommodation at Delhi and also to provide them necessary conveyance and other facilities they require, so that they can appear before us on 02.03.2011. An honorarium may also be given to the doctors, if they so desire, which may be arranged mutually with the learned Attorney General. 

The Dean of King Edward Memorial Hospital as well as Ms. Pinky Virani (who claims to be the next friend of the petitioner) are directed to intimate the brother(s)/sister(s) or other close relatives of the petitioner that the case will be listed on 2nd March, 2011 in the Supreme Court and they can put forward their views before the Court, if they so desire. Learned counsel for the petitioner and the Registry of this Court shall communicate a copy of this Order forthwith to the Dean, KEM Hospital. The Dean, KEM Hospital is requested to file an affidavit stating his views regarding the prayer in this writ petition, and also the condition of the petitioner.  

Copy of this Order shall be given forthwith to learned Attorney General of India, Mr. Shekhar Naphade and Mr. Andhyarujina, learned Senior Advocates. Let the matter be listed as the first item on 2nd March, 2011. 

Have a look at the order. 

Tests for determining conversion of religion: Supreme Court delineates

The Supreme Court in a recently reported decision [M. Chandra v. M. Thangamuthu, AIR 2011 SC 146] called upon to decide the validity of the claim that the Appellant had converted as Hindu, delineated the test for conversion of religion. The Court also reflected, taking cue from its earlier decision, upon the status of Hinduism as a religion and the role of conversion. The Court was examining the correctness of the decision of High Court of Madras which had allowed an election petition holding that the Appellant had not successfully converted to Hinduism and thus could not claim to be elected on the seat which was reserved for Scheduled Castes.

The Court inter alia observed as under;

21) It is not in dispute that Hindu Pallan Community is notified under the Presidential Order as Scheduled Caste. The appellant claims that though her father was a Christian, her mother continued to profess the customs of Hindu Pallan Community. It is her further case that her father deserted her mother when she was still a child and her mother brought her up as Hindu and her community accepted her and her mother as Hindu. Now the question is whether the appellant is professing and practicing Hinduism. The appellant claims that though her father is a Christian, her mother continues to profess Hindu religion and it is her further case that she was born and brought up as a Hindu by her mother and she continues to profess Hindu faith and in order to reaffirm her faith in Hinduism, she has undergone rituals in Arya Samaj Madurai, and in proof of it she has produced the duplicate copy of the certificate. At the time of hearing of this appeal a lot of debate was generated by both the sides pwith regard to certificate of conversion issued by the Arya Samaj. The appellant in support her view in her evidence has stated the various rituals she followed in the Arya Samaj to reaffirm her faith in Hindu faith, the reason why she is not in a position to produce the original certificate issued and the necessity for production of duplicate certificate. Since this forms the fulcrum of the case, the learned counsel for the respondents pointed out so called various discrepancies in the certificate and to say the least, the length, breadth, borders, dates, signature in the certificate. We will refer to these, when we discuss the veracity of the certificate produced by the appellant to reaffirm her faith in Hindu religion which she claims has professed right from her childhood. Before we do that, it is desirable to notice certain observation made by this court in the case of Perumal Nadar v. Ponnuswami, [1970 (1) SCC 605. This court observed : 

“6. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion. 

8. In Goona Durgaprasada Rao v. Goona Sudarasanaswami Mockett, J., observed that no gesture or declaration may change a man’s religion, but when on the facts it appears that a man did change his religion and was accepted by his coreligionists as having changed his religion and lived and died in that religion, absence of some formality cannot negative what is an actual fact. Krishnaswami Ayyangar, J., observed that a Hindu who had converted himself to the Christian faith returned to Hinduism and contracted a second marriage during the life-time of his first wife and remained and died a Hindu having been accepted as such by the community and co-religionists without demur. Absence of evidence of rituals relating to conversion cannot justify the Court in treating him as having remained a Christian.”

22) In the case of Ganpat v. Returning Officer, (1975) 1 SCC 589, it was observed:

“11. In this connection it is necessary to remember that Hinduism is a very broad based religion. In fact some people take the view that it is not a religion at all on the ground that there is no one founder and no one sacred book for the Hindus. This, of course, is a very narrow view merely based on the comparison between Hinduism on the one side and Islam and Christianity on the other. But one knows that Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths. One of the witnesses has described that he considered Buddha as the eleventh Avtar…… Hinduism  is so tolerant and Hindu religious practices so varied and eclectic that one would find it difficult to say whether one is practising or professing Hindu religion or not.”

