Introspection time
V. VENKATESAN in New Delhi IN THE FRONTLINE
The Supreme Court makes stringent observations against its own tendency to compromise the interests of workers.
OBSERVATIONS of the court, which are not necessary to reach a decision in the case before it, are called obiter dicta. They are non-binding elements of the judgment or order of the court even though they may be of persuasive value.
In a recent case, a two-judge Bench of the Supreme Court made stringent observations against the court’s two-decade-old tendency to compromise the interests of workers in order to facilitate economic reforms and globalisation. Although the Bench comprising Justices G.S. Singhvi and Asok Kumar Ganguly couched its observations in general terms, it was obvious that they were expressing their extreme displeasure over the number of judgments rendered by the Supreme Court’s bigger Benches, including Constitution Benches comprising five judges, against labour.
In their two separate but concurring orders in Harjinder Singh vs Punjab State Warehousing Corporation, pronounced on January 5, Justices Singhvi and Ganguly articulated the pro-labour philosophy of the Constitution in refreshingly lucid terms, even while deciding the case before them in accordance with facts, law and precedents.
Harjinder Singh was employed with the Punjab State Warehousing Corporation (PSWC) as work charge motor mate from March 5, 1986. On October 3 that year, he was appointed work munshi in the pay scale of Rs.350-525 for a period of three months. On February 5, 1987, his pay scale was upgraded to Rs.400-600 for a period of three months. Though his specified tenure ended on May 4, 1987, he was continued in service until July 5, 1988, when the Managing Director of the PSWC issued one month’s notice seeking to terminate his service by way of retrenchment.
Harjinder Singh moved the Punjab and Haryana High Court and obtained a stay on the notice. The High Court vacated the stay when Harjinder Singh wanted to avail himself of remedy under the Industrial Disputes Act (IDA), 1947, and withdraw his petition with the High Court.
Meanwhile, on November 26, 1992, the Managing Director of the PSWC retrenched Harjinder Singh and 21 other workmen by giving them one month’s pay and allowances in lieu of notice under the IDA.
The Government of Punjab referred Harjinder Singh’s industrial dispute to the labour court. Harjinder Singh challenged his retrenchment on the grounds that persons junior to him were retained in service, thus violating the mandate of the IDA. The PSWC, in its reply, contended that he was retrenched because the projects on which he was employed had been completed. On December 15, 1999, the labour court ordered Harjinder Singh’s reinstatement with 50 per cent back wages because the PSWC had violated the principle of equality enshrined in Section 25G of the IDA by allowing persons junior to him to continue in service.
The PSWC challenged the labour court’s award in the Punjab and Haryana High Court on the grounds that Harjinder Singh was not a regular employee and that there was no post against which he could be reinstated. The High Court disapproved the award of reinstatement on the premise that his initial appointment was against the law. The High Court, therefore, substituted the award of reinstatement and 50 per cent back wages with an order to pay Rs.87,582 by way of compensation.
The Supreme Court, in its order, held that the High Court had unjustifiably overturned an otherwise well-reasoned award passed by the labour court, thus depriving Harjinder Singh of what might be the only source of his own sustenance and that of his family. The Supreme Court also found that the High Court had erroneously assumed that he was a daily wage employee.
It would have been sufficient for the Supreme Court Bench to dispose of the case before it by restoring the award of the labour court in favour of Harjinder Singh and ordering the PSWC to pay him legal costs of Rs.25,000, as it did in its order. But, interestingly, the Bench found it necessary to introspect and make several observations that went against the general trend of many anti-labour judgments of the Supreme Court in recent years.
The two-judge Bench might have been constrained to avoid – in view of judicial discipline – mentioning judgments delivered by previous Benches that went against the interests of labour. But the message was unmistakable and amounted to a forceful indictment of the previous Benches.
Justice Singhvi thus observed: “In matters like the present one, the High Courts are duty bound to keep in mind that the IDA and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV (Directive Principles) thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the state should secure a social order for the promotion of welfare of the people…and also ensure that the workers get their dues.”
The above observations were contrary to what the Supreme Court’s five-judge Constitution Bench held in State of Uttar Pradesh vs Jai Bir Singh (delivered on May 5, 2005). The Bench in this case disagreed with Justice V.R. Krishna Iyer’s pro-labour judgment in the Bangalore Water Supply and Sewerage Board case (delivered by a Bench of seven judges in 1978), and referred it for reconsideration by a larger Bench.
While doing so, the five-judge Bench said: “…The statute under consideration [IDA] cannot be looked at only as a worker-oriented statute. The main aim of the statute as is evident from its preamble and various provisions contained therein is to regulate and harmonise relationships between employers and employees for maintaining industrial peace and social harmony.”
The issue before the Bench was the definition of the word ‘industry’. In the Bangalore Water Supply case, the Supreme Court suggested an expansive definition. Nearly three decades later, the court appeared to be in favour of a restrictive definition in order to exempt many areas of industrial activity from the purview of the IDA and its worker-protective umbrella.
In the Jai Bir Singh case, the Bench further observed:
“It is experienced by all dealing in industrial law that overemphasis on the rights of the workers and undue curtailment of the rights of the employers to organise their business, through employment and non-employment, have given rise to a large number of industrial and labour claims resulting in awards granting huge amounts of back wages for past years, allegedly as legitimate dues of the workers, who are found to have been illegally terminated or retrenched. An over expansive interpretation of the definition of ‘industry’ might be a deterrent to private enterprise in India where public employment opportunities are scarce.”
The observations of the Singhvi-Ganguly Bench assume significance because the nine-judge Bench to reconsider the Supreme Court’s judgment in the Bangalore Water Supply case has not yet been constituted by the Chief Justice of India (CJI). The current CJI, Justice K.G. Balakrishnan, was part of the five-judge Constitution Bench in the Jai Bir Singh case which referred the Bangalore Water Supply judgment for reconsideration by a nine-judge Bench, despite opposition from counsel representing the interests of labour.
Justice Singhvi recalled that in the 1970s, 1980s and 1990s, the courts repeatedly negated the doctrine of laissez-faire and the theory of hire and fire. But, he deplored, that of late there had been a visible shift in the courts’ approach in dealing with cases involving the interpretation of social welfare legislation. The mantras of globalisation and liberalisation were fast becoming the raison d’etre of the judicial process and an impression had been created that the constitutional courts were no longer sympathetic to the plight of industrial and unorganised workers, he pointed out.
