Monday, May 4, 2015

Article by Advocate Karunanidhi about Justice Bhagwati

 
Article written by Mr. R. Karunanidhi, Advocate, Madurai Bench of Madras High Court

இந்தியாவின் உச்சநீதிமன்ற முன்னாள் தலைமை நீதிபதி பி.என்.பகவதி பற்றி எழுதிய கட்டுரை இன்று வெளியானது.
The CTC (Current Tamil Nadu Cases) - a legal reporter published my article "A FREEDOM FIGHTER AND A HUMANIST CHIEF JUSTICE OF INDIA - P.N. BHAGWATI". 2015 (2) CTC page 147.
A young man gave up his studies when he was studying Post Graduation second year and joined into Freedom struggle after inspiration and great impact of Mahatma Gandhi and other great Indian leaders. He assumed charge of student movement under guidance of Purusottam Trichumd. When Freedom fighters assembled at lawns of the Gowalia Tank Maidan the Police resorted a severe lathi charge in the second week of August, 1942 and following this many freedom fighters injured including the young man and he was arrested among others by the British Police officers and he was kept in Colaba Police Station in a dingy cell of 8’ x 6’ and the next day he was sent to Worli prison. He was languished in Worli prison for a period of one month. Subsequently he had continued his struggle for independence in various ways. The same young man became Chief Justice of this country and served through his Judicial Activism. He introduced the conception of Strict Liability theory, Public Interest Litigation and Epistolary Jurisdiction and further till date taking stand against the inhuman punishment of death penalty. He is Justice Prafullachand Natwarlal Bhagwati.
FREEDOM FIGHTER TURNED TO HIGH COURT JUDGE
After freedom struggle he returned to studies and joined LLB at Government Law College, Bombay. Later than studies he became an Advocate and started practice at Bombay High Court in July, 1948. During his practice the State of Bombay was bifurcated into State of Gujarat and State of Maharashtra. He became Judge of the Gujarat High Court on 21st July, 1960 at his age of 38. Till date he remains the youngest judge appointed by any high court in India. Justice P.N. Bhagwati rendered a land mark verdict and uphold the Right to Speech and Expression as fundamental right when the then Gujarat Government banned a book titled “Quotations from Mao Tse Tung” in Munubhai Tribhovandas Patel –Vs- State of Gujarat (1972 Cr.L.J.388). He held that the ban imposed by the Government as unconstitutional further observed it is for the people to decide whether or not to follow the philosophy of Communism as expounded by Mao Tse Tung. This is one of his bold and important judgments during his high court judgeship. When he was the Chief Justice of Gujarat High Court, he decided to launch Free Legal Aid Programme which included free legal aid and advice in order to ensure basic human rights to the needy people. The then Gujarat Government established a committee regard to the legal aid on the request of Justice P.N. Bhagwati.
CHIEF JUSTICE OF INDIA
Justice P.N. Bhagwati elevated to the Supreme Court on 21st July, 1973. The eminent great jurist Justice V.R.Krishna Iyer was sworn in as a judge of the Supreme Court on the same day as himself. Both of them worked together as Members of High Powered Committee appointed by the Government of India for the purpose of considering and recommending setting up of a legal aid organization at the central level and state level. On Sitting behind the awe-inspiring desk of the court, he has read out his slightly nasal and high pitched voice some of the landmark judgments that have inexorably expanded the scope and limit of the fundamental rights. Under his leadership the Indian Supreme Court has developed comprehensive human rights jurisprudence for India through his creative interpretation. His assertive pronouncement in a case in 1974 became milestone in defining the citizen’s right to equality before the State. He decreed along with Justice V.R. Krishna Iyer and Justice Chandrachud in Royappa Vs State of Tamil Nadu, 1974 SCR (2) 348 wherein held in his judgment that arbitrariness was the very antithesis of equality. As a result, thousands of arbitrary government actions get struck down by the courts every year on the ground of their violating the equality clause in the Article 14 of the Constitution of India. The Indian Judiciary has looked beyond the courtroom and seen and felt the misery and suffering of poor and downtrodden and Justice P.N. Bhagwati used the judiciary process to wipe their tears and makes their lives meaningful. Throughout his judicial career he tried to turn the justice system into an ally of the poor and the downtrodden.
