India and Pakistan

It is my firm belief that India and Pakistan (and Bangladesh) must reunite under a strong secular modern minded government which does not tolerate religious extremism, and crushes it with an iron hand. I know this will not happen in the near future, because those who divided us will not let us easily reunite. But I am planting a seed which will grow up into a tree and bear fruit in 15-20 years. It will not bear fruit immediately, but unless it is planted now, there will be no fruit in the future.This will require patiently educating the people for a long time about the truth.

You must be mad at me for calling Pakistan a fake, artificial country. Let me clarify that I believe that 99% people of all countries are good, and therefore 99% people of Pakistan ( and India) are good. I am a disciple of the great philosopher Rousseau who believed that most people are good. However, most people are also simpletons, and can be befooled and taken for a ride by wicked people. That is what was done by the British to our people (see online 'History in the Service of Imperialism' by B.N.Pandey). There was zero% communalism in 1857, i.e. before the Mutiny, but after the Mutiny the British decided that the only way to control India was to spread communal hatred between Hindus and Muslims. This divide and rule policy was followed relentlessly and systematically by the British after 1857. The British Collector used to secretly call the Hindu Pandit, give him some money, and ask him to speak against Muslims, and similarly he would secretly call the Muslim Maulvi, give him money, and ask him to speak against Hindus. Communal riots were artificially engineered. This was done year after year, decade after decade. In 1909 separate electorates were introduced by the Minto-Morley 'Reforms'. All this resulted in the horrors of Partition (read the stories about Partition by Manto). Even after 1947 there are wicked people who are spreading communalism.

Unless we reunite there will never be peace. The 2 nation theory on the basis of which Pakistan was created is bogus. Whenever I meet my Pakistani friends I feel no different from them, we speak the same language, we look like each other, and we share our love for Urdu. How are we two different nations ? I will never accept this fraud. It was high time someone had to speak the truth, and it seems it was for me to bell the cat.

Read my article " The Truth about Pakistan "

Urdu

Upto 1947 Urdu was the common language of all educated people, Hindu, Muslim, Sikh, etc in large parts of urban India. My father, grandfather, etc were all very proficient in Urdu. After 1947 a vicious propaganda was spread by some biased people that Hindi is the language of Hindus and Urdu is the language of Muslims. This way great damage and great injustice was done to Urdu, which was branded as a communal language, when the truth is that it is thoroughly secular.

I have read the poetry of many Indian poets, e.g. Tulsi, Sur, Rahim, Mira, Bhushan, Raskhan, Kabir, Tagore, Subramania Bharti, Ramdas, Habba Khatun,etc. and also the poetry of many foreign languages, e.g. English poets like Wordsworth, Shelley, Keats, Byron, Tennyson, T.S.Eliot, etc, American poets like Walt Whitman, Longfellow,Frost,etc, German poets like Heinrich Heine, Rilke, etc Russian poets like Pushkin, Mayakovsky, etc Chilean poet Pablo Neruda, etc.

In my opinion no poetry in the world expresses the voice of the human heart in such a powerful, yet dignified, manner as Urdu poetry does. In that sense I regard Urdu poetry as the greatest poetry in the world. What a tragedy that this great language, which gave birth to such great poetry was sought to be rejected in the land of its own birth by some biased people.

In my own humble way I am trying to revive the glory of Urdu.
Please read my articles 'What is Urdu?' and 'Great Injustice To Urdu In India'.