Observers point out that Justice Singhvi perhaps had in mind the five-judge Constitution Bench’s decision in the Uma Devi case in 2006. In this case, the court held that a person who had temporarily or casually got employed could not be directed to be continued permanently. Although he did not specifically refer to this case, his disagreement with the court’s judgment in Uma Devi was apparent in this sentence in his order:
“In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating bylanes and sidelanes in the jurisprudence developed by this court [emphasis added] in three decades.”
He continued: “The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea…ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.”
Justice Singhvi reminded the Supreme Court and the High Courts that if a man was deprived of his livelihood, he was deprived of all his fundamental and constitutional rights, and for him the goal of social and economic justice, equality of status and of opportunity, and the freedoms enshrined in the Constitution remained illusory.
Justice Ganguly’s observations were no less forceful than Justice Singhvi’s. He said: “If the judges fail to discharge their duty in making an effort to make the preambular promise a reality, they fail to uphold and abide by the Constitution, which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this court.”
He emphasised that the court had a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so, this court (emphasis added) should make an effort to protect the rights of the weaker sections of society in view of the clear constitutional mandate, he said.
Justice Ganguly warned: “Any attempt to dilute the constitutional imperatives in order to promote the so-called trends of ‘globalisation’ may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal.”
He recalled Rabindranath Tagore’s reference to eventualities that might visit us in our mad rush to ape Western ways of life. He concluded that at this critical juncture, the judges’ duty was to uphold the constitutional focus on social justice without being in any way misled by the glitz and glare of globalisation.
Observers wonder whether the remarks of the Singhvi-Ganguly Bench will mark a real shift in the court’s attitude to labour issues or should be just seen as a flash in the pan.
http://www.hinduonnet.com/fline/stories/20100226270403300.htm
Dangers within
R.K. RAGHAVAN IN THE FRONTLINE
Justice J.S. Verma’s recent lecture was another reminder of the many dangers that the judiciary faces and the need for introspection and house-cleaning.
The process of appointment of judges of the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment… There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India… If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment… non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible.
— Supreme Court of India in the Second Judges Case (AIR 1994 SC 268)
IT was 16 years ago that the Supreme Court of India gave this ruling in what is still regarded a landmark pronouncement. This was meant essentially to send out a strong signal to both the executive and judiciary that there cannot be and should not be any dilution of the standards set for judicial appointments.
SUPREME COURT OF INDIA
The unmistakable message was that there should be neither political nor personal prejudices in the matter of choosing judges for the highest court of the land. By the same logic, the inference was that happenings impinging the image of the judiciary could not be swept under the carpet as they rightly fell within the public domain.
Ironically, until a few decades ago, it was almost taboo to discuss the judiciary in critical terms, either for its out-of-the-box rulings or for some apparently dubious decisions. Sedate and non-controversial comments were therefore the order of the day. Even the odd one who dared to take a dig at the hallowed institution couched his or her words in utterly ambivalent and defensive language so that he or she could still get away if hauled up by the lordships for contempt.
Those were the days when the contempt law was abused, and some judges went to utterly ridiculous limits. I remember one judge holding court on a railway platform to indict a station master for contempt, all for not providing a berth to a judge on a packed train. We have come a long way since those eminently forgettable days. Now one can comment fearlessly on both judges and judgments, as long as it is based on provable facts and amounts to reasonable criticism in public interest. The rule of prudence, however, has always been: you can criticise a judgment on its merits or shortcomings, but never question the motive of a judge in arriving at his or her conclusions. Also, when it comes to assailing the character of a judge, truth alone may not always be justification enough for levelling allegations.
Although judicial rulings on this subject are somewhat divided, I now see a lot of bold, meaningful and generally responsible writing that is extremely critical of the judiciary but which is considered appropriate and necessary to promote and preserve high standards of probity. Such criticism is also considered to be in tune with the widely shared perception that transparency is the hallmark of all modern public bodies. The judiciary is no longer the holy cow that it used to be and is open to clinical analysis.
In this context, the recent ruling of the Delhi High Court that the Right to Information Act was as much applicable to the Supreme Court as it was to the lower judiciary has been hailed by many. The Supreme Court is scheduled to take up this High Court ruling, in what is expected to be a full Bench sitting. Its outcome could form a watershed in the history of the Indian judiciary. It is on that basis alone that international evaluation of our judiciary could well proceed in the years to come.
The immediate provocation for my writing on this contentious subject of judicial standards and accountability and their corollary, that is, judicial independence, is a brilliant and most convincing talk that was delivered recently in Chennai by Justice J.S. Verma, former Chief Justice of India and Chairman of the National Human Rights Commission (NHRC).
The Govind Swaminathan Foundation, which organised the lecture, conferred on Justice Verma an award to recognise his contribution to legal ethics in the country. (Govind Swaminathan, an eminent barrister in the 1960s and 1970s, rose to be the Advocate-General of the State. An affable gentleman, he left a deep impression on the Madras Bar for his outstanding advocacy and faith in legal rectitude.)
In the view of a majority who were present at the Madras High Court that evening, none better than Justice Verma could have been chosen for the honour. His observations, in the Second Judges Case and the Hawala case, in the Supreme Court and directives to the executive both at the Centre and in States, when he was chairing the NHRC, speak for themselves. His clarity and fearlessness are regarded as something worthy of emulation by all those who aspire to climb the heights of excellence in the judiciary and the Bar.
Justice Verma’s lecture was forthright and free of any jargon that could obfuscate the main theme, that is, the judiciary presently faced many dangers to its credibility, and it was required to do a lot of introspection and house-cleaning for clearing doubts arising from a few recent unsavoury incidents. Justice Verma obviously had the Justice Nirmal Yadav and Justice P.D. Dinakaran controversies in mind. “I am troubled” was the refrain that one heard right through his commentary on the judiciary. Coming as it did from a man of Justice Verma’s stature and reputation, we can hardly ignore the warning.
Established procedures for both judicial appointments and inquiries into alleged misconduct by judges received major attention from Justice Verma. Notwithstanding some solid processes that have come into being, the popular impression was that these are flawed and require continual finetuning. He sought to clarify misconceptions that after the Second Judges Case, the executive did not have any role at all in the matter of appointments. It was true that the veto power given to the executive in the First Judges Case (1982) was taken away by the Second Judges Case (1994). But a reading of the latter judgment would highlight the fact that the process of appointment was ‘participatory’, one in which the executive was also required to bring in its inputs, especially in the matter of ensuring that the appointee had no adverse character and antecedents.
In Justice Verma’s view, the current problem is not one which arises from the enormous authority given to the Supreme Court collegium by the Second Judges ruling. It is rather from the application of that judgment and dissemination of the wrong impression that once the collegium makes its recommendation, it was absolutely binding on the executive, even if the collegium’s recommendation was not unanimous.