Justice P.N. Bhagwati is known for his judicial activism world over. One cannot talk of judicial activism in India without mentioning the name of justices like Bhagwati and V.R. Krishna Iyer. When they adorned the highest bench of the Indian judiciary, judicial activism assumed a human face with the mechanism of public interest litigation being resorted to find justice and relief to the marginalized and the oppressed. A case became the guiding-light for the development of Human Rights with Article 21 of the Constitution of India. Justice P.N.Bhagwati has given wider meaning to the expression of life and Personal Liberty. The Court held that Menaka Gandhi had a right to have a passport under Article 21, which stated that no one shall be deprived of his liberty except by procedure established by law. In the decision the Court stated that such procedure must be “reasonable, fair and just,” establishing procedural due process. {Menaka Gandhi – Vs- Union Of India (1978 (1) SCC 248)}.
DESIGNER OF PUBLIC INTEREST LITIGATION
Today largely due to the efforts of the highest court Public Interest Litigation has been effectively conceptualized and it is judicially and largely institutionalized. The splendid efforts of the Centenarian great Justice V.R. Krishna Iyer and Justice P.N. Bhagwati were instrumental of this juristic revolution of eighties. The 1977 report of the committee of Justices Krishna Iyer and P.N. Bhagwati, both of the Supreme Court, drew up a detailed scheme which envisaged Public Interest Litigation (PIL) as a major tool in bringing about both institutional and law reform even while it enabled easy access to the judicial system for the poor. Their report, as those of the previous committees, was ignored. This explained partly the impatience of these two judges, in the post-emergency phase, in making the institution appear responsive to the needs of the population that had stood distanced from it. The two judges played a major role in spearheading the PIL jurisdiction. It has come to be recognized as an effective weapon in the armory of the law for securing implementation of the constitutional and legal rights of the under privileged segments of the society and ensuring social justice to them. Justice P.N.Bhagwati developed the innovative strategy of Public Interest Litigation for the purpose of making basic Human Rights meaningful for the large masses of people living in the country and making possible for them to realize their social and economic entitlements. The Supreme Court had never heard of before and one which would eventually kick off a revolution called the Public Interest Litigation (PIL) across the country.
One morning, in January 1979, a report in The Indian Express “Sickened and Revolted”, The report, authored by KF Rustamji, then member of the National Police Commission, revealed the inhuman conditions in which 18 prisoners, including six women, were languishing in Patna and Muzaffarpur jails, as they awaited trial, at times for periods longer than they would have been sentenced to, had they been convicted. Pushpa Kapila Hingorani, a practicing lawyer in the Supreme Court in Delhi and her husband Nirmal Hingorani wanted to represent the under trial prisoners, but back then, according to Indian law, one could only file a petition if you were a victim or a relative. The couple then hit upon the novel idea of filing a habeas corpus petition on the prisoners’ behalf. Two weeks after Kapila argued the case in court, the Supreme Court issued a notice to the Bihar government, which led to the release of all the victims in the case, and eventually about 40,000 under trials across the country. The landmark case came to be known as the Hussainara Khatoon case. Hussainara was one of the six women prisoners and became the first public interest litigation (PIL) in India. The historic case, later known to every law student in India as Husnara Khatoon Vs State of Bihar (1980 (1) SCC 81), drew its name from one of the prison inmates. It was the first PIL in India. A shocked Supreme Court Bench led by Justice P.N. Bhagwati went on to release over 40,000 under trial prisoners from various jails nationwide and Justice P.N. Bhagwati became the mascot of whole generation of Social Activist. Therefore we can call Pushpa Kapila Hingorani as "Mother of PIL" since she is well deserved. She has over the past 30 years done nearly 100 PILs, free of cost, including the Bhagalpur Blinding case of 1981 and Rudul Sah case of 1983.