On the demise of Justice J.S. Verma

On the demise of Justice J.S. Verma
(former Chief Justice of India)
By Justice Markandey Katju(former Judge, Supreme Court of India)
Justice J.S. Verma, who passed away recently, was one of the giants of the Indian Judiciary,who set very high standards of integrity on the bench & even thereafter He was a role model for many of us, who would often seek his advice even after he had retired. Justices Venkatchaliah, Krishna Iyer, and Verma have always been our father figures.
I remember that when I was on the bench of the High Court and Supreme Court I would often contact him confidentially and seek his guidance.Once while a Supreme Court Judge I received an invitation from a respected dignitary in Delhi for a mushaira he had organized. I am very fond of Urdu poetry, and was seriously intending to go there, but I was in two minds, and hence I telephoned Justice Verma (who had retired a longtimeback) to seek his advice. He told me that a general principle for Judges was that if they were in two minds whether to accept an invitation or not, a Judge should decline it, because by doing so he lost nothing, but by accepting it he took a risk. He also said that Judges should lead a reclusive life if they wanted to be respected.
No one has ever lifted a finger at Justice Verma's integrity. Even after retirement he refused arbitration or consultation work, even though he could have earned crores by it (as many retired Judges are doing). His advice was sought regularly by one and all, including the Government. His completion of the report on crimes against women in 29 days is a model as to how such reports should be made.
In his sad demise the entire legal fraternity as well as the country has suffered a great loss.

Sex workers and Poverty

" Pinhaa tha daam-e-sakht qareeb aashiyaan ke
Udhne hi na paaye the ki giraftaar hum hue "

The above sher (couplet) of the great Urdu poet Mirza Ghalib, was used by me in my order in Budhadev Karmaskar vs. State of West Bengal, Cr.Appeal 135/2010 (see 'sex workers' on my blog justicekatju.blogspot.in).

The word 'pinha' means 'hidden' or 'concealed', 'daam' means 'net', 'sakht' means 'hard' or 'cruel', 'qareeb' means 'near', 'aashiyaan' means 'nest', and 'giraftaar' means 'caught' or 'arrested'.

The sher therefore means :

"Near the nest was the hidden cruel net (of a hunter)
Even before the chick could take its first flight it was caught".

In India perhaps there are 20 million or more sex workers (prostitutes). They have been driven into this profession not because they enjoy it but because of abject poverty. The massive poverty of about 80% of our population of 1200 million people is the real cause of exploitation
of women. To fill their stomachs these poor girls have to sell their bodies. These girls should have had a life of happiness, but instead they get caught in the flesh trade because of their poverty at a very early age and their lives are ruined.

I have compared these innocent young girls to the chick which is caught in the net of a cruel hunter in its very first flight.

Urdu poetry has, among other qualities, a unique feature. An Urdu verse can be given a meaning by the reader which was never intended by the writer. Surely Ghalib, when he wrote the above couplet, never thought it could be applied to sex workers !

Republics in Ancient India

Our country India is a fascinating country. In this piece I wish to refer to the overwhelming material to show that in many regions there were republics, that is, areas without kings, in ancient India.

This material consists of (1) The Mahabharata,(2) The Buddhist Canon,both in Sanskrit and in Pali, (3) The accounts of Greek and Roman historians regarding Alexander the Great's invasion of India in 326 B.C. (4) Panini's Ashtadhyayi, (5) Kautilya's Arthashastra, etc

Let us first take the Mahabharat. In Chapter 107/108 of Shantiparva there is a detailed narration by Bheeshma Pitaamah to Yudhishthir about the features of republics (called ganas) in India. Bheeshma states that when there is unity among the people of a republic that republic becomes powerful and its people become prosperous. Such people are intelligent, brave,enthusiastic, honest, and trained in the use of arms. They do not cheat each other, and help those in distress. This way they prosper.
Having said this Bheeshma then narrates how republics are destroyed :

" Bhedey ganaah vineyshur hi bhinnaastu sujayaah paraih
Tasmaat sanghaatyogen prayateran ganaah sadaa"

I.e. "Republics are destroyed only by internal conflicts between the people
Therefore republics should always seek to maintain good relations among the people"

and also :

"Teshaam ayonyabhinnaanaam swashaktim anutishthataam
Nigrahah panditaih kaaryah kshipramev pradhaanatah"

which means :

" Therefore the wise people in a republic should crush the chiefs of the wicked persons who try to divide the people"

This is a fascinating narrative in the Mahabharat. It shows that in ancient India there were not only kingdoms (like Hastinapur and Indraprastha) but also regions where there was no king but a republic. As to details about the organization and functioning of these republics the material available is vague and scanty, but that there were republics can not be doubted. As long as people of these republics were united they were strong and prosperous, but they became endangered when there were dissensions among the people.