Justice Verma went on to say: “….the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc., are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous, does not bind the executive to make the appointment.”
Justice Verma could not have been more lucid on a subject that generates a controversy every other day. This assumes importance especially in the context of some jurists of unimpeachable integrity questioning the quality of appointments made after the Second Judges Case. The media would do well to keep in mind this interpretation by a judge who was part of the Bench that delivered the judgment before assailing the executive each time a collegium recommendation is held up either in the Ministry of Law or in the Rashtrapati Bhavan.
Justice Verma did not pull any punches also while commenting on matters related to misconduct by judges and investigations thereof. He recalled how he had been pleading for years, especially after the K. Veerasami case, that self-regulation by the judiciary was preferable to any external probe. He was for a clear-cut legislation on the subject, which left little scope for the executive to misuse the opportunity provided by misconduct of some judges and drive the judiciary to a tight corner.
Justice Verma told the audience that the framework for such a legislation should have come from the judiciary, instead of the executive, and that too years ago. He feared that the former’s failure had allowed the initiative to go into the hands of the executive. In effect, what the Constitution had denied in terms of authority over the judiciary had now been obtained by the executive by the sheer default of the former.
Justice Verma spoke with passion on a subject that may never lose its relevance. He spoke also with anguish that recent happenings had eroded the credibility of an arm of the state, whose crucial role had a definite bearing on the stability of our democracy. There may be a few, just a few, in the judiciary who could advocate ignoring Justice Verma. That is an easy option. In the long run, however, such negativism could prove fatal to the cause of democracy and human rights. Viewed from this perspective, everyone in the world of justice needs to study Justice Verma’s speech and draw appropriate lessons.
http://www.hinduonnet.com/fline/stories/20100226270410900.htm
The Republic in retrospect
GRANVILLE AUSTIN IN THE FRONTLINE
At 60 the Indian Republic has come a long way, but it has to travel a greater distance to achieve the goals set in the Constitution.
ANY people that sets out to govern itself assumes a monumental task. Who are “we?” Are “we” a congeries of groups, or something that might realistically be called a nation? What do we want from self-governance – our form of political and administrative organisation; our form of representation, the reach of suffrage; the kinds of laws and the institution that should oversee their justness and effectiveness – especially for the lower classes in society; what should “our” goals be for the entirety of this new thing that we are creative? Are we going to write this all down – and call it a “constitution”?
JAWAHARLAL NEHRU
The public figures gathered in New Delhi in 1946 confronted all these and more issues. The Indian Constituent Assembly declared three grand goals for the founding document: They were protecting and enhancing national unity and integrity, establishing the institutions and spirit of democracy, and fostering a social revolution (often called socialism) to better the lot of the mass of citizens. As essential as were the goals, individually, the framers believed that none should be pursued at the expense of any of the others. They were mutually dependent.
Of course, the institutions for government created in the Constitution also were mutually dependent whether or not their responsibilities put them at odds. The judiciary often struck down parliamentary legislation as not in accordance with the Constitution. Parliament responded, first in 1951, with an Act that placed certain land reform laws outside the Supreme Court’s jurisdiction. In 1973, the government, during Indira Gandhi’s prime ministership, did its best to curb the court’s reach and, indeed, to bring it closely under the influence of the executive branch. The relationship between the court and the government was soured several more times during the 1970s and 1980s and the first few years of the 1990s before stabilising since then.
In federations that may find themselves facing issues where Central government authority may be at odds with actions by the constituent units’ governments (State legislative and executive actions) Supreme Courts are typically called upon to settle the disputes. Somewhat surprisingly, the court in Delhi seldom has been called upon to adjudicate these “federal” cases. It has been approached through political channel – the dominant party at the Centre bringing its power to bear on the party dominant in the Legislative Assembly in the State. When the Congress party was powerful, nationally, this was comparatively easy. As other political parties won power in the States, the task was far more difficult. In the late 1960s and in the 1970s, with Indira Gandhi in office as Prime Minister, she clipped the wings of the Congress in the States and outmanoeuvred other State parties. This trend culminated in her well-known Emergency, in which her government and Parliament, over which she had unchallenged influence, held authoritarian sway over the entire country.
This degree of “centralisation”, to employ an inadequate euphemism, had been seen in milder form for two decades. State governments had been complaining about New Delhi’s policies to exert influence over them. Chief Ministers formed committees in protest, offering recommendations for measures, constitutional and less formal, to restore greater balance in the federal relationship. The Centre, for its part, devised methods to bring the Ministries and the State governments together for problem solving. These efforts, however, typically bore New Delhi’s stamp and were unpopular with the States, which continued to level charges against centralisation. The report of the Commission on Centre-State Relations, chaired by Justice R.S. Sarkaria and published in 1983, proposed alterations in constitutional provisions and extra-constitutional political practices that, if implemented, would have markedly improved the situation.
None of this should startle us greatly for the Constitution tips the scales of power towards the Central government. The mood among the framers was anxiety about national unity and integrity. Partition was only months in the past; Kashmir’s status was undecided; there were murmurings of separatism among the Sikhs; Telangana was in revolt; the north-east was uneasy (as it since has continued to be); secularism versus communalism worried Jawaharlal Nehru and other Congress leaders; economic planning and development depended upon national unity. Still, Centre-State relations have worked. India now is a united nation, blemishes notwithstanding. If Telangana does become a State it is unlikely that its relations with New Delhi will vary significantly from those of other States. Most important was, and is, that the Constitution is two documents, a national constitution and a constitution for the States – a situation that seems to have had little effect on Centre-State relations. The appearance of independent political parties in States will reduce the ability of the Central government and its constituent parties to meddle in State affairs. Violence by naxalites, however, persists as a dangerous matter. But not more so than exploitation of peasants by alliances between politicians and economic “developers”.
From time to time during the past 60 years, theorists have argued that federal and parliamentary systems fit ill together. In India’s situation I, personally, think that little would be gained from changing to a presidential system. Beyond the vast subsidiary changes that would be entailed, States would still be dependent on the Centre’s power and largesse. Related to this consideration is the often raised query: “Does the Constitution need significant change to make it work better?” Perhaps. I am not a student of the question. My reaction to the suggestions I have heard is that they are premised on the fantasy that a change in the Constitution’s wording would reform human, political conduct. Yet improving human behaviour never has been so easily achieved. Substitute the word “draftsman” for “doctor” and “Constitution” for “patient” and you have, “The draftsman survived, but the Constitution died.”