23) In Kothapalli Narasayya vs. Jammana Jogi AIR 1976 SC 937, it is stated:-

“These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold.... A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) Order, 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion. We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the first respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste.”

24) In S. Anbalagan vs. B. Devarajan and others (1984) 2 SCC 112, it is observed:-

“These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion.” 

25) In Kailash Sonkar vs. Smt. Maya Devi [(1984) 2 SCC 91], this court speaking through FAZAL ALI, J. made the following observation.

“In our opinion, there is one aspect which does not appear to have been dealt with by any of the cases discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies? In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in a Christian family? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to (sic) a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. 

But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion…. If the structure of the caste is such that its members must necessarily  belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste.... This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.”

26) In C.M. Arumugam vs. S. Rajgopal and Others (1976) 1 SCC 863; the following observation is made by this Court. 

“These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again, become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold. It is the orthodox Hindu society still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status-oriented approach which attaches social and economic disabilities to a person belonging to a scheduled caste and that is why certain favoured treatment is given to him by the Constitution. Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a scheduled caste. But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism.”

27) We must remember, as observed by this Court in Ganpat’s case, Hinduism is not a religion with one God or one Holy Scripture. The practices of Hindus vary from region to region, place to place. The Gods worshipped, the customs, Traditions, Practice, rituals etc, they all differ, yet all these people are Hindus. The determination of the religious acceptance of a person must be not be made on his name or his birth. When a person intends to profess Hinduism, and he does all that is required by the practices of Hinduism in the region or by the caste to which he belongs, and he is accepted as a Hindu by all persons around him.

28) Hinduism appears to be very complex religion. It is like a centre of gravity doll which always regain its upright position however much it may be upset. Hinduism does not have a single founder, a single book, a singe church or even a single way of life. Hinduism is not the caste system and its hierarchies, though the system is a part of its social arrangement, based on the division of labour. Hinduism does not preach or uphold untouchability, though the Hindu Society has practiced it, firstly due to reasons of public health and later, due to prejudices. (copied in tits and bits from the book facets of Hinduism by Sri Swami Harshananda).

29) It is a settled principle of law that to prove a conversion from one religion to another, two elements need to be satisfied. First, there has to be a conversion and second acceptance into the community to which the person converted. It is obvious that the need of a conversion cannot be altogether done away with. 

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Death for 'Kasab': High Court confirms

In a decision which runs over 1200 pages and the High Court itself gives an index as to its table of contents (which itself is unprecedented), the Bombay High Court yesterday answered in affirmative the death sentence reference of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid convicted by the Court of Sessions for Greater Mumbai.

The decision, authored by Justice Smt. Ranjana Desai covers in great detail the events which took place on the fateful day of 26th November, 2008. The magnitude of the events were described by the High Court as 'historic' which it notes in the decision as under;

11. This confirmation case relates to the horrific terrorist attack made on important locations like Hotel Taj, Hotel Oberoi, Chatrapati Shivaji Terminus (for short, “CST”) which are the pride of Mumbai, on the night of 26/11/2008. The terrorist attack continued upto early hours of 29/11/2008. In this terrorist attack, 166 persons died and 238 persons were injured. There was colossal property loss to the tune of about Rs.155,56,77,105/-. The prosecution case is that this attack was masterminded by Pakistan based terrorist organization viz. Laskhar-e-Taiba (for short, “LeT”), which is now known as Markaz-ud-Dawa-wal-Irshad. LeT has its training camps in Pakistan Occupied Kashmir (for short, “PoK”). 

The High Court examined the evidence threadbare and went in great detail to confirm the death-penalty imposed by the Sessions Court. The reasons given for confirming the death penalty are important and therefore we bring the same to you. The High Court noted them in the following terms;

893. In the light of the Supreme Court judgments, we have now draw a balance sheet of aggravating and mitigating circumstances. After giving due weightage to mitigating circumstances, we must strike a just balance and exercise the option. For better appreciation, it would be appropriate to note the aggravating circumstances, which are clearly discernible. 

(1) A1-Kasab is individually responsible for seven murders. He has committed more than 66 murders in furtherance of common intention of himself and deceased A1-Abu Ismail. He has committed rest of the murders by abetting them by conspiracy.  