The Buddhist Canon, both in Sanskrit (in which much of Mahayana Buddhist literature was written) and in Pali (in which much of Hinayana literature was written) has extensive reference to republics in India, e.g. the Lichchavi city of Vaishali. Thus in the Pali Buddhist work 'The Mahanibbana Sutra' it is mentioned that when King Ajaatshatru of Magadha was planning to attack the Vajjian democratic republic he sent a messenger to the Buddha for his opinion. Instead of speaking to this messenger, the Buddha said to one of his disciples :" Have you heard Anand that the Vajjians foregather often and frequent the public meetings of their clan ? So long Anand, as the Vajjians so foregather, and so frequent, the public meetings of their clan, so long they may be expected not to decline but to prosper".

Similarly, in the Avadaana Shatak, a Sanskrit Buddhist text of the second century A.D. it is mentioned that a group of merchants went from North India to the Deccan, and were asked by the King of the Deccan as to who was the king who ruled over North India. The merchants replied :
" Deva, kechit deshaah ganaadheenaah, kechit raajaadheenah, iti"
which means :
" Your Majesty, certain areas are under a republican form of government, while others are under kings"

Alexander the Great's invasion of India in 326 B.C. has provided a lot of material to show that there were many parts of India under republican forms of government, not kings. The Greek historian Diodorus Siculus writes that at the time of Alexander's invasion most cities in North West India had democratic forms of government (though some areas were under kings,e.g. Ambhi and Porus) and this is also mentioned by the historian Arian. Alexander's army faced its fiercest resistance from the armies of these republics,e.g. the Mallas, and gained victory only after suffering huge casualties.

Panini and Kautilya have also referred to these republics (ganas) in many parts of India.

I have referred to all this to show that if today's Indian Repulic and its people wish to be strong and prosperous they must be united, and not divided on the basis of religion, caste, language, region, race, etc as some wicked people are trying to do.

Appeal to the President of India

                                                                                                                     April 18, 2013

H.E. The President of India,

Rashtrapati Bhavan,

New Delhi.

Re:       My appeals for pardon/respite for (1)  Issaq Mohammed Hajwane (2) Sharif Abdul Gafoor Parker (3) Zaibunnisa Kazi (4) Devender Pal Singh Bhullar and (5) Sanjay Dutt.

Your Excellency,

            I already sent to you my appeals for pardon/respite to the above mentioned persons, which have been received in your office. I pray that till the decision of my appeals for pardon Your Excellency should grant respite, reprieve or suspension of the sentence of these 5 persons till my pardon appeals are finally decided.

            In this connection I may refer to Article 72 (1) of the Constitution which states:

“The President shall have the power to grant pardons reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”.

            A perusal of Article 72 (1) shows that the President has not only power to grant pardon, but he has also the power to grant respite, reprieve or suspension of the sentence.

            It is quite natural that before Your Excellency takes a final decision on my pardon petition Your Excellency may like to consult legal and administrative experts and would want the opinion of the Prime Minister, whom I met day before yesterday in his office in connection with the same matter. Hence it is quite likely that my pardon appeals may take some time to decide. Hence I respectfully request that Your Excellency may grant respite, reprieves or suspension of the sentence to these persons till the pardons appeal are  decided, otherwise the pardon appeals  may become  infructuous.  Four out of the five persons for whom I appealed for pardon are concerned with the Bombay bomb blast case of 1993. Three of them are very old and may not survive in jail. 

For example, Issaq Mohammed Hajwane is now 89 years of age and I have annexed with my pardon appeal his photographs showing that his body is almost a skeleton and he has to be bodily carried for going to the bath room. Similarly, Gafoor Parker whose photographs were also annexed to my earlier to you is about 80 years age. As regards Zaibunnisa Kazi, she is 73 years old having many medical problems, and can hardly walk and talk. I am afraid these old people will not survive in jail.

