LAW RESOURCE INDIA

Liberhan Ayodhya Commission

Posted in ACCESS TO JUSTICE by NNLRJ INDIA on November 26, 2009

Acid attack, the most horrendous crime

Posted in CRIME AGAINST WOMEN, GENDER, HUMAN RIGHTS, LIBERTY AND JUSTICE by NNLRJ INDIA on November 25, 2009

Francis Kuriakose ,  Deepa K. S. IN THE HINDU NOVEMBER 22, 2009

(“Did you hurt a woman today/ I have to ask these obscene questions” — Ntozake Shange)

As the crime rate against women is on an upward spiral, we need to ask some uncomfortable questions. In India, sexual harassment cases have been rising above 10 per cent every year since 1999. Sixty one cases of acid attacks were reported by CSAAAW. In Andhra Pradesh alone, 12 cases of acid attacks were reported this year. Yet, such alarming statistics do not raise a public outcry. Whenever we see reports of such harried women, we merely shrug it off as yet another case of violence against women. In India, one third of women in the age group 15-49 undergo physical violence. But, appallingly, two out of three women do not share their experiences with anyone. Only two per cent of the abused women seek help from the police (NFHS final report). It is clear that the actual scenario is far worse than what meets the eye. Of the different kinds of violence women face, acid attack is the most horrendous as it leaves the victims with unimaginable trauma for the rest of their lives. The expensive reconstructive plastic surgery and post-operative care are not a feasible option for the poor women. They also become dependant on their families as employment opportunity and marriage alliances do not come by.

It is interesting to note that the perpetrators of crime were known to the victims in 84 out of every 100 case. It is usually the estranged husband or the spurned lover who refuses to take a ‘no’ for an answer from the women. There is even less sympathy from society after these women go through this traumatic experience. These crimes are not committed in a fit of passion, they are premeditated and intended to cause harm. The law enforcement agencies are found unequal to the task. The victims who go from pillar to post for justice are met with inefficiency, apathy and ignorance.

In the rare cases when the criminals are brought to book, the justice system lets them off on bail. Sometimes, it is the fear of the crime than the crime itself that traumatises women. But we do not have comprehensive laws to deal with the issue. Also, we have only one police woman for 45 policemen — a woefully inadequate 2.09 per cent of the entire police force. Before demanding new laws, we must question why the existing laws do not work. Bangladesh in 2002 came up with the death penalty for acid attacks, Qisas of Pakistan award the perpetrators the same fate as victim’s. In Iran, the penalty is that the attacker has to be blinded.

The Indian Penal Code has an insufficient Section 326A to deal with this crime. IPC (1860), Cr.PC (1973) and the Indian Evidence Act (1872) have to be amended to meet the requirements. It is heartening to note that a bill has been passed that awards life imprisonment and a fine up to Rs. 5 lakhs wherever prima facie evidence is available. Certainty in penalty will act as a deterrent. It is not the laws but our mindsets that need a transformation. The social problem has been diagnosed; a piecemeal approach will not solve the problem. The terminology ‘eve teasing’ to describe violence against women slights the abuse and harassment associated with it. Our films that depict the hero who ‘makes’ the girl fall in love with him portray an attitude that nurtures the male ego. Women are individuals with rights and men should learn to cope with assertive women. Awareness, greater sensitivity and respect towards women would go a long way in creating a secure space for women.

A value-based education, incorporating these ideals is the need of the hour. Enactment of new laws, creating institutions and lip service to provide reservation will not take care of the evil. It is time to put on our thinking caps and seriously ponder over these questions.

http://beta.thehindu.com/opinion/open-page/article53114.ece

A woman’s perspective on sexual harassment

Posted in CRIME AGAINST WOMEN, GENDER, HUMAN RIGHTS by NNLRJ INDIA on November 25, 2009

SHREEMA NINGOMBAM , THE HINDU NOVEMBER 22, 2009

We, women, live in a world of unknown forces pulling, shoving and bruising us not only physically but mentally. We feel utter disgust when a strange male ogles at us. We live in a world of unknown hands grappling our body, unknown eyes stripping us naked. This hatred is not simply because they are strangers but because they dare to do things which they don’t have the right to do and make us feel which they don’t have the right to make us feel.

What distinguishes human beings from the beast is the culture of attributing morality to sexuality, the culture of domination, and the sheer infinity of their wants. The distinction lies in the so-called rationality and the consequent self-restraint we possess. The person devoid of self-restraint and defying the norms and conventions of society is termed either lunatic or malefactor.