Thanks to the character, humanity and prescience of the founding fathers, and mothers, the Constitution has been “the cornerstone of the nation”. Reduced to its barest essentials, it is a template for national administration (thanks in great part to the Parliament in London and its 1935 Government of India Act) and a document meant to establish the nation’s social reform goals and to write down the constitutional mechanisms to be used to reach them. These appear throughout the Constitution – in the Fundamental Rights and the Directive Principles of State Policy, and in the provisions for special treatment for various minorities and backward sections of society. As Vice-President S. Radhakrishnan put it, India must have a “socio-economic revolution… [to achieve] the real satisfaction of the fundamental needs of the common man… [and] a fundamental change in the structure of Indian society.”
The Constitution’s Preamble says that it is to secure to all its citizens
JUSTICE, social, economic, and political and
EQUALITY of status and opportunity and
FRATERNITY assuring the dignity of the individual.
The nobility of these goals is exceeded only by their ambition.
For India is a “survival society” – a society characterised by hierarchy and want. The “want” stretches from the man who is striving for two chapatis for himself and his family when he has one – the tenant farmer, the agricultural labourer, the Dalit, the member of the backward classes – to the person at the top of society – as defined by economic status or caste – who strives to maintain the contacts in government that bring him money, who assures his son a place in a university or a good school (perhaps with a little gentle bribery), to him who, no matter what his caste or income, follows the scriptural injunction to promote the well-being of his family before that of his neighbour.
The well-known social thinker R.C. Dutt has said that “the moral atmosphere of the struggle for existence…has provided ample opportunities for corruption and for collective self-aggrandisement at the expense of the poor”. P.N. Haksar, for some time secretary to Indira Gandhi, has said that members of “our civil services…are committed first of all to themselves and to their nuclear family…[and beyond this] to members of…his sub-caste, caste, community, and region.”
Himalayan barrier
These characteristics of Indian culture, have constituted a himalayan barrier to achieving the creed of the Preamble. Yet, the provisions of the Constitution have chipped away at the barrier with some success. Adult suffrage has been its principal tool – even though candidates elected may promptly ignore the promises they have made to constituents. As injurious to the integrity of adult suffrage – and certainly to its reputation in India and abroad and to Parliament and several State legislatures – has been political parties giving the ticket to known criminals to contest elections. On the plus side, suffrage continues to spawn political parties and active politics and an open process for vote seeking. The Fundamental Rights and the security measures put in place by the Election Commission have protected voters’ rights. Social action legislation and group activity and the increasing energy shown by panchayats have enlivened villagers’ political involvement. Reservation of seats for various classes, castes and women in education, legislative bodies, including panchayats, and the civil services have brought previously unrepresented individuals and groups into national life. Great controversy accompanied such developments.
Recently, long-argued issues have re-emerged: the definition of “backwardness – caste or class or poverty”; whether reservation is equalising downward or upwards; whether reservation/concession tends to become vested interests; whether reservation/concession engenders a spirit of self-denigration among the people. What is basically important here is that legislators, lawyers, and the courts are considering these questions seriously. Faith in the Constitution is widespread among the wide variety of constituencies.
In a speech given recently on Human Rights Day, the noted advocate Fali S. Nariman said: “It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed [in the year 1950] to be achievable goals.” Nariman added: “The remedy to effectively countering discrimination…is not by law, but in attitudes… [which] must change.” The noted political thinker Andre Beteille summed up this appraisal when he wrote that “a constitution may indicate the direction in which we are to move, but the social structure will decide how far we are able to move and at what pace”.
A success despite frailties
The Constitution and its seamless web of democracy, social revolution, and national unity and integrity have met India’s needs. It is fair to say that it has been a success despite some frailties – which might, with political will, be easily remedied. Yet the Constitution has presented a paradox: the sturdiness of the system it has provided has permitted vast deviations from its system and its spirit, by those who would ignore them or distort them. The Constitution has provided protective coloration much as an animal or a bird changes its appearance without changing its being. Praising its provisions has given licence to those who would ignore them to do so. Democracy was subverted by the First Amendment’s placing of the land reform legislation beyond the Supreme Court’s jurisdiction, by the executive branch’s many attacks on the court’s independence, and by the imposition of the monstrous Emergency in 1975.
The Preamble’s promise to seek justice, social economic and political, and equality of status and opportunity – and the vainglorious addition of the words “socialist” and “secular” to the Preamble by the 42nd Amendment left conditions for Dalits and other backward castes much as they long have been. I must add here that adult suffrage, and its accompanying effect of caste encouraging political mobilisation for voting, and reservation policies have increased citizen participation in democratic processes – although caste-against-caste oppression still may be savage. To compare political conditions in, say, 1945 with those in India today demonstrates how far representative government has come during the interim.
India under the Constitution has come a long, long way in 60 years – not to forget the distance it still has to go. The critics who downplay its achievements lack understanding and empathy – particularly American critics, whose democracy has serious difficulties no matter where they look. Indeed, not looking is one of their difficulties. Indian citizens have much to be proud of, but should avoid smugness. A remedy for it could be to ask themselves what the members of the Constituent Assembly might think if, like Rip Van Winkle, they awoke tomorrow.
With Independence we have lost the excuse of blaming the British if anything goes wrong, Ambekdar told the Assembly. We will have nobody to blame except ourselves.
Historians of constitutional developments in India are unlikely to be without a job. There is too much going on, too much to puzzle over, to learn. One matter, among the many others, especially perplexes me. Can India be a great democracy, strong in itself and in the eyes of the world, so long as so many of its people are denied the promise of the Preamble?
Granville Austin began his study of India and the Constitution in 1959. He has published two books on the subject: “The Indian Constitution – Cornerstone of a Nation”, 1966, and “Working a Democratic Constitution – A History of the Indian Experience”, 1999. He holds a D.Phil degree from Oxford University.
http://www.hinduonnet.com/fline/stories/20100226270400400.htm
To give meaning to dignity of life, Rahul needs to travel more
Dhananjay Mahapatra, TNN, 7 February 2010, 09:03pm IST
Rahul Gandhi made a huge political statement by taking a Mumbai local that loudly chugged through the so-called Sena bastion, silencing the rabid anti north indian roar of old tiger and cubs. The constitutional guarantee of right to travel, settle and work anywhere in India long needed this somewhat daring, though symbolic, step. Rahul Gandhi made a huge political statement by taking a Mumbai local that loudly chugged through the so-called Sena
The Gandhi scion may need to undertake many such journeys if the ruling class wants to assure citizens that there will be no compromise when it comes to their fundamental rights, importance of which was penned beautifully by the Supreme Court in `Maneka Gandhi vs Union of India’ [1978 (1) SCC 248].