(2) All murders display extreme brutality and cruelty. They are committed after previous planning. Innocent people are mercilessly killed by A1-Kasab with use of AK-47 rifles and explosives. Those killed include women, children, aged people and policemen. The murders were committed in an extremely brutal grotesque, diabolical, revolting or dastardly manner so as to arouse extreme indignation of the community. 

(3) The crime is enormous in proportion. The magnitude of the attack is indicative of the pre-planning. The attack unleashed such a wave of terror that several victims were not even ready to come forward and depose in the court. A1-Kasab is a threat to the society. 

(4) A1-Kasab has exhibited extreme perversity and depravity. It was he who suggested that navigator Amarchand Solanki should be killed. Deceased A9- Shoaib and deceased A3-Nazir @ Abu Umar caught hold of the legs of Amarchand Solanki. A1-Kasab caught hold of his hair and slit his throat. The postmortem notes of Amarchand Solanki and confessional statement of A1-Kasab bear this out. This was a cold blooded murder. 

(5) A1-Kasab planted RDX bomb in a taxi which exploded at Vile Parle killing the innocent passenger and the driver of the taxi and seriously injuring many.  

(6) PW-52 Khaliluddin and his son were seriously injured at CST due to firing and bomb blast. He identified A1-Kasab in the court as the person who was firing indiscriminately at the people at CST. He has stated that A1-Kasab, who was firing was in a joyous mood due to the result of his firing. He continued to fire at people for 15 to 20 minutes. It is evident that A1- Kasab took perverse pleasure in killing innocent people. 

(7) Another incident of perversity of A1-Kasab is narrated by PW-108 Thomas Uledhar, who was in Cama Hospital at the relevant time. He had seen A1-Kasab from close quarters. He identified A1-Kasab in the court. He has stated that the terrorists could not attack the patients because they were hiding in the toilets and sister's check up room, but they were searching for patients. In his confessional statement, A1-Kasab has stated that as they entered a building at B.T. Road to avoid police firing, they realized that it was a hospital because he could hear women screaming and children crying. They decided that they would go to hospital rooms and kill women and children. They, therefore, tried to open the doors of the rooms, but could not succeed because they were closed from inside. This is indicative of A1-Kasab's warped mental attitude. He had no qualms about killing patients admitted in hospital . 

(8) Before recording his confessional statement, learned Magistrate PW-218 Ms. Sawant-Waghule asked A1-Kasab as to why he wanted to make a confessional statement. He stated that he wanted to make a confessional statement because he was not sorry for what he had done. He stated that he wanted more Fidayeens like him to be created after taking inspiration from his work. Thus, he never showed any remorse or repentance for what he had done, but loudly proclaimed that he wanted to be a role model for others. 

(9) In his confessional statement, A1-Kasab has stated that they had decided that he and deceased A1-Abu Ismail would go to VTS (CST), create heaps of dead bodies by firing at people and then they would proceed to Malabar Hill and fire. He has further stated that they reached Mumbai late by one and half hour. They found that the crowd at CST was much less than what they were shown on the CD and, therefore, they were unhappy. A1-Kasab was obviously unhappy because they wanted to kill more people. He has, therefore, no value for human lives. He took devious pleasure in killing people.  

(10) A1-Kasab was not compelled by LeT to fall in line with LeT's ideology. His confessional statement shows that he willingly and voluntarily joined LeT. He had decided to take training for jehad. He willingly took extensive training for jehad. When wanted A2-Zaki-Ur-Rehaman Lakhvi asked the trainees to stop the operation for a while, he told him that for years he wanted to successfully carry out the mission and he should not stop it now. He did not leave the camp when he was asked to go home for a while but continued to serve the trainees. Therefore, it is impossible to say that he was misguided by LeT; that he did not have a mind of his own or that he was merely used by the handlers as a tool. He is not a misguided person. He knew the consequences of his actions and he wanted to be a part of the conspiracy and voluntarily joined it. 

(11) Perhaps the weightiest aggravating circumstance is that A1-Kasab waged a war against the Government of India pursuant to a conspiracy which was hatched in Pakistan, the object of which was to inter alia, destabilize Government of India and to weaken India's economic might. He indulged in mindless killings of innocent people with a view to overawing Government of India and achieve cessation of a part of Indian territory. There was an attempt to create ill-will and disaffection between different religions of India so as to damage its secular fabric. Waging war is a serious crime which calls for deterrent punishment.  

