contempt of court? really?

Oh just now i read the article by Arundhati Roy published in Outlook. I am preparing for judicial services for an year. I have been studying law for last  8 years and to be very honest this time ( I love her way of expression) I couldn’t find anything in her article which can offend sensibilities of a person belonging to right wing. At most they can blame her for drawing bad analogy or saying what is not true. But contempt of court? Really? I am confused whether the judges are insensitive (for cancelling Prof. Saibaba’s bail)  or  hyper-sensitive?

by the way here is the link o the article :http://www.outlookindia.com/article/professor-pow/294265

Court disregarding its constitutional duty

Law is no stranger to prejudice or moral anxieties. Judicial pronouncements can sometimes cast aside constitutional values and defer to societal biases masquerading as righteousness. The recurrence of “collective conscience” in terror cases, where the threat of terrorism looms so large that it can overshadow the lack of evidence, is only too well known. Even so, the December 23 order of the Nagpur bench of the Bombay High Court takes one’s breath away. It rejected the regular bail plea moved by the lawyers of Delhi University professor, Saibaba, cancelled his interim bail which allowed him to receive treatment till December 31, and ordered him to surrender within 48 hours. Besides, the court issued a notice of criminal contempt to Arundhati Roy for her article, ‘Professor, POW’, published in Outlook magazine. The order will be remembered for its naked display of contempt for civil rights, partisanship and renunciation of judicial independence.

Rajiv killers cannot be freed without Centre’s “concurrence” as CBI was probe agency: SC

I am so tired. But will read this one. this is last judgement for today.

case: Union Of India vs V. Sriharan @Murugan & Ors 

It all began on February 18 last year when the apex court commuted the death sentences of Santhan, Murugan and Perarivalan to life sentences in view of the delay in deciding their mercy pleas and left it to the “appropriate government” to consider granting them remission. Jayalalithaa (chief minister of Tamil Nadu0 seized the opportunity and announced that she would release all seven convicts.

it was asserted in the letter issued by state govt.  that since the crime was investigated by the Central Bureau of Investigation (CBI) and as per Section 435 of the Code of Criminal Procedure, 1973, the State Government, while exercising its power under Section 432 of the Code, must act after consultation with the Central Government, accordingly, it requested to indicate the views of the Union of India within three days on the proposal to release the seven persons mentioned above.

Writ petition was filed under Article 32 of constitution seeking quashing of that letter. ( why under article 32? it should have been instead under article 131)
Grounds: what is proposed to be done by the State of Tamil Nadu in exercise of power of remission in the present case is illegal and without jurisdiction because (1) The State Government is not the ‘appropriate Government’ in the present case; (2) Alternatively, without prejudice, the proposal by the State Government is contrary to law, and does not follow the procedure set out under the Code.
Reasons:
1. a bare reading of the definition of “appropriate Government” under Section 432(7) of the Code reveals that in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the “appropriate Government” in that respect would be the Central Government. It is further pointed out that as per the proviso to Article 73, the executive power of the Union referred to in Article 73(1)(a) shall not, save as expressly provided in the Constitution or in any law made by the Parliament, extend in any State to matters with respect to which the Legislature of the State also has power to make laws. It is argued that the proviso to Article 73 is excluded by Section 432(7) of the Code as it is only applicable where there is no express provision to maintain the executive power of the Union. Similarly, proviso to Article 162 of the Constitution limits the executive power of the State with respect to any matter where both the Legislature of the State and the Parliament have power to make laws, where the Constitution or any law has expressly conferred executive power upon the Union. Thus, it was submitted that the proviso contemplates that the executive power of the State may be overcome by the executive power of the Union through the provisions of the Constitution or any other law made by the Parliament. The Code is, therefore, one avenue through which this may be done and has been exercised through Section 432(7) to give primacy to the executive power of the Union. Learned Attorney General further submitted that based on a reading of Articles 73 and 162 read with Section 432(7) of the Code, the “appropriate Government” in the present case would be the Central Government, as the Indian Penal Code falls under the concurrent List, to which the executive power of the Union also extends.
2. The entire investigation of the case was handed over to the CBI, at this stage, the State cannot claim that it is the appropriate Government.
3. The State Government, without considering the merits and facts of the case, hastily took a decision to remit the sentence and release seven convicts which is contrary to the statutory provisions and also to the law laid down by this Court.
4. State Government could not have suo motu, without an application, initiated the process of remitting the sentence and releasing the convicts. and relied on the decision of this Court in Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294
5. Alternatively, it is submitted that assuming Section 435(2) of the Code is applicable, the use of the term ‘consultation’ under Section 435(1) of the Code should be interpreted to mean ‘concurrence’.
6. In addition, submitted that once the death sentence of a convict has been commuted into life imprisonment, the same has to be interpreted to mean the entire life of the convict and the executive cannot exercise the power of remission of sentence thereafter and for that relied upon Swamy Shraddananda vs. State of Karnataka, (2008)
thus court has been called upon to decide the legitimacy of the proposal of the State Government to release Respondent Nos. 1 to 7, who are facing life sentence.
but court didn’t make any determination and framed few question and directed the matter to be decided by larger bench. ( i need to check it again because i am not sure)
UPDATE
Verdict of constitutional bench on questions referred to it by three judges bench is out in public domain and to my surprise it has gone to an extent of creating a new category of punishment, taking away power of governor vested in him by the Constitution. Its a huge judgement. I doubt i will be able to read the entire judgement but I will try.
Case:

Spanish Court Seeks Arrest of Former Chinese Leaders in Tibet Case

Spain’s National Court has ordered arrest warrants for former Chinese President Jiang Zemin and four other officials on suspicion of involvement in alleged genocide in Tibet. The Tibet Support Committee filed suit against the former Chinese leaders in Spain because the European country enables its courts to prosecute alleged war crimes and genocide committed anywhere, provided the victims include Spanish citizens. One of the co-plaintiffs is a Tibetan Buddhist monk with Spanish citizenship, Thubten Wangchen.