As regards Devender Pal Singh Bhullar, if he is hanged my pardon appeal will become infructuous..

I also prayed for pardon to Sanjay Dutt for the reason given in my letter to you dated March 28, 2013.

I therefore once again request you to grant respite, reprieve or suspension of the sentence to the above mention persons till my pardon petitions are decided, and direct that the sentences of these 5 persons by the Supreme Court shall not be implemented till final disposal of my pardon appeals.  

                                                                                                Yours faithfully,

           

                                                                                                (Justice Markandey Katju)

                                                                                                 Former Judge,

                                                                                                Supreme Court of India

                                                                                                New Delhi

                                                                                                

The Transitional Period

"Hai maujazan ek kulzum-e-khoon kaash yahi ho
Aata hai abhi dekhiye kyaa kyaa mere aage "
----- Mirza Ghalib

Ghalib's sher which I have just quoted means :

"Before me is a turbulent sea of blood
But wait and see what is coming ahead"

In other words, worse times are coming in India. This transitional period in our history through which India is passing, from a feudal agricultural to a modern industrial society, is going to be a terrible period, just like the transitional period in European history,when Europe was passing through its transition from a feudal to a modern society, from the 16th to 18th Centuries. That transition was accompanied by tremendous turbulence, turmoil, wars, revolutions, social churning and chaos, intellectual ferment, etc. It was only after going through that fire that modern society emerged in Europe. India is presently going through that fire, that very painful and agonizing period in our history, which, as Ghalib predicted, is going to intensify in the days to come.

One wishes that this transition would take place quickly and peacefully, but unfortunately that is not how history functions. In a historical transition the old society is torn apart and totally uprooted, its values destroyed one by one, and a new society created in its place with new values. That requires a prolonged period of struggle, by the patriotic intellectuals as well as the masses.

When I became a Judge of Allahabad High Court in 1991 I said in my welcome speech to the High Court Bar Association that equity (that is, human feelings) will always influence my judicial verdicts.

I then quoted the following Sanskrit shlokas of Brihaspati :

" Kevalam shaastram aashritya na kartavyo hi nirnayah
Yuktiheene vichhaare tu dharmahaani prajaayate
Saadhu asaadhu, chauro achauro prajaayate vyavahaaratah
Yuktim vinaa vichaare Maandavyasya chaurataam gatah"

which means :

"The decision should not be given by merely following the letter of the law
For if the decision is wholly unreasonable, injustice (dharmahaani) will follow
By merely following the letter of the law a good man may be declared a bad man, and an innocent man a thief
Just as Maandavya, an innocent man, was held to be a thief"

The story of Rishi Maandavya was that one day he was doing meditation in his aashram when a thief, who was fleeing, threw some stolen goods there, and fled. The king's men, who were pursuing the thief, came to the aashram and arrested Rishi Maandavya, who was taken to the king who ordered him to be hanged.

Throughout my judicial career as a Judge for 20 years it was this approach and these shlokas of Brihaspati which guided me. And in my various appeals for pardon to several persons which I made recently it was this spirit which motivated me

Akbar Allahabadi

Akbar Allahabadi (1846-1921) is regarded by many to be a reactionary poet. However, in the poem whose verses follow, he showed himself as surprisingly progressive, and brilliantly captured in verse the coming changes in society in this transitional age.

I quoted many Urdu couplets (shers) in some of my judgments (see my book 'Justice With Urdu' published by Universal Law Publishing Co. Pvt. Ltd. of Delhi) while on the Supreme Court bench. I had thought of quoting Akbar Allahabadi's following verses in some judgment, but this intention could not materialize, because before I could do so I retired on 19.9.2011 at the retirement age of 65. However, I am doing so now :