The SC had said, “The fundamental rights in Chapter III of the Constitution represents the basic values cherished by the people of this country since Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.”
In the three decades since this judgment, the top court has time and again highlighted two important issues — dignity of human beings and creation of an atmosphere where each can develop his personality to the fullest extent. To achieve this, it will require much more than symbolic journeys by the political class. But since Rahul’s presence in the battlefields of social and economic inequality appears to stir governments to life, here are some more journeys for him into areas where a sizeable population is silently vegetating in the dark alleys of hopelessness.
The first such journey must take him to the hinterlands of Haryana where the notorious Khap panchayats dish out diktats to snuff out lives of young couples who breach caste barriers and fall in love.
Abolition of the reprehensible caste system appears to have been lost on the members of these caste councils. It would be more than symbolic if Rahul participates in one such Khap panchayat meeting and stands up to oppose the caste blinded village elders, something identical to what he did in Mumbai — belling the big cat in its den.
Then, he can go to Puri along with his friends from different communities to visit the famous Jagannath temple, which is infamous for not allowing anyone except Hindus to enter its precincts.
After having participated in Khap panchayat and visited the Jagannath temple, he can plan spending a few hours at a dalit’s house in any of the villages falling in the naxal hotbeds of Jharkhand, Chhattisgarh, Andhra Pradesh, Orissa, Bihar, West Bengal and Maharashtra. He will learn how governance has not reached the villagers, who for decades have lived in utter deprivation and under the shadow of the gun held by outlaws or the security forces.
The grave fallout of acute economic disparity and caste system was noticed by the SC in the case Waman Rao vs Union of India [1980 (3) SCC 587]. It had said, “The progress in the degeneracy of any nation can be rapid, especially in societies riven by economic disparity and caste barriers.” It reminded, “We embarked upon a constitutional era holding forth promise that we will secure to all citizens justice, social, economic and political, equality of status and opportunity and last but not the least, dignity of the individual.”
Having understood the essence of Waman Rao judgment, Rahul could visit some of the north-eastern states where militancy has forced the closure of schools and left students with no option but to flee to metros to further their studies, resort to drugs or join the cult of gun.
After a tiring journey through a few of the most problematic areas, he could come back to the Capital and take a stroll on the footpath of GB Road to understand the pain of exploitation hidden under the liberally painted pretty faces which for the compulsion of living solicit customers. They alone can tell the shoddy manner in which the Immoral Traffic (Prevention) Act has worked for the last 54 years.
This is only a symbolic and not an exhaustive itinerary for Rahul given the multitude of socio-economic problems faced by the country.
GUL PANAG SPEAKS UP AGAINST SHIV SENA SEPRATIST POLICY
GUL PANAG SPEAKS UP AGAINST SHIV SENA
IN THE INDIAN EXPRESS
There comes a time in life, when an inner voice urges you to give back. One can either stand up at that point and decide to act, or carry on with life’s pursuits. The question is, when you do decide to stand up for what you think is right, is your spine strong enough to bear the weight of your beliefs and convictions?
I have always been an idealist, always made an attempt to speak out, but there was a time when one just couldn’t be heard. Fortunately, social media platforms like Twitter and the media have changed all that, empowering the average citizen with a voice. And it’s this voice that is beginning to make a difference.Being from a third generation armed forces family, I have been raised with a strong sense of discipline, integrity and a very clear value system. The army is an organisation that to me represents the highest order of ethics and morality. The principles and ideals I live by are a result of my upbringing in the armed forces’ environment of justice, integrity and propriety. These principles took a hit when the institution that gave me all I have appeared to be shaky on integrity.
What sets the armed forces apart from the rest of society is not that nothing wrong can happen within its confines: after all it’s made up of elements from society, but that justice and retribution is swift, when such wrong comes to light. When this differentiating factor doesn’t hold good, my conscience goads me to speak up.
The Sena war cry of Mumbai for Marathis is also a violation of an ethical and moral code of conduct. Denying an Indian citizen a right that is guaranteed by the Constitution is against the law and just not acceptable. Sure, the Mumbai infrastructure is overburdened (not just due to the influx of migrants) but so is the case with a city like Delhi. One doesn’t find such madness there.
The Shiv Sena’s use of the “Marathi Manoos” agenda to exhort violence and hatred cannot be exonerated. Sadly, the state’s record in protecting its people (read common man) against such acts of intimidation, violence and hooliganism is dismal. How can anybody deny a constitutional right and get away with it? How can anybody break the law? Again and again?
Shah Rukh Khan is an Indian citizen and has the right to free expression. How can that be questioned, debated or even politicised? And yet it’s become a huge issue with reams of newsprint and prime time being dedicated to it. Kudos to him for not bowing down to the powers that be. Perhaps, the fact that the fate of his film is in question is incidental.
The film industry so far has not taken a united stand. That’s because the state government’s past record, once again, is abysmal as far as providing security to the industry in such matters is concerned.
The issue however is much larger than a film. It’s about upholding the Constitution of India. Are the thousands of migrants living and working in “unsecure” (when compared to Mannat, Khan’s house) areas expendable? Do their battles not deserve our support? Where is the justice of it all?
I was brought up to speak up and stand up for what is right, even if it’s unpopular. I am fortunate indeed to be where I am today, but what good would that be if I didn’t raise my voice against issues that bother me, bother us? I might as well be an uneducated, unaware woman living in my village in Punjab! Which I might have been were it not for an accident of birth.
Being honourable and upright is not an accident but a choice. A choice we all can make to collectively alter the course of our nation. No issue is too small to stand up for and certainly no issue too big. If a million issues found a million voices, how could it not make a difference? Being upright is no longer the prerogative of our elders; with the majority of our population being “young”, the mantle is now on us. Because we the young, the youth, are the future of India. Are we going to allow this glorious future to be derailed by lapses of our collective conscience? It’s time to stop being on the sidelines. It’s time to stand up for what is right. It’s time to get involved.
