Not So Worthy, My Lord

The Supreme Court’s order in the Shaukat case represents a complete miscarriage of justiceDURING THE Emergency in 1976, the Supreme Court (SC) delivered a shocking judgement in the habeas corpus case known as ADM Jabalpur, which stunned the whole country. In its judgement, the SC declared that during the Emergency nobody had any right to life or liberty. On May 14, 2008, the Supreme Court delivered another horrifying judgement in another habeas corpus case, that of Shaukat Hussain Guru. Can we imagine any civilised country where an apex court can sentence a person to imprisonment without framing a charge, without giving him any opportunity to present evidence in his defence, when the offence of which he is convicted puts the burden of proof on the accused?
Sounds incredible, but it is true. This is the precise reason why people need to sit up and take notice. What has been done to Shaukat today can be done to any of us tomorrow. A careful reading of the Supreme Court judgement of May 14 itself would bear this out. The facts are totally beyond dispute.
The Supreme Court in an admirable judgement (P. Venkatarama Reddy & PP Naolekar) of August 4, 2005, decided the POTA case relating to the Parliament attack on December 13, 2001. In a careful and wellreasoned judgement, written by Justice Reddy, the court acquitted Shaukat of all the 12 charges, which had been framed against him in the special court. It was expressly held that Shaukat was not a party to the conspiracy to attack Parliament. No charge had been framed against Shaukat in the special court under Section 123 IPC, which read with Section 39 CrPC, requires a person who becomes aware of the intention of any other person to commit certain offences, to give that information to a police officer, unless he has a reasonable excuse. The burden of proving the reasonableness of the excuse is on the accused.
In the absence of a charge under Section 123 IPC, the question of Shaukat producing evidence of whether he had any reasonable excuse for not reporting this to a police officer did not arise. In fact, even if he had informed a police officer, who did not take him seriously, he could have led that evidence to that effect only if he was charged for that offence. No argument was made by the public prosecutor during the protracted hearing in the SC that even if no charge of conspiracy was proved against Shaukat — and he had to be acquitted of all the 12 charges against him — he could still be convicted for an offence under Section 123 IPC with which he had not been charged.
If he had raised any such argument and asked for a conviction under Section 123 IPC, the judges would have been confronted by the threejudge SC decision in Shamsaheb Multani’s case (2001) 2 SCC 577. In this case a husband was charged under Section 302 IPC for the murder of his wife. The High Court had acquitted him of that charge but convicted him under the offence of “dowry death” under Section 304-B, and imposed life imprisonment. The SC formulated the question before them thus: “The question raised is this: Whether an accused who was charged under Section 302 IPC could be convicted alternately under Section 304-B IPC without the said offence being specifically put in the charge.”
The SC pointed out that unlike an offence under Section 302, where the burden of proof was on the prosecution, for an offence under Section 304-B, it shifts to the accused and it laid down: “If that be so, where an accused has no notice of the offence under Section 304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice, when he is alternately convicted under Section 304-B IPC and sentenced to the serious punishment prescribed thereunder.”
The SC further said, “the above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternately convicted under Section 304-B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.” The principle laid down is clearly applicable to Shaukat’s case. I have no doubt that if the point had been raised by the public prosecutor, during the hearing or even if the judges had raised it, the bench of Justices Reddy and Naolekar, would not have convicted and sentenced Shaukat under Section 123 IPC after seeing the judgement in Shamsaheb Multani case.
However, this idea occurred to the judges after the judgement was reserved, and they never heard the accused or his counsel on Section 123 IPC. By their judgement of August 4, 2005, while acquitting Shaukat of all the charges framed against him, the court convicted and sentenced him under Section 123 IPC in the following words: “Thus by his illegal omission to apprise the police or magistrate of the design of Afzal and other conspirators to attack Parliament, which is an act of waging war, the appellant Shaukat has made himself liable for punishment for the lesser offence under Section 123 IPC.” To err is human and judges are indeed human. If judges decide a question without hearing, they may make mistakes. This is why the principle of natural justice requires a hearing before any judicial decision.
In a seven-judge judgement in Antulay’s case (1988) 2 SCC 602, the SC has held that “violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity”.
IN THAT case, the SC by an earlier order had transferred a trial from a special judge to the high court. This order of the SC was held to be a nullity on two grounds, one that it had been made in contravention of the principles of natural justice and secondly this order was also in contravention of a fundamental right. Article 21 of the Constitution confers the most important fundamental right in these glowing words: “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. The procedure is prescribed by the CrPC. It requires the framing of a charge, an opportunity to the accused to lead defence evidence on that charge and an oral hearing through counsel.
The SC not only contravened this fundamental right of Shaukat but also convicted and sentenced him without hearing him or his counsel on this new charge under Section 123 IPC. The SC’s conviction and sentence were therefore clearly a nullity as laid down by the seven-judge bench in Antulay’s case. However, instead of rushing to file a habeas corpus petition straight away, Shaukat first filed a review petition, so that the judges themselves could correct their error. The senior judge, P. Venkatarama Reddy, who had otherwise written an admirable judgement has since retired. The review petition was dismissed in the chambers without any hearing.
A curative petition was then filed by Shaukat was also dismissed in the chambers without any hearing. It was only then that a habeas corpus petition was filed. When Antulay’s judgement, Rupa Hurra judgement and Shamsaheb Multani judgement were shown to a bench of Justice Naolekar and Justice Ravindran, they issued a notice and put up the matter for a final hearing.
The petition was finally heard for two days before Justice Naolekar & Justice Sirpurkar, after which the infamous judgment was delivered on May 14, 2008. The court’s attention was drawn to the five-judge Constitution bench judgement in Rupa Ashok Hurra case (2002) 4 SCC 388 in which the court had observed: “Almighty alone is the dispenser of absolute justice — a concept which is not disputed but by a few. We are of the view that though judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of rare cases, which would require reconsideration of a final judgement to set right miscarriage of justice complained of. In such cases, it would not only be proper but also obligatory both legally and morally to rectify the error.”
Only great judges admit to making mistakes and correct it. Evidentially, these two judges did not prove themselves to be so worthy.
SHANTI BHUSHANFormer Law Minister and legal luminary
From Tehelka Magazine, Vol 5, Issue 23, Dated June 14, 2008 http://www.tehelka.com

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