" Yeh maujooda tareeke raahi-e-mulk-e-adam honge
Nai tehzeeb hogi aur nae saamaan baham honge
Khabar deti hai tehreek-e-hawa tabdeel-e-mausam ki
Khilenge aur hi gul, zamzame bulbul ke kam honge
Badal jaayega meyaar-e-sharaafat chashm-e-duniya mein
Zyaada the jo apne zom mein woh sab se kam honge
Ghuzishta azmaton ke taskare bhi na reh jaayenge
Kitaabon mein hi dafn afsaan-e-jaaho hasham honge
Kisi ko is taghayyur ka na his hogaa na gham hogaa
Hue jis saaz se paida usi ke zeyro bam honge
Tumhe is inqilaab-e-deher ka kya gham hai ai Akbar
Bahut nazdeek hain woh din ki tum hoge na hum honge "

Appeal for Pardon/Commutation of Death Sentence to Devender Pal Singh Bhullar.

​​​​​​​​​April 13, 2013

1. H.E. The President of India,
Rashtrapati Bhavan,
New Delhi

2. The Hon’ble Prime Minister of India,
7, Race Course Road,
New Delhi.

3. The Hon’ble Home Minister of India,
2, Krishna Menon Marg,
New Delhi.

4. Lt. Governor of Delhi
Raj Bhavan,
Delhi.


Re: Appeal for Pardon/Commutation of Death Sentence to Devender Pal Singh Bhullar.

Your Excellency,

​I am appealing to you for Pardon/Commutation of the to death sentence awarded to Devender Pal Singh Bhullar in connection with the 1993 Delhi bomb blast case.

​In its judgment of 2002 by a 2-1 majority the Supreme Court upheld the death sentence to Bhullar. Thereafter, the appeal for mercy under Article 72 Constitution of India was rejected. He then filed a petition in the Hon’ble Supreme Court against the order rejecting his mercy petition on the ground of delay in the proceeding but that petition was rejected by the Supreme Court yesterday. I am appealing to you for Pardon/commutation of the death sentence.

In this connection, I wish to state as follow:
(1) There is nothing in Article 72 Constitution of India to debar a second mercy petition if the first has been rejected.

(2) Article 72 does not state who can make the mercy petition. Hence, I as a citizen of India am also entitled to move this mercy petition.

(3) The reasons for making this mercy petition are as fellow:

(a) By the judgment dated 22.3.2002 the Hon’ble Supreme Court rejected Bhullar’s appeal against his death sentence by a 2-1 majority, not by a unanimous decision. The senior most judge on the bench, Justice M.B. Shah, acquitted Bhullar. I have carefully perused the judgment of Justice M. B. Shah. Justice Shah has noticed that the only evidence against Bhullar is his alleged confessional statement to the investigating office. Justice Shah has observed that “when the rest of the accused who are named in the confessional statement are not convicted or tried, this was not a fit case for convicting the appellant solely on the basis of the so called confessional statement recorded by the police officer”

Justice Shah has noticed in his judgment that there was nothing on record to corroborate the aforesaid alleged confessional statement.

Justice Shah in his judgment has further observed:

“In any set of circumstances, none of the main culprits i.e. Harnaik or Lahoria is convicted. In these set of circumstances, without there being corroborative evidence, it would be difficult to solely rely upon the so-called confessional statement and convict the accused and that too when the confessional statement is recorded by the investigating officer.

 For this purpose, it would be worthwhile to refer to the decision in Topandas v. State of Bombay (AIR 1956 SCC 33 para 6):
“Criminal conspiracy has been defined in Section 120A Penal Code:
“When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.”

By the terms of the definition itself, there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. If therefore, 4 named individuals were charged with having committed the offence under Section 120-B Penal Code and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No. 1 in the case before us, could never be held guilty of the offence of criminal conspiracy.”