Justice P.N.Bhagwati realized that the main obstacle which deprived the poor and the disadvantaged of effective access to justice was the traditional rule of locus standi. Later Justice P.N.Bhagwati took a view it was necessary to depart from the traditional rule of locus standi, and made any member of the public or social action group action bona fide maintain an action in the High Court or Supreme Court for seeking judicial redress for the legal wrong or injury caused or likely to be caused to such a person or class of persons. A veritable exudation from the skies for social action groups whose plaint to intercede on behalf of poor and wronged citizens would customarily be thrown out by the courts on the ground that they lacked locus standi. Justice P.N.Bhagwati was the instrumental in the evolution of “Epistolary Jurisdiction” which means even by just writing a letter to the court on behalf of disadvantaged class of persons for redress their grievance. He felt that the money will not be a bar when any member of the public or social action group to espouse the cause of the poor and downtrodden. In the year 1982, Mahaboob Batcha, the editor of “Nijangal” a Tamil magazine wrote a letter about four political prisoners who handcuffed with heavy chains and they were treated not like human beings. Justice P.N.Bhagawati treated the letter as writ petition and given direction to remove hand cuff. In Anil Yadav -Vs- State of Bihar 1982 (2) SCC 195, commonly referred to as Bhagalpur Blinding case. This shocking case was dealt with Justice P.N.Bhagwati. In this case the 31 Prisoners were doused with acid on their eyes were blinded while inside the police station in a horrific manner. Bhagwati directed the Government to pay compensation and further directed the blinded persons should be given vocational training in the institute for settling them up in life. Further he recorded in the order that the Judicial Magistrates failed in their duties to inform blinded prisoners of their rights. As a result, the Supreme Court had to cast a duty on all Magistrates and Courts to promptly and duly inform the indigent accused about his right to get free legal aid as without this the right may prove to be illusory.
The practice of appointing socio-legal commissions also repeatedly establish by him for enquiring for the purpose of gathering relevant material to assist the cases. Justice P.N.Bhagwati appointed District Judge of Agra to visit protective home. He issued various directions to improve the living condition of Girls in the Protective Home. {Dr.Upendra Baxi -Vs- State of Uttar Pradesh (1986 (4) SCC 106)}. A journalist called Sheela Barse, brought a case wherein P.N.Bhagwati directed the Government that there should be a separate lock-up room for women which should under charge of Women Police Constable and in addition, a notice should be put up in each police lock up informing the arrested persons of their rights and judicial officers should periodically inspect the police lock up. Sheela Barse(II) -Vs-Union of India (1986 (2) SCALE 230).
In his last judgment before his retirement as Chief Justice of India made a new rule of Strict Liability in M.C.Mehta –Vs-Union of India (1986 (2) SCC 325). He departed the traditional law laid down in Rylands –VS- Fletcher(1868 LR 3 HL 330). In this case one M.C.Mehta moved Public Interest Litigation claiming compensation for the losses caused to the people as a result if escape of oleum gas and prayed the closed establishment should not be allowed to restart. The Court also pointed out the measure of compensation to the victims.
A JUDGE AGAINST DEATH PENALTY
While making a fervent plea for abolishing death penalty, Justice P.N. Bhagwati, in his powerful dissenting judgment against death penalty in the Bachan Singh-Vs- State of Punjab (1982) 3 SCC 24, Held, “Death sentence has certain class complexion or class bias in as much as it is largely the poor and downtrodden who become victims of this extreme penalty. We would hardly find a rich or affluent person going to the gallows.” Further he observed that the Section 302 of IPC in so for as it provides for imposition of death penalty as an alternative to life sentence is ultra vires and void as being violative of Article 14 and 21 of the Constitution since it does not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence. We have to remember Justice V.R.Krishna Iyer who continuously fights against the death penalty even at the age of 100.