The writer is a Mumbai-based actor
http://www.indianexpress.com/news/kudos-to-shah-rukh-khan/575848/0
Bring Games workers under labour laws: HC
The Delhi High Court on Wednesday directed the state government to register the 17,000-odd labourers working on Commonwealth Games projects and provide them all facilities under labour laws concerned.A Division Bench comprising Chief Justice A P Shah and Justice Rajiv Sahai Endlaw also directed the government to constitute a four-member committee to look into registration of workers. This would entitle them rights such as insurance cover, issuance of minimum wages and pay slips, medical facilities, electricity, and clean drinking water among others.The committee will comprise a labour commissioner, labour secretary, a former UN ambassador and a person associated with National Human Rights Commission (NHRC). The committee has been directed to hold its first meeting on Monday — chalk out its plan of action and inform the court.The court’s directives came while hearing a Public Interest Litigation filed by the NGO People’s Union For Democratic Rights, which based its contentions on two surveys that found these workers live in dangerous and deplorable conditions with no access to basic sanitation and health facilities. The NGO also contended these labourers are paid lower than the stipulated wage.
Appearing for the NGO, senior lawyer Colin Gonsalves requested the Bench that the government must provide wages to them under provisions of the Contract Labour Act and that workers should be issued proper identity cards along with hygienic conditions in camps, regular supply of power and water among other basic facilities.The NGO’s petition was against the Sports Authority of India and agencies in charge of construction of Games projects — Delhi Development Authority, Central Public Works Department, New Delhi Municipal Council, Municipal Corporation of Delhi and the Delhi Metro Rail Corporation.
“You are in too much of haste,” the Bench told government counsel Najmi Waziri. “We are not disputing that preparations have to be done for the Games at appropriate time but in the process we cannot allow workers’ rights to get affected. You must ensure all workers are registered.”The court has sought a report by March 17.
http://www.indianexpress.com/news/bring-games-workers-under-labour-laws-hc/575226/0
‘Some post-retirement activity of SC judges is attracting public disapproval’
LECTURE DELIVERED BY JUSTICE J S VERMA AND PUBLISHED IN INDIAN EXPRESS FEBRUARY 4,2010
JUSTICE J S VERMA The recent response of the Delhi igh Court led by Chief Justice A.P. Shah in rejecting the tenuous stand of the Chief Justice of India, K.G. Balakrishnan that the office of CJI and the Supreme Court are above the law (RTI Act) applicable to all public functionaries in our republican democracy, is to be hailed as a welcome blow for transparency and accountability, which are acknowledged principles of standards in public life… The decision first by a single judge, S. Ravindra Bhat’ affirmed on appeal by the full bench of the Delhi High Court is a glaring proof of judicial independence.
JUSTICE J S VERMA
The observations of A.P Shah, C.J. speaking for the full bench that “Judicial independence is not the personal privilege of the individual judge’ but a responsibility cast on him”, provide a strong fillip to judicial independence. Chief Justice Shah has articulated the true concept of judicial independence, reiterating the modern view. He has echoed the words of Lord Woolf C.J. in an article wherein he said, “the independence of the judiciary is therefore not the property of the judiciary, but a commodity to be held by the judiciary in trust for the public”. It is time the Chief Justice of India takes the lead in this direction provided admirably by the High Court to bring quietus to the unsavoury controversy threatening judicial independence…
Let me hope that the Supreme Court led by the CJI will now accept the verdict in good grace and not appeal to itself to re-examine its obvious merit of the Delhi High Court judgment! Otherwise, we are bound to go down in the public estimation which would rightly conclude that we do not practice what we preach…
The Bar has a significant role in such a situation. I wish the Attorney General, G.E. Vahanvati’ who appears for the Supreme Court, draws inspiration from some of his illustrious predecessors to advise the CJI against a further appeal by the Supreme Court now to itself… I refrain from commenting on the Dinakaran issue since the proceedings seeking his removal have been commenced and are in progress…
Another issue relevant in this context is of the appointment of judges in the Supreme Court and the High Courts. Chief Justice Balakrishnan asserts that the collegium headed by him is strictly following the decision in the Second Judges case by which they are bound. The general perception voiced eloquently by the executive is that the executive has no part in making these appointments for which the judicial collegium alone is responsible and answerable. It is true that the veto power granted to the executive by the First Judges’ case, AIR 1982 SC 149 is taken away by the Second Judges’ case, AIR 1994 SC 268; but it is not correct that the executive has been denuded of all power in adjudging the suitability of the candidates for appointment. However, greater responsibility does lie in the judicial collegium because of its role under the existing system…
Supreme Court of India
A brief reference to the Second Judges’ case is necessary… The clear language of the decision leaves no room for any doubt that the executive has a participatory role in these appointments; the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents, etc., are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous does not bind the executive to make the appointment…
Post-retirement conduct of the superior judges, particularly those of the Supreme Court is also relevant enough in this context to require mention.
In addition to the system providing for the appointment of persons of proven integrity as guardian of constitutional values, there is the need for constitutional safeguards to insulate them also from possible executive influence, through temptations in subtle ways, to preserve judicial independence. One such method to penetrate the resolve of even a few of the best is the temptation of lucrative post-retiral benefits given by the executive to a favoured few. The obverse of the constitutional guarantee of security of tenure and conditions of service is the obligation of such constitutional functionaries to the observance of a code of post-retiral conduct eschewing any such temptation. To the extent possible, the needed constitutional prohibitions should also be enacted, to enable the development of healthy conventions. The environment of eroding ethical values calls for this preventive measure. Some instances of post-retirement activity of judges of the Supreme Court (including the CJI) are attracting public disapproval, even if voiced privately. Chamber practice of giving written opinions by name to be used by litigants/parties before court/tribunal or any authority; arbitrations for high fees; doing arbitrations even while heading Commissions/Tribunals and availing the salary, perquisites and benefits of a sitting Judge/CJI are some activities inviting adverse comments and seen as eroding judicial independence. This too is a threat to judicial independence, which must be averted.
Extracts from the first S. Govind Swaminadhan Memorial Lecture at the Madras High Court on January 29, 2010
‘It saddens me that the judiciary appears to have lost the initiative’
Justice J S Verma in The Indian Express
With the debate over judicial accountability raging, former Chief Justice of India J.S. VERMA weighs in on the need for self-regulation,and explains his dissenting opinion in the Veeraswami case
A serious debate is now raging about the inadequacy of the existing mechanism for enforcing the judicial accountability of any erring judge in a High Court or in the Supreme Court. There is now a general consensus that some recent incidents involving a few in the higher judiciary has exposed the inadequacy of the existing provisions to deal with the situation; and it calls for an effective mechanism to enforce the judicial accountability of the higher judiciary, in case of need… It must be borne in mind that the number of erring superior judges is minuscule which must not embarrass the vast majority of correct judges. The threat to the independence of the judiciary must be averted by a sensible balancing act…
SUPREME COURT OF INDIA
Focus on some important areas is needed. A few of these were identified in my separate opinion in the K.Veeraswami case, and the majority opinion in the Second Judges case. A brief mention of these in the present context is helpful. In the K.Veeraswami case, 1991 (3) SCC 655 my dissent recognised the felt need for suitable legislation, the existing provision being inadequate, to ensure accountability of higher judiciary protecting judicial independence.