The court further discussed the aforesaid question and referred to the decision in R. V. Plummer [1902 (2) KB 339 (C)] and held as under:
“(1902) 2 KB 339 (C) which is cited in support of this proposition was a case in which, on a trial of indictment charging three persons jointly with conspiring together, one person had pleaded guilty and a judgment passed against him, and the other two were acquitted. It was held that the judgment passed against one who had pleaded guilty was bad and could not stand. Lord Justice Wright observed at p. 343:
“There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted in the conviction of the appellant and the acquittal of the other alleged co-conspirators, no judgment could have been passed on the appellant, because the verdict must have regarded as repugnant in finding that there was a criminal agreement between the appellant and the others and none between them and him: see –‘Harison v. Errington’ , (1627) Poph 202 (D), whereupon an indictment of three for riot, two were found not guilty and one guilty, and upon error brought it was held as a “void verdict”, and said to be “like to the case in 11 Hen 4 c.2 conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire.”

In this view of the matter, when rest of the accused who are named in the confessional statement are not convicted or tried, this would not be a fit case for convicting the appellant solely on the basis of so-called confessional statement recorded by the police officer.

Finally, such type of confessional statement as recorded by the investigating officer cannot be the basis for awarding death sentence”.

​It is true that ​the majority view of the bench has to be accepted as the judgment of the court, not the minority view. However, the considerations in pardon proceedings under Article 72/161 of the Constitution are different from those in judicial proceeding. In the Constitution Bench judgment of the Supreme Court in Kehar Singh Vs Union of India A.I.R. 1989 S.C. it was observed:

“We are of the view that it is open to the President in the exercise of the power vested in him by Art. 72 of the Constitution to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. In U.S. v. Benz, 75 L. Ed. 354 at 358 Sutherland, J. observed: "The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is judicial act as much as the imposition of the sentence in the first instance." The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative. In Sarat Chandra Rabha and Others v. Khagendranath Nath and Others, [196] 2 S.C.R. 133 at 138-140, Wanchoo, J. speaking for the Court addressed himself to the question whether the order of remission by the Governor of Assam had the effect of reducing the sentence imposed on the appellant in the same way in which an order of an appellate or revisional court has the effect of reducing the sentence passed by a trial court, and after discussing the law relating to the power to grant pardon, he said:

" ....Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out, and thus in practice to reduce the sentence to the period already undergone, in law the order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the court and the sentence passed by it untouched. In this view of the matter the order of remission passed in this case though it had the effect that the appellant was released from jail before he had served the full sentence of three years' imprisonment and had actually served only about sixteen months' imprisonment, did not in any way affect the order of conviction and sentence passed by the Court which remained as it was .. "

and again:

" .....Now where the sentence imposed by a trial court is varied by way of reduction by the appellate or revisional court, the final sentence is again imposed by the court; but where a sentence imposed by the court is remitted in part under section 401 of the Code of Criminal Procedure that has not the effect in law of reducing the sentence imposed by the court, though in effect the result may be that the convicted person suffers less imprisonment than that imposed by the court. The order of remission affects the execution of the sentence imposed by the court but does not affect the sentence as such, which remains what it was in spite of the order of remission....."

It is apparent that the power under Art. 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court”.

(b) A perusal of the judgment of the Constitution bench (five judge bench) decision by the Supreme Court in Kehar Singh’s case shows that the President can scrutinize the evidence in the case and come to a different conclusion regarding the guilt and sentence of the accused.
Hence even though the judgment of the Supreme is the judgment of the majority of the 3 judge bench in Bhullar’s case, the President can agree with the minority view of Justice Shah.

(c)Bhullar has been in detention since his arrival in India in January 1995 i.e. over 18 years. I am not questioning the Supreme Court verdict delivered yesterday. However I respectfully submit that Bhullar has already suffered prolonged mental agony and trauma for this long period in death row with a damocles sword hanging over his head. Hence in pardon proceeding under Article 72 this is also one of the factors, among others, which the President should take into account in deciding this petition under Article 72.

(d) I also understand that Bhullar has been having some chronic psychiatric problem. In these circumstances, considering all of them cumulatively, I respectfully request Your Excellency to pardon/commute the death sentence of Bhullar who has been on death row for a long period.

I conclude by referring to Portia’s famous speech in Shakespeare’s ‘The Merchant of Venice’ where she pleaded that justice should be tempered with mercy.