Who is un-free here, the women or the victimisers? Everyone assumes that women are not free to move at their will. They are not free to think, act or speak this way or that way. But the other side of the prism shows a different light. The perpetrators are the prisoners of their own uncensored, unrealised conscience. They are positively un-free (see positive freedom by Charles Taylor). It is not the woman who has to be freed from the clutches of man’s unholy hands and undignified eyes; it is the men themselves who have to be salvaged from their unrealised conscience. The unholy hands and the undignified eyes are the shadows of their unrealised conscience. As much as the shadows disappear with the disappearance of the real object, the former will disappear with the realisation of their conscience. It is not the person per se who has that unique conscience; rather, it is the structure of patriarchy that generates this conscience.

An instant suggestion of reformation would be through education, but many women would find well-educated, rich men committing the same act. Then we can say that education is necessary but is not a sufficient condition to the emancipation of the male conscience.

There is also another argument that women are harassed or molested only in the fragmentary moments of their lives so they should not bother much. Are our fragmentary moments unimportant? Are our lives not made of these fragmentary moments? We have the right to live every sundry fragmentary moment of our lives with dignity and respect. No one has the right to snatch or steal any moment of our life, defame it or blot it. If such stolen moments accumulate, one day it over-pours from our eyes making others console us saying this is part of our lives and that it is we who have to face it bravely. We do not want such attribution of bravery because the origin of this kind of bravery is illegitimate.

Valorising the capability of endurance which is forcefully entrusted to us is making a fool out of every woman. The very condition that forces us to endure and then regenerate again need to be eliminated. Why, in the first place, we need to endure?

One of the greatest mysteries of this world is women’s eternal capability to regenerate themselves. This is an entrusted capability, not an organic outgrowth capacity. Their tears become the manure of their regeneration. There was death and they chose to live.

(shree.ningombam@gmail.com)

http://beta.thehindu.com/opinion/open-page/article53115.ece

Address to the Nation by the Chief Justice of India, K. G. Balakrishnan

Courtesy , The Hindu

The following is the full text of the Address by the Chief Justice of India, K.G. Balakrishnan on the eve of the National Law Day. November 26 is celebrated as National Law Day because it was on this day in 1949 that the Constituent Assembly of India adopted the Constitution, which then came into effect on January 26, 1950.

My Fellow Citizens,

I extend my warmest greetings to all of you on the eve of the 60th Law Day of our country. The legal and judicial fraternity of our country, as well as people at large, celebrate November 26 of each year as National Law Day because it was on this day in 1949 the Constituent Assembly of India had adopted our Constitution, which subsequently came into effect on January 26, 1950.

Law Day is an occasion on which we pay our humble tribute to the unique vision and genius of the framers of our Constitution. It prompts us to reflect upon and renew our pledge to protect, preserve and extend the values enshrined in our Constitution. The very first goal of the Constitution, is to secure justice to all — social, economic and political. This mandate not only shapes the rights of the people but also serves as a command to all those who wield authority in the name of the State. As the head of the Indian judicial system, it is my duty to keep the nation informed about the state of affairs in this branch of government.

An independent, accessible and efficient justice-delivery system is a pre-requisite for maintaining healthy democratic traditions and pursuing equitable development policies. In the last six decades Indian courts have played a leading role in protecting constitutional values and upholding the rule of law in our country. The vital social role of the courts has been strengthened by the creative reading of ideas such as ‘equal protection before the law’ and ‘personal liberty’. Especially with the evolution of the Public Interest Litigation (PIL) movement over the last three decades, the understanding of rights has expanded in many directions. From conferring guarantees of a civil-political nature, the fundamental rights have been interpreted to include positive socio-economic obligations on the State. This means that the courts of law are unique spaces where just solutions are devised, in spite of the socio-economic inequalities between the litigants.

     JUSTICE KG BALAKRISHNAN CHIEF JUSTICE OF INDIA

JUSTICE KG BALAKRISHNAN CHIEF JUSTICE OF INDIA

India is a diverse country where we are still grappling with social stratification and discrimination on the grounds of caste, religion, gender, language, race and ethnicity among other factors. Conflicts that arise out of such identity-based differences or those related to the distribution of material resources are often very complicated since they involve multiple interest groups. Adjudicating such disputes often calls for a departure from the norm of adversarial litigation and the judges have accordingly devised procedural innovations to respond to the needs of litigants. This means that the role of a judge is not only that of applying the existing rules in a mechanical manner but also interpreting them in a creative manner in order to pursue the ends of justice.

I am deeply gratified by the trust and confidence that the people of this country repose in our judicial system. About 1.8 crore fresh cases had been filed in Indian courts in 2008, reflecting a steady increase in the rate of institution of fresh proceedings over the years. Against this, approximately 14,000 judges disposed of about 1.7 crore cases in 2008, demonstrating a disposal rate of about 1,200 cases per year by each judge. This was achieved notwithstanding the severe shortage of judges and their very heavy work load, abysmal infrastructure and a very challenging environment.

