• By providing key dates and events on R G Kar Hospital case this article seeks to provoke thought and looks at deeper issues w.r.t. the Supreme Court.

Rape and murder of the doctor at Kolkata’s R G Kar Hospital shook the nation as Nirbhaya’s death did. Violence is not new to today’s West Bengal. Post every election there is large scale violence. Read a Primer Within days if not months public, courts and politicians forget. For the affected families it is a permanent loss just like it is for the parents of Abhaya. So far rapes in West Bengal were mainly limited to rural areas, this one is in Kolkata. Such huge grassroots people's protests have not been seen in recent times.

Key Dates

The murder took place on Friday August 9, Calcutta High Court (HC) ordered Central Bureau Investigation (CBI) probe on Tuesday 13/8/, vandalism at hospital on 15/8/, HC questions state government on timing and need of renovation work on 16/8. Source Economic Times

Read   trauma faced during late night attack on hospital   Read   Fear gripped campus, only 17 out of 160 women in hostel 23/8/ report

The Supreme Court registered a suo motu case on Sunday August 18, 2024 with the first hearing on Tuesday 20/8/. During hearing it announced formation of a ten member National Task Force to “work out modalities for safety at workspace for doctors.” Source and asked CBI to file status report by 22/8/. At 22/8/ hearing it requested protesting doctors of R G Kar to call off their strike.

On 22/8/ “West Bengal Chief Minister urged Prime Minister Modi to bring in a stringent central law paving the way for a 15-day trial and “exemplary punishment” in rape cases.” Source Indian Express

22/8/ proceedings in SC, “We direct that the Secretary of the Union Ministry of Health engages with the Chief Secretaries of the State and Director Generals of Police to ensure that the State Governments and UTs put into place such basic requirements pending the report of the Task Force to have address the concerns of doctors over their safety.” Source Live Law

“Justice Chandrachud said the court would not just issue guidelines on the basis of the NTF’s recommendations but also “enforce implementation” of the measures suggested. Pending the submission of the report of the NTF, all State Governments and Union Territories shall be alert to any apprehended violations or breaches of safety in medical establishments” Source Telegraph India

A 151 member CISF team is placed at R G Kar Hospital. 22/8/ report

Read  Kolkata has a dark legacy of dead body business “In an exclusive with India Today, Ali revealed that Ghosh was allegedly entangled in a sinister operation, trafficking biomedical waste and medical supplies across the border to Bangladesh.” 22/8/ report in Firstpost.com

Next SC hearing is on September 5. 

Observations and Thoughts

1. When the matter was before the Kolkata High Court who had ordered a CBI investigation, was there a need for the SC to take up the matter suo motu and spend valuable time on 20/8/, 22/8/ and subsequently esp. when more than 60,000 cases are pending in SC.

Can one question SC’s decision without incurring SC wrath?

Is it appropriate for a Constitutional Court to get into rape/murder cases?

Hear 45 minute video of 22/8/ proceedings in SC or Hear 11 hours video

Apoorvanand wrote in the TheWire.in, “It was, to put it bluntly, a pitiable attempt to gather brownie points for itself in the case without making any investment” Read   Why did the SC need to hear the RG Kar case

Has the SC undermined the HC even though its intention seems above board?

Moreover, is the SC superior to HC in criminal cases?

Recently, “Justice Sehrawat had also stated that the apex court tends to consider itself as more “Supreme” than it actually is and views High Courts as being less “high” than they are constitutionally.” Source BarnBench SC expunged the comments of the judge from the order.

SC could have asked for weekly updates from HC and CBI and kept itself abreast. If things were going wrong, then an intervention might be warranted, that too after a warning.

2. When the rape and violence was localised to Kolkata public wish to know the reason why the SC chose to appoint a National Task Force for safety of women doctors esp. when similar incidents have not occurred in other states.

As if taking a cue, West Bengal Chief Minister asked Prime Minister Modi to bring in a Central Law for rape cases! Wish the respected CM managed her state well before advising the PM. This approach is called ‘aggression is the best form of defence’.

3. This National Task Force, even if it takes inputs from stakeholders from across India, is a top down approach. Every state, city has its own nuances. It might have been better to let each state submit its Action Plan in this respect.