(12) A1-Kasab along with co-conspirators killed policemen. He and his co-conspirators engaged the policemen and commandos in a battle. Effort was made by the conspirators to keep people hostages so as to make the Government of India helpless and accede to their unlawful demands. They challenged the Indian Army and the State Police. A1-Kasab targetted CST which is under the command of the Central Government. The terrorist attack made by A1-Kasab was not like any other terrorist attack which merely results in the breach of police tranquility. It was an attack on the Government of India whose stability is most essential and crucial for the very existence of democratic India. A1-Kasab challenged the sovereign authority of Republic of India which offence calls for the severest punishment. 

894. The only mitigating circumstance is the age of A1- Kasab, but as stated by the Supreme Court in the aforementioned cases age is not always a decisive factor for giving lesser penalty of life imprisonment. Extreme brutality and diabolic nature of the crime which arouses public indignation can override this consideration. The brutality, perversity and cruelty exhibited by A1-Kasab by committing multiple murders of innocent men, women, children, aged persons and policemen without provocation for a motive which has no moral justification makes this case a gravest case of extreme culpability. The conduct of A1-Kasab shows that his mental age overrides his physical age. He has never shown any repentance, but has loudly proclaimed that he wants to create more Fidayeen by setting an example by his conduct. It is impossible to agree with Mr. Solkar that A1-Kasab is mentally unstable or that he has committed these crimes because he was emotionally disturbed. This submission was rejected by us by our reasoned order dated 15/12/2010. That order has assumed finality. In any case, in our short interaction with A1-Kasab on Video Conferencing, we observed his demeanour. He did not appear to be repentant at all. He was perfectly sane. He was in proper frame of mind. All his actions, the manner in which he committed the crime, his cleverly trying to change his stand in the court and other attendant circumstances portray a scheming mind and not a mind of a mentally unstable person. It was argued that A1-Kasab is a Fidayeen, that he had come here to die, that his death will fulfill his desire, that he will become a martyr and that will encourage more people to take his path. We unhesitantly reject this argument. It is important to note that on the GPS, the terrorists had saved the routes from Mumbai to Karachi. There was, therefore, a desire to go back after successfully achieving the despicable target and embark upon similar activities. We are of the confirmed opinion that any misplaced or unwarranted sympathy would be counterproductive. The argument that he will become a martyr and, therefore, death sentence should not be awarded to him does not deter us from confirming death sentence. We want those who are desirous of emulating him to know that Courts do not take a kindly view of such people.  

895. There is hardly any scope for a person like A1-Kasab to be rehabilitated or reformed. In any event, in some cases, the harsh penalty of death is necessary to warn those who may want to take similar path. Strong arm of law must deal with A1-Kasab firmly otherwise a wrong signal will be sent that the courts are ineffective in dealing with crimes as serious as this. Soft handling of a crime like this will erode the public confidence in the efficacy of law. 

896. We remind ourselves of the observations of the Supreme Court in Dhananjay Chatterjee, which are as under: 

“In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment”. 

897. Thus, the punishment must befit the crime. The punishment must reflect public abhorrence of the crime. The rights of the victims must also be kept in mind. Examined in the light of the settled principles and after drawing the balance sheet, we are of the considered opinion that in this case, the lone mitigating circumstance i.e. young age of A1-Kasab must recede in the background. Even after according maximum weightage to the age factor, we feel that there is no alternative but to confirm the death sentence. This is, indeed, a rarest of rare cases involving uncommon and unprecedented crime for which sentence of life imprisonment is inadequate. We feel that we would never be as confident as we are today in confirming the death sentence. We are of the opinion that the death sentence must be confirmed. In view of this, we hold that learned Sessions Judge is right in not imposing sentences for minor offences. He is right in not awarding separate sentences for the offences covered by Section 34 and Section 109 read with Section 120-B of the IPC. 

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Courts not to insist on attendance of public functionaries: Supreme Court

Holding that the trust and faith reposed in the judiciary should not be allowed to be frittered away, the Supreme Court in a recent decision [State of U.P. & Ors. v. Jasvir Singh & Ors.] has declared that directions by the Court for ensuring attendance of public functionaries in Courts should be exceptional and not the norm of the day. Holding that "requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly", the Supreme Court served an apt reminder to the Courts to exercise their powers with caution.