In all, Indian courts processed some 4.8 crore cases in 2008 — which is one of the largest volume of cases faced by any national judicial system in the world. Expert studies have suggested that our judicial strength is only very minimal and large expansion is required to dispose of this case-load. It is therefore quite natural that most cases take several years to be completed. Such is the shortage of judicial officers that, on average, an Indian judge has a total of about 25 minutes to devote to each case.

A significant consequence of the severe shortage of judges is that a substantial number of poor people are unable to obtain the protection of courts to preserve and strengthen their rights. This ‘docket exclusion’ does not bode well for the country as affected people may turn to alternative (including violent) means for securing their rights. On the contrary, there is an urgent need to promote ‘docket inclusion’. There is also a widespread perception that many people are being deterred from approaching the courts on account of apprehensions about undue delay in the delivery of justice. This may indeed be true in some parts of the country where the number of civil cases being instituted are very low in proportion to their respective population-levels. Therefore, any meaningful agenda for judicial reforms must account for the twin problems of high pendency levels as well as the limited access to justice for some sections of society.

This means that even as we devise strategies to combat the existing backlog, we must also prepare for the further expansion of court dockets in the coming years. With gradual improvements in development indicators such as income-levels, access to education and healthcare, we should expect the previously marginalized sections to approach the judicial system in larger numbers, enhancing “docket inclusion”.

In many cases, the undue delay in disposal is a consequence of hurdles placed in the procedural steps involved in litigation. In the course of a legal proceeding, there is a likelihood of delay at various stages from the service of notice upon the parties, the framing of issues, submission of pleadings, examination of witnesses, production of documents and the counsels’ arguments. If a party apprehends an adverse result, there is a tendency on part of litigants or practitioners to place obstacles in these proceedings. The logical response to this endemic problem is that judges need to be more proactive in managing the flow of proceedings before them. Attempts to delay the proceedings should be treated firmly but it must also be kept in mind that the desire to improve procedural efficiency should not compromise the quality of justice being delivered. As inheritors of the common-law tradition, we are bound to follow the principles of natural justice, namely that ‘no man shall be a judge in his own cause’, that ‘no persons shall be condemned unheard’ and that ‘every order will be a reasoned order’.

Even though the judges are the main actors in the justice-delivery system, their efficiency is closely related to the behaviour of advocates, litigants, investigating agencies and witnesses among others. While public scrutiny is rightly being directed towards the performance and accountability of judges, there is also a need to examine the responsibilities of all the other participants in the judicial system. In particular, there is an urgent need to tackle the institution of frivolous claims and the giving of false evidence. Judges can perform their fact-finding and adjudicatory roles in a satisfactory manner only if they receive the co-operation of all the stakeholders. In this sense, the judicial function is as much a collective enterprise as the other wings of government.

A meaningful shift will only occur if attitudes change among the bar. Ultimately it is the responsibility of legal practitioners to advice their clients on the suitability of resorting to litigation. For resolving many categories of disputes, adversarial courtroom litigation is not appropriate since disputes can be amicably resolved at the pre-trial stage. With the objective of promoting awareness about these methods, full-time Mediation Centres have been established in the various High Courts as well as some of the District Courts. Their function is to not only provide mediation services but also to impart training about the same.

I must also emphasize that a large portion of the increase in litigation rates can be attributed to stronger remedies that have been introduced through Central and State legislations over the years. In particular, our trial courts are confronted with a disproportionate number of cases involving the dishonour of cheques, motor accident compensation claims, domestic violence and corruption-related cases. This is of course a natural consequence of the fact that litigant-friendly procedures and remedies were incorporated to address such grievances. Hence, there has been an incentive for parties to come forward and file cases in these categories. However, there has not been a commensurate increase in the strength of judges needed to decide these cases.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

In recognition of this fact, the strength of the Supreme Court and the various High Courts has been gradually increased. However, it is the strength of the subordinate courts which calls for a drastic increase. I have repeatedly called for targeted interventions by way of increasing the strength of the subordinate judiciary, while emphasizing the need for establishing more Family Courts, CBI Courts and specialised magistrates’ courts. In recent months, a lot of attention has been drawn to the proposal for establishing ‘Gram Nyayalayas’. Under the Gram Nyayalayas Act, 2008 judicial officers of the rank of Civil Judge (Junior Division) will be appointed to function at the block-level. The intent of course is to bring the justice-delivery system closer to rural citizens who have to otherwise travel to distant district centres. It is estimated that nearly 5,000 judicial officers will be needed to occupy these positions.