The CJI said that SC would ensure NTF recommendations are enforced. It would be interesting to know how SC proposes to do so across 29 states without making itself an alternate power centre.   

4. Taking the case suo motu even before waiting for the Centre to react to the events unfolding in West Bengal and thereafter issuing instructions including to Union Secretary of Health can be construed to be a case of judicial over reach!

5. Health and Law and Order are both state subjects under the Constitution.

West Bengal might under SC directive and being under public pressure accept posting of CISF at the hospital but few states would want CISF to guard all their hospitals esp. when no similar incident has taken place. If states agree it would require a Constitutional Amendment, the 107^th. What happens if the public of West Bengal want Central Forces in every institution? Other hospitals in the state might want Central Forces too. How would such requests be dealt with? 

Who is going to bear the cost of CISF deployment?

Moreover, CISF does not have the manpower to guard all hospitals nationwide.

6. If the state had failed to initiate action against the accused in this, a SC monitored probe is warranted. In this case, CBI is on the job.

7. By common understanding Courts are meant to administer and interpret law, not get into governance.

8. The Firstpost quoted above refers to trafficking to Bangladesh. This might involve money laundering and relations with a third country. Does SC wish to monitor that probe too?

Pending Cases in Supreme Court referred to above

As per the National Judicial Data Grid (viewed on 23/8/24 at 12.52 pm) there were 82,647 pending cases of which of which civil were 64,877, the balance being criminal. Read   80,221 cases pending at end of January 2024 “The SC maintained its steady disposal rate January 2024, leading to a reduction in pendency numbers from December 2023.” Also read Indian Express report

It is not as if such large number of cases pending is a recent phenomenon. Here are some numbers from my earlier articles i.e. before NJDG.

As of May 1, 2021 there were 67,898 Pending Matters in SC. (65,086 as on 1.1.21, 62,084 as on 1.9.20, 59,850 on 2.1.20, 57,346 on 1.1.2019). Source Pending matters on 1/11/18 were 56,320. Source Pending matters as on 1/5/2017 were 60,517 down from 65,970 as on 1/7/2014. Source

Former President Mukherjee said in 2016, “Justice delayed is justice denied.”

Delay in court makes it difficult to enforce contracts and is a factor in the World Bank's rankings on ease of doing business. An efficient judicial system shall improve ease of doing business thereby attracting foreign investment and reducing corruption. This would eventually create jobs.

The former Chief Justice of India, Ranjan Gogoi showed, in the Ayodhya case, that when the SC wishes to close a case in a time bound manner it can do so.

To be fair the CJI said in 2024 that, “People get fed up with court proceedings, process becomes punishment.” Source

Can the SC hold a press conference and upload on SC website, a time bound action plan to clear backlog. SC must work with the government to effect legislative changes that could help reduce backlog. Being in perpetual conflict reduces effectiveness of all.

Former secretary-general of the Lok Sabha Subhash C Kashyap wrote in Hindustan Times, “No organ or institution can, therefore, cast itself in the role of a conscience-keeper of the nation or of a superior which can call the duly elected government to order.”

There are three arms of governance i.e. Executive, Legislature and Judiciary. The first two are accountable to the people of India.

Whom is the Higher Judiciary accountable to? 

It is not accountable to the people because there is no framework to measure accountability and is not provided in the Constitution.

It cannot be accountable to the Constitution because the book cannot give it feedback and question its decisions. Moreover, the SC interprets the Constitution. So can an interpreter of document be appraised by the document?

Unless this contradiction is solved, it is unlikely that things will change.

The purpose of this article is to provoke thought and not cast aspersions on the judiciary or any judge/individual living or dead. Errors if any are without malafide intent.

Pray for Abhaya’s soul. May the guilty be punished? May West Bengal give up its violent ways? 

Love and Light.

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5. Reading higher judiciary pay right

6. Can we expect some Accountability from the SC

7. Will the SC order on Haldwani encourage Encroachment of Government Land

8. Decoding Vaccine Pricing and Supply

9. Efficient judicial system shall improve ease of doing business