Regards,

​​​(Markandey Katju)

​​​​​(Former Judge, Supreme Court of India)​

​​​​

Guftagoo with Markandey Katju

'The Court of Last Resort'

We will proceed slowly in setting up the Court of Last Resort (CLR). The headquarters will be in Delhi, but we propose to set up state units in every state. Most of the work of CLR will be done by the state units, with the centre at Delhi playing an overseeing role. We will set up offices in Delhi and all states, where the complaints can be received. Tens of thousands of complaints will pour in in connection with people in jails (there is so much injustice in India), so we will need lots of volunteers, particularly from youth, academicians, lawyers, media, social activists, professionals, etc who will examine each complaint and send recommendations to the state unit which will then decide the course of action. Mr. Fali Nariman, the eminent Supreme Court lawyer, has agreed to be the Chairman of CLR. Mr. Majeed Memon, the eminent criminal lawyer, will be one of the Vice Chairmen, and Mr. Asif Azmi will be the general secretary. Mr. Mahesh Bhat, the famous film producer and others have agreed to be associated with us. The inaugural function of CLR will be in a press conference at my residence on 15th April at 4.30 p.m. We need the good wishes and support of all enlightened, patriotic and freedom loving people.

I have been asked from where we get the jurisdiction to set up this body ? My answer is : we get our mandate from the people, who are supreme in a democracy.

(To read more about CLR, click here.)

‘The Court of Last Resort’

‘The Court of Last Resort’

It has been felt for quite some time that injustice is being done to a large number of people who have been languishing in jail either as under trials whose cases have not been heard for several years, or who have unjustly remained incarcerated, either because:

      (1)  The police have fabricated evidence against them, or

      (2)  For want of proper legal assistance, or

     (3)  Who have had to spend many years in jail and ultimately found innocent by the court.

Many of such persons in jail belong to minorities who have been accused only on suspicion and on pre-conceived notions that all persons of that community are terrorists. Whenever a bomb blast or such other terrorist event occurs, the police often is unable to trace out the real culprit, and yet it has to show that it has solved the crime. Consequently very often the police rushes to implicate and charge a large number of youths of that minority community on mere suspicion, whose bail application is very often rejected and consequently they have to spend several years in jail. In such matters either the police often fabricates evidence against them to justify their acts and secure conviction, or the cases result in acquittal of innocent accused persons after they have spent several years in jail. A classic case is of that of a young boy Aamir who was 17 years of age when arrested, and who spent 14 years in jail after which he was found innocent.

In the 6^th April 2013 issue of Tehelka there is an excellent article by Shoma Chaudhry entitled , ‘The Fight for Muslims is fundamental for the survival of Democracy’. In this article she has stated that over the past few years TEHELKA journalists have documented hundreds of stories of innocent Muslims languishing in jail after being brutally tortured on flimsy or false charges. Each case hides hair raising stories about prejudice, incompetence and deliberate malafide, and also mentions stories of pain, destroyed lives and hollowed futures.

Shoma writes that innocent Muslims have been jailed with impunity in India over the past decade because it was easy to jail them. Within hours of any terror attack, a bunch of Muslim boys would be arrested, and their names aired in the media as ‘Masterminds’. Their guilt was assumed, it did not need to be proved.

Since 2001 a terrible maxim had seeped into the Indian mainstream: All Muslims may not be terrorist, but all terrorists are Muslims. It did not matter if you caught the wrong ones. Everyone only wanted the illusion of security and “action taken”. Those who raised hard questions were scorned as ‘anti-national’.

In my interview with Karan Thapar on ‘Devil’s Advocate’ I said that within hours of a terrorist attack in India many media channels start showing that an email or SMS has been received from ‘Indian Mujahideen’ or ‘Jaish-e-Muhammad’ or ‘Harkat-ul-Jihad’, or some other organization having a Muslim name, claiming responsibility. Now an email or SMS can be sent by any mischievous person. But by showing this on TV screens, and the next day in print, subtle message is sent that all Muslims are terrorists, and thus the entire community is demonized.