Since 2007, some important steps have been taken to improve the quality of justice-delivery. Hundreds of judicial conferences have been organized through the National and State Judicial Academies as well as National and State Legal Services Authorities on the topic of delay and arrears reduction as well as enhancing timely justice to raise awareness about the problem and develop effective strategies. There has been substantially increased attention to the use of Alternate Dispute Resolution (ADR) techniques, in particular mediation and Lok Adalats. A system of planning and management is being developed and recommended to High Courts for their consideration. A National Judicial Infrastructure Plan, A National Judicial Education Strategy and a National Mediation Plan have been developed and are in different stages of implementation. The results of these massive initiatives have been encouraging. Reversing earlier trends, filing of new cases as well as disposal has gone up at the national level. However, aggregate pendency has increased because the increase in filing has been faster than the rate of disposals in general.

I must also comment on the importance of Legal Aid programmes, especially those which seek to impart legal literacy in remote and backward areas. We must acknowledge that access to legal education is still confined to a privileged few and that the existing pool of judges and lawyers is not adequate to bring about the changes that we desire. In recognition of this fact, a Committee headed by a sitting Supreme Court judge has been recently appointed to oversee the training of motivated young individuals as paralegals, who can then expand the reach of the legal aid programmes. We are also in the process of designing a project dedicated to the improvement of access to justice in the North-Eastern region of our country. It is our hope that improved awareness and access to legal remedies will help in mitigating the socio-political conflicts in troubled areas.

Efforts are also being made to incorporate Information Technology (IT) based solutions in order to strengthen the judicial system. Under the E-Courts project, most judicial officers in the country have been provided with computers, printers and access to legal databases. Steps are also being taken to digitize precedents as well as the permanent records of courts at all levels. At present the daily cause-lists, orders and judgments of the Supreme Court and the respective High Courts are freely available online through the Judgment Information System (JUDIS). In the coming years, the objective is to ensure that materials pertaining to all subordinate courts as well as tribunals will also be made freely available through this system.

Another important element of judicial reforms is that of organising educational programmes, which are held at the National Judicial Academy (Bhopal) and the various State Judicial Academies. These programmes are periodically held for the benefit of sitting judges from all levels. They are designed to raise awareness about the latest legal developments as well as the strengthening of skills for court-management, research and writing. Special efforts are made to sensitise judges to the complex interactions between law and social realities. These programmes also serve as a common forum for judges serving in different parts of the country to interact and learn from each others’ experiences.

Recently, the Union Minister for Law and Justice has also unveiled some proposals for systemic reforms. There are plans to establish a ‘National Arrears Grid’ which will compile reliable statistics on the institution, disposal and pendency of cases at all levels. The top law officers of the Central Government have also resolved to reduce the extent of litigation which involves governmental agencies. A ‘National Litigation Policy’ is being designed wherein administrative remedies will be strengthened in order to reduce the burden before the courts. A comprehensive legislation dealing with the subject of standards and accountability in the higher judiciary is also on the anvil.

To conclude, I would like to extend my heartfelt gratitude to all my colleagues who are serving at the various levels of the judicial system. I hope that they will all strive to uphold the high standards of dignity and integrity that are expected from anyone who holds a judicial office. I must also place on record my gratitude to the administrative staff members who have been working hard to keep pace with the increasing case-load. Like any public institution, the quality of justice-delivery also depends on the trust and confidence of the larger public. We rely on an active bar, a free press and a vigilant citizenry to point out our unintended mistakes so that we can improve our functioning. I sincerely hope that the dialogue between the judiciary and the various stakeholders in our society continues to take place in a cordial and constructive manner.

Jai Hind!

http://beta.thehindu.com/news/national/article54845.ece?homepage=true

The Copenhagen Summit

Posted in ENVIRONMENT, UNCATEGORIZED by NNLRJ INDIA on November 25, 2009

Background
The negotiating process on climate change revolves around the sessions of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP), which meets every year to review the implementation of the Convention. This year this process culminates in Copenhagen.

At Bali, Parties agreed to jointly step up international efforts to combat climate change and get to an agreed outcome in Copenhagen in 2009. Thus, an ambitious climate change deal will be clinched to follow on the first phase of the UN’s Kyoto Protocol, which expires in 2012.

Why is a deal so important?
We know the world is warming, on average by 0.74ºC during the past century, with most of that since 1970.

The IPCC has reported regularly on climate change science for 20 years. Its last report was “unequivocal” that climate change is with us, and is set to get drastically worse unless we take urgent action. Nature, through both oceans and forests, currently absorbs about half the CO2 we put into the air. The rest of it stays in the atmosphere for centuries. However, the amount of carbon soaked up by natural ecosystems is declining steadily. So stabilizing emissions is not enough. Every tonne of CO2 we emit makes things worse. To stabilize temperatures at a sufficiently low level, we have to stop emitting as fast as we can.