RELEASING OF BONDED LABOURERS AND REHABILITATION
He has championed the cause of workers and labourers. His thought provoking judgments on bonded and unorganized labour and child labour have resulted in various legislations and government schemes in improving their social and economic conditions. He is also involved in the programme of sustainable development and has been responsible for developing poverty jurisprudence in India. Article 23 of the Constitution of India prohibits the forced labour and the responsibility for the implementation of Bonded Labour (Abolition) Act, 1976, lies with the State Government. But the State Government never had been Serious about implementation of this law. A PIL was filed by AWARE – a social Service organization regarding Bonded Labourers in stone quarries in Ranga Reddi Dist, Andra Pradesh. Justice P.N.Bhagwati was the first Supreme Court Judge who released 2021 Bonded labourers from quarry and sent back to their homes. Justice P.N.Bhagwati appointed Madhavan as Commissioner of Supreme Court to investigate the atrocities against Harijans in Nakkalapalayam, Village in Andhra Pradesh. Due to efforts 44,000 Acres of Land recovered and distributed to over 51,000 poor Families in the village. In another case, Justice P.N.Bhagwati concerning the bonded labour in Faridabad stone quarries and ordered to release bonded labourers and given 21 direction including rehabilitation and specifically directed to set up dust sucker machine in the quarry for the welfare of labourers. {Bandhua Mukti Morcha –Vs- Union of India (1991 (4) SCC 177)}. Justice P.N. Bhagwati emphasized the fact that mere release of bonded laborers was never good enough but a sustained effort was needed for their rehabilitation. This is because without rehabilitation, they would be driven by poverty, helplessness and despair into serfdom once again. He directed the state authorities to provide rehabilitation under the Bonded Labour System (Abolition) Act, 1976. {Neeraja Chaudhary-Vs-State of Madhya Pradesh (1985 (3) SCC 243)}
Mr. Mahaboob Batcha who is the Managing Trustee of Society for Community Organization Trust (SOCO) wrote a letter about the appalling living condition of Paliyar Tribes in Jungles of Western Ghats. Justice P.N.Bhagwati accepted the letter as writ petition and created a three members commission. In view of the same efforts 43 bonded Labourers were released and rehabilitated with the help of SOCO trust. His reputation and his impact, through his judicial and legal aid work, is so enormous that the public response has been quite phenomenal, e.g., a village where the tribal people benefited from his judgment, renamed the village after him calling it BHAGWATI NAGAR. Mahaboob Batcha was also involved in the liberation for 157 bonded Labourers of Kodaikanal after a long struggle. Justice P.N.Bhagwati appointed him as a Commissioner in order to provide rehabilitation. Mahaboob Batcha established Bhagwati foundation which create enthusiastic human rights lawyers in the society and the foundation conduct various campaigns against the Capital Punishment.
BHAGWATI’S CONTRIBUTION AROUND THE GLOBE
Justice Bhagwati was the Chairman of the South Asian Task Force on Judiciary. He was the Vice-Chairman of El Taller, an International Human Rights Development Organization located in Tunis. The Inter-continental International Group of Eminent Persons (IIGEP) was headed by Justice P.N. Bhagwati to oversee the functioning of the presidential Commission of Enquiry to investigate prominent cases of human rights violations in the Sri Lanka Island since August, 2005. Justice Bhagwati daringly in his concluding public statement said the process did not satisfy international norms and standards and charged that the Attorney-General's Department was partial in its conduct in cases coming before the commission. Justice P.N.Bhagwati expressed concern over the lack of witness protection system to make the investigative process meaningful and the Sri Lanka Government was having “Political and Institutional Will”.
A JUDGMENT RECEIVED BRICKBAT
Nevertheless Justice P.N. Bhagwati is one of the most distinguished jurists of India since the independence of this country. A controversial judgment delivered by him was in the ADM Jabalpur -Vs- Shivkant Shukla (1976 (2) SCC 52) case (popularly referred to as the ADM Jabalpur case or the Habeas Corpus case) where he decreed that during Emergency, a person's personal liberty can be suspended. This judgment received a lot of criticism since it reduced the importance attached to Fundamental Rights under the Indian Constitution. Bhagwati later agreed that he was wrong and "apologized" for the same further admitted that the majority opinion was not the correct judgment. As a bold judge, as an imaginative judge, as a judge working for the people, he should not have taken that view.
Finally, apart from the criticisms we have to remember his contribution to this society as a freedom fighter and a humanist judge of this country’s highest court. He received the second highest civilian honour of India, Padma Vibhushan in the year 2007. The Columbia University awarded honorary doctorate in law. Justice P.N. Bhagwati used to repeatedly say very often, judges forget, lawyers also forget, and that law is not an abstraction. Law is something which has been molded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. Present the Hon’ble sitting judges must interpret the law for the improvement of the deprived marginalize people of this country.
Written by R. Karunanidhi, practicing Advocate at Madurai Bench of Madras High Court

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