The Court inter alia observed as under;

6. The fact that the issue relating to increase of compensation is pending in appeals before the High Court in pursuance of the order of remand by this Court, is not in dispute. The quantum of compensation will have to be decided in those appeals and not in a writ petition. As on date, there is no order either in the appeal or the writ petition determining any amount (other than what was awarded by the Reference Court) as due to the respondents. The contention and prayer of the respondents in the writ petition that fresh notifications should be issued regarding the acquisitions and the compensation should be determined with reference to the current rates as on the date of such fresh notification and not as on 18.8.1981, is a matter that is yet to be decided in the writ petition. As both the writ petition and the appeals are pending, it cannot be said that there is any delay on the part of the state government or its officers in effecting payment of compensation. The delay at present is in fact on account of the pendency of the matters before the High Court. If the High Court was of the view that the matter was getting unnecessarily delayed, or that any injustice had been caused to the land owners, it ought to have heard the writ petition finally and decided the dispute on merits instead of listing the matter on several days and asking different senior officers of the state government to be present and virtually intimidate them to agree for a settlement by paying compensation at current market value instead of with reference to 18.8.1981. The procedure and method adopted by the Division Bench of the High Court, to say the least, is improper and requires to be deprecated.

7. It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in court, of senior officers of the government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the court to render justice or arrive at a proper decision. But there are well settled norms and procedures for exercise of such power.

8. This court has repeatedly noticed that the real power of courts is not in passing decrees and orders, nor in punishing offenders and contemnors, nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. Such trust and confidence should not be frittered away by unnecessary and unwarranted show or exercise of power. Greater the power, greater should be the responsibility in exercising such power. The normal procedure in writ petitions is to hear the parties through their counsel who are instructed in the matter, and decide them by examining the pleadings/affidavit/evidence/documents/material. Where the court seeks any information about the compliance with any of its directions, it is furnished by affidavits or reports supported by relevant documents. Requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly. The court may also require personal attendance of the officers, where it finds that any officer is deliberately or with ulterior motives withholding any specific information required by the court which he is legally bound to provide or has misrepresented or suppressed the correct position .

9. Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it. At all events the courts should avoid directing the senior officers to be present in court to settle the grievances of individual litigants for whom the court may have sympathy. The court should realize that the state has its own priorities, policies and compulsions which may result in a particular stand. Merely because the court does not like such a stand, it cannot summon or call the senior officers time and again to court or issue threatening show cause notices. The senior officers of the government are in-charge of the administration of the State, have their own busy schedules. The court should desist from calling them for all and sundry matters, as that would amount to abuse of judicial power. Courts should guard against such transgressions in the exercise of power. Our above observations do not of course apply to summoning of contemnors in contempt jurisdiction.

10. We have made the above observations rather reluctantly. Our observations should not be construed as restricting or limiting the exercise of the extraordinary jurisdiction of High Courts under Article 226 of the Constitution of India. The observations are intended to be guidance for self-regulation and self-restriction by courts. It became necessary as we have noticed that the learned Presiding Judge of the Bench has been frequently making such orders directing senior officers of the Government to be present and settle claims. It is a coincidence that another case where a similar procedure was adopted by the learned Presiding Judge of the bench, came up before us today Lake Development Authority, Nainital vs. Heena Khan (CA No.10087-10090 of 2010 decided on 26.11.2010). We have no doubt that the learned Judge bona fide believes that by requiring the presence of senior officers, he could expedite matters and render effective justice. But it is not sufficient that the object of the Judge is noble or bonafide. The process of achieving the object should be just and proper, without exceeding the well recognised norms of judicial propriety. 

11. In this context we may refer to the following observations of this court in State of Gujarat vs. Turabali Gulamhussain Hirani - 2007 (14) SCC 94 :

"A large number of cases have come up before this Court where we find that learned Judges of various High Courts have been summoning the Chief Secretary, Secretaries to the Government (Central and state), Directors General of Police, Director-CBI or BSF or other senior officials of the Government. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the top of a hat. Judges should have modesty and humility. They should realize that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counterproductive and may also involve heavy expenses and valuable time of the official concerned. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night."

12. On the facts and circumstances, the interim directions of the Division Bench of the High Court, issued while dealing with a writ petition challenging the acquisition, requiring the Principal Secretary (PWD), Principal Secretary (Finance) or Principal Secretary (Revenue) to be present on different dates, are improper and are liable to be interfered.