The United Nations Climate Change Conference in Copenhagen in December this year offers a historical opportunity to step up international action on climate change. A Copenhagen deal is essential to the global transition into green economic growth, and, most urgently, to help the world, especially the most vulnerable, adapt to impacts that are now inevitable.

Copenhagen needs to put in place the legal and policy framework that will enable the world to make the transition to climate-resilient, green global growth. To achieve this, governments in Copenhagen need to sign up to a new level of cooperation.

What if there’s no deal?
If things go as per Business as Usual (BAU) then we would have to face the severe impacts of changing weather patters and increase in the intensity of natural calamities. Global temperatures will continue to rise – by at least 2-4.5ºC by late this century.

These are some of the impacts from IPCC if such temperature rise occurs

1. By 2020 yields from rain fed agriculture might reduce significantly
2. Approximately 20-30% of plant and animal species are likely to be at increased risk of extinction if increases in global average temperature exceed 1.5-2.5°C
3. Widespread melting of glaciers and snow cover will reduce melt water from major mountain ranges (e.g. HinduKush, Himalaya), where more than one billion people currently live
4. More than 20 million people were displaced by sudden climate-related disasters in 2008 alone. An estimated 200 million people could be displaced as a result of climate impacts and sea level rise by 2050.

What would a good deal in Copenhagen look like?
A good deal would be one which would be able to limit the temperature rise to far below 2 degrees. The deal should enable that global greenhouse gas emissions peak by 2015, and start declining rapidly thereafter, reaching as close to zero as possible by mid century.

These should be the features of the deal
1. Legally binding emissions reduction obligations for industrialized countries, as a group, of at least 40% below 1990 levels by 2020.
2. Industrialized countries must also pay at least USD 140 billion annually, to support clean energy and other mitigation activities, forest protection and adaptation in developing countries.
3. Mitigation actions for developing countries in the spirit of a gradual widening, deepening and strengthening of the contributions from members of the UNFCCC, to achieve a 15-30% deviation from business as usual growth by 2020.
4. Establishment of a funding mechanism for ending gross deforestation and associated emissions in all developing countries by 2020

What are the concerns for India?
India is clearly willing to make its contribution in reducing GHG emissions but believes that mitigation actions could distract resources away from India’s overriding priorities, which are poverty eradication and economic growth.

What are the advantages for India from Copenhagen?

1. India could get the opportunity for “leapfrogging” from conventional technologies and adopting low-emissions methods and processes, India can avoid many of the unpleasant downsides of conventional technologies – the local pollution, ill-health for people and damage to nature. The green low-carbon technologies are also more efficient, they will save money in the long run.
2. India could get a chance to be the global leader in the world by setting examples for other countries on how to mitigate as well as adapt to climate change. India could showcase the opportunity that a low carbon future brings with it. India has already indicated on increasing its share of solar energy from zero to nearly 20 GW by 2020. Such actions would not only take India into the big league but also help India to sustain its economic growth.
3. The transition to a low carbon economy can be a launching pad for new jobs and industry in India, which would help India in reducing the gap between rich and poor along with helping India in reducing poverty.

What is expected of India at Copenhagen?
Every country needs to do its fair share in helping to reduce global emissions. Under the UNFCCC, it is India responsibility to be part of the solution. India at Copenhagen needs to play a constructive role in the negotiations. India needs to ensure that we achieve a fair, ambitious and legally binding (FAB) deal at Copenhagen.

In doing so India needs to limit its emission in the longer run. The actions India would take for limitations of emissions would be domestically binding. Some of these reductions would be done by India from its own money while the rest would be supported by developed countries. These actions should be in tune with the demands of science for developing countries which is 15-30 % deviations from BAU by 2020.

India does not need to take Quantified Emission Limitation Reduction Obligation which the developed countries need to take but India does need to take on deviation from business as usual in order to be on a low carbon development trajectory.

Has India’s policy on climate change shifted since Bali? If so how?
India has come a long way in the climate negotiations. From being extremely defensive, India has chosen to take a step forward and has engaged creatively in the negotiations.

If India emits only 4% of GHG why should we act at all?
Global warming is a global problem which would have a global solution. India might have a share of 4% in overall GHG emissions yet India does need to ensure that it is on a low carbon development pathway. India does have developmental priorities and needs to go a long way in order to provide everyone in India with a better standard of living. In doing so India emission are bound to grow in the shorter run, yet India should take steps which will ensure that in the longer run India does not go on a carbon intensive development trajectory and adopts a sustainable and equitable pathway.

The PM has said that our per capita emissions will always be below the world average. Isn’t that enough?

The PM has stated that our per capita emission would be always below world average but using the language of per capita emissions is not lucid. In India along with other countries the poor do not have a significant carbon foot print which means that when we deduct emissions based on per capita we undermine the existing economic diversity in the country. In India there is a huge disparity among the carbon foot print of the poor and the rich, this disparity is lost in a per capita aggregation. If we use the per capita argument we would not have inclusive development.