All this is triggering new cycles of hate and revenge. Despair turns citizens into perpetrators, from the hunted to the hunter. Young men who have spent long years in jail cannot find jobs or houses to rent even when acquitted, their families are ostracized, and sisters find themselves unmarriageable because their brothers have been branded as terrorists.

Unless this cycle of hate is now reversed we are heading for terrible times, for injustice breeds hatred and violence

Criminal investigation is a science, but unfortunately in our country the police usually is not trained in scientific investigation nor does it have the equipment for the same. If we read the stories of Sherlock Holmes, we see how Holmes investigates a crime by promptly going on the spot and studying the finger prints, blood stains, soil, ashes, handwriting etc. before coming to a scientific conclusion. In recent times it has been shown on Discovery Channel etc. how the American police investigates a crime. The police reach the spot and collects the traces of the material there including blood stains, fingerprints, ashes, fibres, etc. The finger prints are fed into a computer which is connected to a national computer network, which can often lead to the discovery of the criminal. The blood stains etc. are taken to a laboratory where they are tested for DNA etc. Even a few microscopic fibres can lead to the discovery of the culprit by testing them in a laboratory and thus finding out his identity.

All this is usually absent in our police set up and yet the police has to show that it has solved the crime, otherwise the investigating officer fears suspension for incompetence. Consequently  he either implicates people on suspicion or resorts to the time honoured method of torture or third degree methods to obtain a confession.

All this is leading to injustice on a large scale. We are not blaming the courts for this because they are handicapped due to the enormous burden of litigation for which cases linger on for years and years. Also, unfortunately nowadays the real eye witnesses are afraid to give evidence out of fear of threats or harassment, and hence the police often fabricates evidence.

The result of all this is that in our country gross injustice is often done, particularly to minorities, and the time has now come when this great wrong must be set right. Our country is a country of great diversity and therefore no community must be made to feel that it is being selectively victimised.

This being the situation it has been decided by a group of people headed by Justice Markandey Katju, former Judge, Supreme Court of India, and the eminent lawyer Mr. Majeed Memon, the film producer and social activist Mr. Mahesh Bhatt, Mr. Asif Azmi and other like-minded people to setup an organisation called ‘The Court of Last Resort’.

The concept of this idea has come from an organisation founded way back in 1948 by the eminent American criminal lawyer Erle Stanley Gardner, who later wrote the Perry Mason novels. In his book ‘The Court of Last Resort’, Erle Stanley Gardner mentions about the organisation which he set up consisting  mainly of lawyers, who took up cases of persons whom they thought  were wrongly accused or unjustly convicted. The organisation which we are starting in India will bear the same name ‘The Court of Last Resort’ and have its headquarters in New Delhi, with Justice Katju as its patron and will have state units in all states of India. Such state units will be authorised to appoint district units.

‘The Court of Last Resort’ will have the following objects:

(1)  To ask the concerned authorities in various states about details of prisoners languishing in jails, particularly those who have been in jail for long periods, including both under trials and convicts. The R.T.I. Act can be used in this connection.

(2)  To examine the cases of persons, whether of our own accord, or on the representation of someone, and find out whether there has been injustice in their case, either by the delay in holding the trial, or by a wrong conviction, and do the needful in this connection, including applying for bail.

(3)  To apply for pardon, respite, suspension or reduction of sentence   to the President or Governor as the case may be.

(4)  To create awareness in the public about this gross injustice which is being done to a large number of people.

(5)  To educate the police about this state of affairs and change its mentality.

(6)  To approach the other concerned authorities with the aim of rectifying this injustice to a large section of people.

(7)  To do such other acts as may be necessary for this purpose.

The organisation appeals to the like-minded people among the public, particularly to lawyers, retired judges, academicians, students, social activists, professionals, media persons , etc. to help and get associated with this enterprise.

The formal inauguration of this body will be done through a press conference in the near future.

It is made clear that this is being  done for no personal benefit to any of us but purely because of our sincere desire that justice should be done to everybody, and no section of society is made to feel that it is being discriminated against.