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Cause of action in cases of medical negligence: Supreme Court examines

Called upon to examine the validity of the order of the National Consumer Disputes Redressal Commission which held that the consumer complaint filed by a Nurse alleging medical negligence on part of a doctor who had operated on her was in time, the Supreme Court in a recently reported decision [Dr. V.N. Shrikhande v. Mrs. Anita Sena Fernandes, AIR 2011 SC 212] took note of the Discovery Rule, as applicable in the United States, to hold that the cause of action in cases of medical negligence would arise when the patient first discovered the alleged negligence.

Holding that the complainant being an experienced Nurse and employed in the Government Hospital, "it was reasonably expected of her to have contacted" the doctor who performed the surgery on her. However her omission to do so and file a complaint after a significant lapse of time, was what factored in the judgment of the Court to hold the complaint being barred by time. In arriving at this conclusion, the Court examined the comparable position in other jurisdictions to declare the law applicable in India in the following terms;

18. In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative-complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence. 

19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patient’s body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patient’s body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later. The Court rejected the objection of limitation and observed:

“It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the hysterectomy.”

Again, the Court observed: 

“We believe that the ‘discovery rule’ as stated and applied in cases cited above represents a distinct and marked trend in recent decisions of appellate courts throughout the nation.”

In Idaho, the Discovery Rule was invoked in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224. The facts of that case were that the plaintiff underwent a surgical operation in 1946. A sponge was left in the wound when the incision was closed. The same was discovered in the patient’s body in 1961. During the intervening period the patient sustained considerable suffering, during which she consulted various physicians. After reviewing numerous authorities at great length, the Court cast aside the earlier doctrine, adopted the Discovery Rule and observed:

“In reality, the ‘general rule’ has little to recommend it. It is neither the position of a majority of the jurisdictions nor is it firmly based on considerations of reason or justice. We will, therefore, adhere to the following rule: where a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.”

The facts in Quinton v. United States, 304 F.2d 234 were that the wife of the plaintiff was given blood transfusion in a Government hospital in 1956. In June, 1959, the plaintiff and his wife during the latter’s pregnancy discovered that wrong type of blood was given to her in 1956 and as a result she gave birth to a stillborn child. The Government sought dismissal of the action for damages on the ground of limitation. The Court of Appeals opined that when a claim accrues under the Federal Tort Claims Act, it is governed by Federal law and not by local State law. The Court then held that the period of limitation does not begin to run until the claimant discovers, or in the exercise of reasonable diligence should have discovered the act constituting the alleged negligence.

In Josephine Flanagan v. Mount Eden General Hospital LEXSEE 24 N.Y. 2d 427, the application of the rule of Discovery was considered in the background of fact that during the course of operation done on 14.7.1958, surgical clamps were inserted in the plaintiff’s body. In 1966, the plaintiff consulted a doctor because she experienced severe pain in the region of her abdomen. The doctor told her that surgical clamps were discovered by Xray analysis. Thereafter, another operation was performed to remove the clamps. The defendants sought dismissal of the complaint on the ground that the same was barred by time. The Court referred to the Discovery Rule and observed:

“The so-called discovery rule employed in foreign object medical malpractice cases is in compatible harmony with the purpose for which Statutes of Limitation were enacted and strikes a fair balance in the field of medical malpractice. The unsoundness of the traditional rule, as applied in the case where an object is discovered in the plaintiff’s body, is patent. “It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the operation.” 

In the case before us, the danger of belated, false or frivolous claims is eliminated. In addition, plaintiff’s claim does not raise questions as to credibility nor does it rest on professional diagnostic judgment or discretion. It rests solely on the presence of a foreign object within her abdomen. The policy of insulating defendants from the burden of defending stale claims brought by a party who, with reasonable diligence, could have instituted the action more expeditiously is not a convincing justification for the harsh consequences resulting from applying the same concept of accrual in foreign object cases as is applied in medical treatment cases. A clamp, though immersed within the patient’s body and undiscovered for a long period of time, retains its identity so that a defendant’s ability to defend a “stale” claim is not unduly impaired.

Therefore, where a foreign object has negligently been left in the patient’s body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice.” 

The proposition laid down in Flaganan’s case was reiterated in John D. Adams and Jeanette S. Adams v. New Rochelle Hospital Medical Center, 919 F.Supp.711.

Have a look at the decision.