Should India be striking bilateral deals with China and the US?
The UNFCCC was established as a forum because climate change cannot be dealt with bilaterally. India can strike as many bilateral deals as possible to ensure deeper coordination and cooperation yet bilateral deals should not undermine the multilateral process of UNFCCC.

Is NO DEAL better than a BAD DEAL?
At Copenhagen we need to have a fair, ambitious and legally binding deal. We need to have a deal which is internationally binding and not politically binding. There is a need of the hour to have political will in order to ensure that we do not have a bad deal at Copenhagen. Science has given the verdict and it cannot change, change needs to come from politics. We do not want a photo opportunity at Copenhagen where world leaders shake hands. We need to see a vision which ensures that the world is on the pathway to keep global temperature well below a 2 degrees rise.

Courtsey: http://greenidol.in/know-more/the-copenhagen-summit/

Tagged with:

Damages for accidents

Posted in COMPENSATION by NNLRJ INDIA on November 22, 2009

Link compensation to the cost of living

BY VARINDER  KUMAR  IN THE TRIBUNE

Owing to negligent driving, a bus ferrying school children broke the railings of the Wazirabad Yamuna bridge and fell into the river, claiming 29 students in 1997. However, it took more than a decade for the athorities to decide the compensatory claims of the parents in 2009 — the basis being ‘fault liability’ of the driver, the bus owner and the insurance company.

The issue to be settled all along right from the Motor Accident Claims Tribunal, through the High Court, and finally to the Supreme Court was how to compensate the loss of the distressed parents.

Loss of life is indeed irrevocable. Nevertheless, to maintain the sanctity of a legal order, an attempt is made to devise some mechanism to compensate even if the loss is irreversible and, therefore, irreparable. This is the enigma that the law courts and the legislature are trying to resolve by evolving principles of compensation.

The most basic principle, evolved on the analogy of commercial contracts, is that the person, who has suffered loss on account of some accident, should be put in the same position by awarding him compensatory damages as if the negligent or tortuous act had not been committed at all!

But what about the loss in case of death of school students who themselves are dependant upon their parents? Most seemingly, the children bestow upon their parents a lot of love and affection and provide them emotional support and satisfaction, but all that deprivation and pain and suffering caused to them due to their accidental death is incalculable in money.

What pecuniary loss the parents have suffered by the untimely demise of their children? Lord Atkinson responded to this interrogative about a century ago when he observed in an English case Taff Vale Rly. Co. v. Jenkins, (1911-13) All England Reporter: “In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child’s lifetime. But this does not necessarily bar the parents’ claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived.”

The “prospective pecuniary loss” proposition has been adopted and developed by the Indian courts into at least two basic principles of pecuniary damages and non-pecuniary damages. The first one attempts to compensate, what is termed as, the “dependency loss” of the parents in future. This is the compensation for the loss of money support in terms of money.

The second principle attempts to compensate non-pecuniary damages, say, in the form of incalculable loss of love and affection as distinct from the money loss, but again in terms of money. In both cases, the only measure for determining damages is that the awarded amount should be adequate, just and reasonable.

In the application of these principles, however, the compensatory amount vastly varied. Extreme variation even within one and the same jurisdiction is disturbing. Surely, compensation award is intended neither to be a “bonanza,”  “largesse,” or “a source of profit,” nor “a pittance” to become an apology for compensation. This is how the Supreme Court has recently lamented in Sarla Verma v. Delhi Transport Corporation (2009).

True, this is due to the number of imponderables involved. Nonetheless, such a spectacle weakens the rule of law if we continue to remain in the realm of uncertainties.

To bring certainty and uniformity, the Supreme Court, in the course of its judicial decision-making, has evolved “the multiplier method” for the award of pecuniary compensation, and the concept of “conventional amount” for the award for non-pecuniary compensation.

The multiplier method is based upon the principle that the claimant must be paid a capital sum which would yield sufficient interest income to provide material benefits of the same standard and duration as the deceased would have provided for the dependents if he had lived and earned.

In the calculation of this capital sum, there are involved a number of variables, such as how much personal and living expenses need to be deducted while calculating the yearly loss of dependency, how much effect is given to the future prospects of the deceased, inflation, and general price rise that erodes value and purchasing power of money, how to decide and determine the suitable multiplier on the basis of length of dependency, how to discount for contingencies and uncertainties, et al. Over the years, the courts have standardised the value of various variables by keeping in view the profile of a relatively stable economy.

Likewise, the concept of “conventional sum”, which is paid for loss of life and not loss of future pecuniary prospects, is standardised. This is done by fixing an appropriate amount that the society considers just and proper and which is quite independent of financial position of the victim or the claimant, but dependant on the capacity and the ability of the deceased to provide happiness to the claimant.