Therein, I had said: “If there is now a felt need to provide for such a situation, the remedy lies in suitable legislation for the purpose of preserving the independence of judiciary free from likely executive influence while providing a proper and adequate machinery for investigation into allegations of corruption against such constitutional functionaries and for their trial and punishment… The social sanction of their own community was visualised as sufficient safeguard with impeachment and removal from office under Article 124(4) being the extreme step needed, if at all. It appears that the social sanction of the community has been waning and inadequate of late. If so, the time for legal sanction being provided may have been reached”.
Having been convinced that the majority opinion in the K.Veeraswami case was not workable (as proved by later events), I added a warning in one para at the end of my draft dissent, which I omitted at the time of its pronouncement because of its strong language. The apprehension therein of a later intrusion by the executive to prescribe for us having now come true, it may help to recall that sentiment with the hope that some prestige may be salvaged even now in enactment of the impending legislation to cover the field. I believe that self-regulation is dignified while outside imposition is demeaning. The omitted draft para from that opinion was: “With no pretensions of a ‘prophet with honour’, to borrow the title from Alan Barth’s compilation of opinions of some great dissenters, and no desire to be a prophet of doom, I deem it fit to end on a note of caution. My view is not shared by the majority. I hope they are right. But, if it be not so, let not posterity accuse us that the control over the judiciary denied to the executive by the Constitution and Parliament, and which the executive could not wrest through Parliament, was conferred on it by judicial craftsmanship itself. I do hope that in spite of the present clamour for the majority view, in calmer times, when present pressures, passions and fears subside, and the potential threat of the yet unknown and unexpected power in the executive without the requisite statutory safeguards is fully realised, there will be time enough to effectively check any intrusion into the independence of judiciary by this means. Undoubtedly, there is erosion of values in all spheres but even now the higher judiciary retains comparatively the greatest credibility in public eye, as it did in earlier times. Is it, therefore, correct and wise to vest the executive, which does not enjoy even equal, much less greater credibility, with this extra power not envisaged by the Constitution and the Parliament? The answer at present by the majority is in the affirmative, which would be the law. It is the future, which will unfold the true canvas.”
The need to regulate this area by internal discipline to prevent outside intrusion prompted resolutions to this effect in the Chief Justice’s conferences, but the general reluctance from within kept the matter in abeyance till the three resolutions were adopted unanimously by the Supreme Court on May 7, 1997: Restatement of Values in Judicial Life; Declaration of Assets by the Supreme Court and High Court judges; and ‘In-house Procedure’ for inquiry into allegations against these judges. These resolutions were later adopted in the Chief Justice’s Conference in 1999. The Bangalore Principles, 2002 also affirmed the Restatement of Values. These resolutions provided the framework for the needed legislation to cover the field without any scope for executive intrusion in enactment of the legislation. Before demitting the office of the CJI, I also wrote a letter on December 1, 1997 to the PM to this effect in a bid to ensure judicial accountability preserving the independence of the judiciary. After my retirement, I have reiterated it in a letter of April 7, 2005 to the present Prime Minister.
It saddens me to find that the judiciary appears to have lost the initiative and the political executive, who also control Parliament in our constitutional scheme, is now to determine the contents of the impending legislation. What troubles me even more is the reported initial assertion of the CJI, Balakrishnan, that the superior judges need not declare their assets unless bound to do so by a law, in spite of the unanimous resolution of the Supreme Court on May 7, 1997 since that has only moral authority; and later the judicial challenge to applicability of the RTI Act in the High Court and then to itself! I am distressed at the comments made publicly and heard privately about the higher judiciary in this context. However, the subsequent dilution of that stand is welcome news. The perception that law alone and not morality binds the judiciary is in conflict with the judicial tradition and is disturbing…
Extracts from the first S. Govind Swaminadhan Memorial Lecture at the Madras High Court on January 29, 2010
http://www.indianexpress.com/news/it-saddens-me-that-the-judiciary-appears-to-have-lost-the-initiative/574618/0
Questions of judicial access
V.R. Krishna Iyer IN THE HINDU
Is it the Supreme Court of India, or the Supreme Court for Indians?
A Supreme Court of India, and a Supreme Court for all Indians: these two versions can be radically different in terms of principle and content. The Preamble to the Constitution has pledged the people of India to justice — social, economic, cultural — and political India with a geopolitical concept. Indians represent a humanist-socio-economic idea, a collective value.
A billion and more of Indians have a unique cultural legacy. Their noble thoughts can transcend mere space, terrain and land, and they are politically united by a notion of nationalism. One is dynamic and dialectical, the other is bare ground and air that provide them their habitat. Indians are proud to be a united people. But earth and ocean have no life unless human beings enliven them. Institutions are meant to serve life and its development.
If democracy is for the people, the Supreme Court should function where the litigants need it most, not where the British for their imperial reasons chose to locate it. It was for historical and geographic-strategic grounds that Delhi was chosen as the national capital. Delhi has no other claim to be the capital seat of the judiciary as well. For military and administrative purposes, a united India found Delhi to be the most suitable. But after Partition, Delhi itself remains vulnerable as a target before Pakistan. Delhi has no special advantage in cultural, geographic, political or social terms to be the centre of the country’s judicial administration.
‘For the People’ is a democratic and logical desideratum. Then the courts should be where the litigants are in large numbers, where their access is best facilitated. In this large country, Delhi is but a corner, while the people live mostly to the south, east and west.
The different factors may be studied by a Commission such as the Law Commission, which has come to the reasoned conclusion that there must be four benches of the Supreme Court. The south feels dominated by the north owing to the location of the Supreme Court. Is justice being alienated by distance, culture and language from the north? When the Supreme Court has authority over the rule of the whole nation, this insular judicial imperialism will be a divisive force. This should be avoided at all costs. Decentralisation based on geography, history and social factors is an imperative need.
SUPREME COURT OF INDIA
The glory of India in its undivided status and stature is not dependent on a single court but on its pragmatic diversity. So these are profound considerations behind the demand for Benches of the Supreme Court outside Delhi. Why did Pakistan as a nation become powerful only on religious criteria? Why did East Bengal separate from Pakistan and become a separate sovereign state? Language and culture are good lessons for the people to keep Bharat as one entity. Let us have Benches on federal considerations, promoting unity in diversity.