Tibet Support Committee head Alan Cantos told VOA another reason his group is seeking prosecutions in Spain is that Chinese officials cannot be tried at the International Criminal Court. China has refused to ratify the Rome Statute that established the Netherlands-based court in 2002.

Spain’s policy of granting universal jurisdiction to courts in war crimes and genocide cases allowed a Spanish judge to pursue charges against the late former Chilean president Augusto Pinochet. British authorities detained the former autocratic ruler in London in 1998 in connection with that case, but later released him on medical grounds.

One notable success for Spain’s universal jurisdiction system was the conviction of former Argentinean naval officer Adolfo Scilingo in 2005 for crimes against humanity. After he traveled to Spain voluntarily, a Spanish court sentenced Scilingo to hundreds of years in prison for complicity in throwing 30 people to their deaths from planes when Argentina was under military rule from 1976 to 1983, a period known as the “dirty war.”

http://www.voanews.com/content/spanish-court-seeks-arrest-of-former-chinese-leaders-in-tibet-case/1793614.html

Tripoli cleared to try former spy chief

The chief prosecutor of the International Criminal Court announced she will not appeal last month’s ruling by judges at The Hague-based court that Libya is free to try Abdullah al-Senussi, Muammar Gaddafi’s former spy chief.

According to a report on the News24 site, the judges last month announced that since Libya was able and willing to give Gaddafi’s head of intelligence a fair trial on charges that were similar to the ICC’s, there was no need to transfer him to the ICC’s custody. Senussi’s lawyers have said they will appeal that ruling. ‘After fully studying the decision, my office has concluded that there is no legal basis for appeal,’ ICC chief prosecutor Fatou Bensouda told the UN Security Council during a meeting on Libya.

source: http://www.legalbrief.co.za/article.php?story=20131118083105161

Persecution or Justice?

A trial in Bangladesh, which brought death sentences for 152 border guards accused of murder and arson in a mutiny in 2009, failed to meet international law standards, United Nations human rights chief Navi Pillay said on Wednesday.

Citing allegations that many of the defendants in the mass trial, which ended on Tuesday, had been abused and tortured while in jail, she also called for a full independent investigation into how the accused were treated.

“The crimes committed during the mutiny were utterly reprehensible and heinous,” the former South African high court and International Criminal Court judge said in a statement.

But she added: “Justice will not be achieved by conducting mass trials of hundreds of individuals, torturing suspects in custody and sentencing them to death after trials that failed to meet the most fundamental standards of due process.”

A total of 171 of the mutineers, whose main complaint was that their regular army commanders were better paid and housed, were acquitted, while the remainder of the some 4,000 defendants were given jail terms of up to 10 years and fines.

At the same time, she voiced concern about the conduct of the International Crimes Tribunal (ICT) set up by the Bangladesh government in 2010 to try people accused of atrocities during the 1971 war of independence from Pakistan.

The ICT, she said, should be an important means to tackle impunity for those atrocities and provide redress to the victims, but its proceedings had to meet the highest standards if they were to enforce the rule of law.

The Tribunal has sentenced 7 people to death, but Pillay called on the Bangladesh government not to carry out the sentences due to concerns about the fairness of the trials.

Source: http://www.euronews.com/newswires/2197292-un-rights-chief-says-bangladesh-trials-unfair/

Jamaat-e-Islami ineligible for next elections: Bangladesh EC

In a major blow to the fundamentalist Jamaat-e-Islami ahead of polls in Bangladesh, the Election Commission on Thursday said the party cannot participate in the general election in line with a court order. Election Commissioner Shah Nawaz said the Jamaat would not be able to participate in the polls as the High Court had declared its registration illegal.

Banning the Jamaat may find support in some sections of Bangladesh’s civil society, but the action reeks of political persecution, coming as it does on the eve of elections. If the Jamaat’s attempts at stoking communalism for electoral gain are detestable, the guardians of Bangladesh’s secular character must ask themselves why it has been successful in this pursuit. In June, the BNP-Jamaat alliance trumped the AL comprehensively in elections to four major city corporations. Thanks to its lacklustre performance in office, Sheikh Hasina’s government has grown increasingly unpopular; banning the Jamaat will not resuscitate its poll prospects. In fact, doing so will not only deepen the theological-secular divide in Bangladesh, but also ensure the scars of 1971 remain open.

Source: http://www.indianexpress.com/news/jamaateislami-ineligible-for-next-elections-bangladesh-ec/1191989/?SocialMedia

http://www.thehindu.com/opinion/editorial/an-unwarranted-ban/article4996503.ece