The various principles evolved by the courts for eschewing variations have now gained statutory recognition with the incorporation of new provisions by amending Act of 1994 into the Motor Vehicles Act, 1988.  The new Section 163-A, read with Schedule II of the Act, provides for the payment of compensation on structured formula basis.

The tabulated data of this Schedule prescribes compensation to be awarded with reference to the age and income of the deceased. A bare perusal of this data instantly reveals at least two flaws that somehow or the other seemed to have crept in.

One, there is an amiss when a lesser compensation is prescribed where a higher multiplier of 18 (corresponding to the age group of 25-30 years) is applicable, and larger compensation with lower multiplier of 15, 16 or 17 (corresponding to the age group of 15-25 years).

And two, it is inconceivable how the higher compensation is awarded in case where the deceased was having no income on the basis of notional income of Rs 15,000 per annum, whereas lower compensation where the deceased had some income, say, ranging between Rs. 3,000 and Rs. 12,000 per annum!

The said Schedule bears some beneficial features of social security and standardisation that strengthen the rule of law by seeking objectivity in the vast realm of subjectivity. The Centre should review the Second Schedule from time to time keeping in view the cost of living as notified in the Official Gazatte and as envisaged under Sec 163-A of the Motor Vehicles Act.n

The writer, a former Professor and Chairman, Department of Laws, Panjab University, Chandigarh, is presently Director (Academics), Chandigarh Judicial Academy

http://www.tribuneindia.com/2009/20091122/edit.htm#3

 

Tagged with:

Token gesture

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 20, 2009

V. VENKATESAN in New Delhi IN THE FRONTLINE   DATED 20 NOVEMBER 2009

LAW MINISTER WITH THE CHIEF JUSTICE OF INDIA

LAW MINISTER WITH THE CHIEF JUSTICE OF INDIA

Inconsistency marks the Supreme Court’s attitude to transparency in public life and judicial accountability.

TWENTY-ONE judges of the Supreme Court, including the Chief Justice of India (CJI), posted the details of their assets on the court’s website. The details of assets of one judge, Justice H.S. Bedi, have not yet been provided. Justice B.N. Agrawal, who retired recently, also provided the details of his assets on the website on special request. (The details are available at http:// www.supremecourtofindia.nic.in/assets.htm.)

The court has claimed that the disclosure is purely voluntary and in accordance with the resolution adopted by the Supreme Court judges in 1997. Both the claims, however, are inconsistent with facts and reasoning.

In 1997, a Full Court meeting of the Supreme Court resolved that every judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office, and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The declaration so made should be to the Chief Justice of the court, and the Chief Justice should make a similar declaration for the purpose of the record, the resolution says. The declaration made by the judges or the Chief Justice, it adds, shall be confidential.

The Supreme Court’s suggestion that the latest disclosure is in accordance with the 1997 resolution raises more questions than it answers. It is thus asked whether this is the first time that judges have declared their assets to the Chief Justice of India and the CJI in turn has made a similar declaration for the purpose of the record. If the answer is in the affirmative, it is pointed out that the judges have failed to declare their assets “within a reasonable time of assuming office”, thereby weakening the court’s claim that the latest disclosure is in accordance with the 1997 resolution.

Further inconsistencies followed. The 1997 resolution meant the asset declarations to be confidential but did not intend to conceal from the public domain the fact whether the judges were indeed declaring their assets all these years. By making the judges’ asset declarations public, the November 2 exercise appears to be an advance on what that resolution had indeed promised. But there is no information on when the judges acquired these assets and when they first declared them to the CJI in accordance with the 1997 resolution. Observers point out that a mere description of current assets and investments, as the judges have done on the court’s website, without indicating the year and the current market value of the acquisition, does not help to achieve the objective of this exercise, which is to check whether a judge has acquired wealth disproportionate to his known sources of income after assuming office as a judge. That is why the 1997 resolution emphasises the need for declaration “within a reasonable time of assuming office, and thereafter when acquisition of any substantial nature is made”.

The Supreme Court’s second claim that the judges have declared their assets “purely on voluntary basis” has led to the question: why are the judges making such a claim? The implication is that they are under no legal compulsion to disclose their assets and therefore the public has no remedy if they find the declarations inadequate. The suggestion seems to be that because the disclosures are purely voluntary they cannot be subjected to strict standards of accountability.

The public disclosure follows a resolution adopted by the Full Court of the Supreme Court on August 26. The Supreme Court’s move is in response to a series of developments that have eroded the image of the higher judiciary. The Chief Justice of India, Justice K.G. Balakrishnan, has maintained that the Right to Information Act (RTIA) does not apply to him, and that he is not bound to answer queries whether there has been compliance with the 1997 resolution requiring the judges to declare their assets to him.