In a vast country of diversity, demographic immensity, logistic difficulty and large-scale indigence, democracy makes decentralisation an imperative of administration. Access to justice also implies early finality coming within the reach of the rich and the poor. These considerations persuaded Uttar Pradesh, the State that has one of the direst situations in terms of poverty and has one of the largest chunks of population among the States, to attempt some moderate reform in the field of revision to the High Court in litigation involving financial stakes below a certain level.
Up until now, judicial reform has been a tinkering exercise, not an engineering project. But even that little tinkering is fiercely challenged as litigative anathema by the legal profession. This is unfortunate. Decentralisation has a paramount desideratum if access for the people to judicial institutions has to become a reality. This fact compelled various States in India, even native princedoms, to adopt the strategy of having benches. It has worked well to enable the aggrieved poor to reach the courts and seek remedies. The same reasoning justifies the need for benches of the Supreme Court if that magnificent institution is to fulfil its fundamental mission of being a court for the people and of the people. It was this principle that persuaded the Law Commission to recommend four benches for this large country.
The Law Commission has pointed out how huge sums of money are wasted by a single court situated in one corner of the country, which is final and infallible. The litigant sells all he has to reach Delhi and pay fabulous fees to hire lawyers, only to find that by afternoon the case stands postponed. The expense already incurred goes down the drain. Air travel is expensive, hotel costs are horrendous, lawyers charge high fees, and arguments with leisurely judges take too many days. On the whole, going to the law is like going to Banaras or Mecca: a will and testament has to be written out because litigation often lasts beyond your life-time. Astrologers alone can hope to anticipate its fate.
The Law Commission recommended that four Cassation Benches be set up in the Northern region/zone in Delhi, the Southern region/zone in Chennai/Hyderabad, the Eastern region/zone in Kolkata and the Western region/zone in Mumbai, to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region. It also suggested that if it is found that Article 130 of the Constitution cannot be stretched to make it possible to implement this recommendation, Parliament should enact a suitable legislation or constitutional amendment for the purpose.
The rule of law must govern the rule of life, and if life is to be humanist, compassionate and accessible to the lowliest, the law must be equally open to the humblest, simplest and little member of the community.
Judicial justice is precious to a people. The adversarial system of justice to be successful has to have the Bar as an integral part of the system of judicial administration. The Bench and the Bar together operate to dispense competent and sound justice. Justice is the salt of the earth and if the salt loses its savour, wherewith shall they be salted?
The excellence of justice, the refined process of justice and justicing, make humanity happy, harmonious and a haven for peaceful and progressive habitation. Access is negated where the system is expensive; the social philosophy of the judges and the lawyers are with the proprietariat, and the poor are priced out of an archaic system whose doors open only to the opulent, not to the indigent. Dialectical materialism is the reality in the temporal world, and where purchase of able argument from the Bar is beyond the purse of the litigant, he or she is de facto denied justice.
Economic democracy in the administration of justice commands a system where courts and tribunals are easy to reach, inexpensive to tap and facilitate finality of verdict. These fundamental features compel a democratic system of justice to be successful by means of decentralisation. Without this, the people cease to be the beneficiaries of democracy or have a voice in the state process. This applies all the more in the case of justice because justice is based on law and law in a complex society in a modern democracy is too complicated for the laity.
The Indian legal system is altogether beyond the common people. It is so esoteric that it remains alien and unintelligible to a society that is largely illiterate —without the aid of the Bar, which has a professional monopoly over jurisprudence. If the court has too many tiers and the highest court is too distant from the regions where the proletariat live and struggle for its existence, the right to justice which is the quintessence of democracy loses its spiritual value and cipherises the other fundamental rights.
The inevitable conclusion is that a decentralised system of judicature is a paramount property for democracy to have élan. A vibrant democracy must have a circuit system of administration of justice. Alternatively, Benches in different parts of the country will make the court accessible to all. Justice must be available so that social justice may become a reality.
The Bench and the Bar must be easy of access if economic democracy is not to be a travesty. If political justice is so costly that it is available only to the rich, the laws will grind the poor and the rich will rule the law.
http://www.hindu.com/2010/02/03/stories/2010020354660900.htm
Moily rejects call to set up Supreme Court benches
PUBLISHED IN THE HINDU
Union Law Minister, Veerappa Moily, on Tuesday firmly rejected the suggestions for setting up Supreme Court benches in different parts of the country. “The Law Commission had recommended the setting up of Supreme Court benches. The matter was referred to Attorney General G.E.Vahanvati. He has not agreed to it. The issue is now closed’’. In an informal chat with reporters, he said the Government, was, however, open to consider the idea of establishing a system of third appellate courts as suggested by the Chief Justice of India.
“We will discuss the matter with the judiciary. But, presently, nothing concrete is on the ground. We are in the process of thinking on the issue’’, he added. Asked about the demands for setting up of benches of High Courts, Mr. Moily said principles have to be laid down to consider such requests, and for that, his Ministry was toying with the idea of setting up a committee. “Requests [for High Court benches] are plenty. We have to take an objective view on that. We have to lay down criteria by which the requests could be considered’’.
He noted that the Supreme Court had made it clear that High Court benches could be set up only with the consent of Chief Justices of the High Courts. Asked about the issue of honour killings, he said his Ministry has suggested to the Home Ministry to introduce a Bill to put an end to the problem by amending the Evidence Act to make such an offence a presumptive guilt, with all members of the Panchayats concerned made equally responsible.
The Ministry has suggested that the Bill be a comprehensive one and include a provision to amend the IPC to cover honour killings also under the definition of murder and another to reduce, if not totally do away with the notice period under the Special Marriages Act. Asked about the proposed Judges Accountability and Standards Bill, he said a Cabinet note has been circulated to the Ministries concerned and expressed the hope that it would be ready to be put up before the Cabinet in the next fortnight.
On Women’s Reservation Bill, he expressed confidence that it would be re-tabled in Parliament in the coming Budget session. Noting that the Parliamentary Standing Committee on Law and Justice has recently given its report on the Bill, he said his Ministry was would place the Bill again before the Cabinet and then re-introduce it in Parliament. He said the Government was in the process of notifying a three-member Rajya Sabha committee to look into the allegation of misconduct by Karnataka Chief Justice, P.D. Dinakaran, who is facing removal proceedings.
Mr. Moily announced that a national consultation on second generation legal education reform would be held in April for a wide ranging discussion on how the legal education system in the country could be made world class. All stakeholders would be invited for the discussion to be held on April 10 and 11.
http://beta.thehindu.com/news/national/article99404.ece