In August, the Central government, apparently after informal consultations with the Supreme Court, sought to introduce in Parliament a Bill disallowing public disclosure of the assets and liabilities of judges, but gave up the move following protests from members cutting across party lines.

The Supreme Court also challenged in the Delhi High Court a directive of the Central Information Commission (CIC) that it disclose to an RTI applicant whether judges have been disclosing their assets to the CJI in compliance with the 1997 resolution. On September 2, Justice Ravindra Bhat in the Delhi High Court rejected the Supreme Court’s challenge and upheld the CIC’s directive. Subsequently, the Supreme Court appealed against the judgment before a Division Bench of the High Court, claiming that it was erroneous and that the 1997 resolution had no legal sanction. The Division Bench posted it for hearing by a three-judge Bench of the High Court.

However, the Division Bench did not stay Justice Bhat’s judgment. In his judgment, Justice Bhat directed the Central Public Information Officer (CPIO) of the Supreme Court to divulge the information within four weeks from September 2 to the RTI applicant, Subhash Chandra Agrawal.

The Supreme Court did not divulge this information to Agrawal. It claimed in its reply to him that it was not bound to do so because it had filed an appeal against the judgment. The CPIO declined to answer Agrawal’s other RTI queries concerning the appointment of judges and the implementation of the 1997 resolution, citing the court’s appeal against Justice Bhat’s judgment. As filing an appeal does not amount to a grant of stay by the High Court, the CPIO’s reply to Agrawal made observers wonder whether the Supreme Court was aware of the correct legal position.

The details of assets held by Supreme Court judges may lead one to believe, wrongly, that it is wealth accumulation that matters in determining the financial probity of a judge. Comparison of a wealthy judge with a not-so-wealthy judge is not likely to leave us any better informed about the integrity of a judge. In other words, a wealthy judge may score high on integrity, whereas a judge placed at the lower end of the wealth scale may turn out to be dishonest.

While describing how the financial declaration system in the United States Supreme Court operates, Aparna Chandra, a visiting faculty member at the National Law School, Bangalore, wrote on her blog: “It does not seem to be focussing only on the tracking of wealth accumulation (though that is of course a necessary component), but also on determining issues of conflict of interest. Hence, a major portion of their declaration deals with gifts, etc., received by judges, and visits, conferences and lectures attended by them, along with honorarium or reimbursement of conveyance received. In the light of the Ghaziabad (P.F.) scam that is still under investigation (many judges were alleged to have received gifts from the main accused in this scam), I believe financial disclosure by judges in India should contain this component as well.”

She added: “Judges in India do go for a lot of conferences and talks, mostly abroad. It would be interesting to find out, and necessary for the public to know, who is organising these trips, and what they are paying for, etc.”

Indeed, Justice Ravindra Bhat, in his September 2 judgment, recommended the U.S. experience as a model for the disclosure scheme to be evolved in India (at para 77). It is possible to suggest that judges of the Supreme Court and High Courts may be reluctant to disclose their finances because of genuine privacy concerns. Thus Justice Bhat recommended for consideration the U.S. Judicial Disclosure Responsibility Act, 2007, which amends the U.S. Ethics in Government Act of 1978 to: (1) restrict disclosure of personal information about family members of judges whose revelation might endanger them; and (2) extend the authority of the Judicial Conference to redact certain personal information of judges from financial disclosure reports.

The Supreme Court appears to have been influenced by populist pressures for transparency rather than the need to evolve suitable norms while deciding to place the details of judges’ assets on the court’s website.

Conflict of interest

Details of investments by judges, also shown on the website, have brought under scrutiny recent instances wherein conflicts of interest have been alleged.

On November 4, Justice R.V. Raveendran recused himself from the Bench hearing the dispute between Mukesh Ambani’s Reliance Industries Limited (RIL) and Anil Ambani’s Reliance Natural Resources Limited (RNRL). The dispute between the Ambani brothers is over the pricing of gas from the Krishna-Godavari basin on India’s east coast. The RNRL claims that it has got the right to buy gas from the RIL under a 2005 contract at rates much lower than the government-approved price. The RIL says the contract is not binding on it because of the changes in the government’s policies.

When the hearings began in October, Justice Raveendran declared that he held shares in both companies in almost equal numbers. Counsel for both parties said they had no objection to Justice Raveendran hearing the matter, and, given the consent, Justice Raveendran felt he was justified in hearing the matter. Counsels’ consent was duly recorded in the court’s proceedings.

In doing so, he was simply following the precedent set by Justice S.H. Kapadia, who had, in 2008, while being part of the Forest Bench, disclosed that he had shares in Sterlite, Vedanta’s sister company, which was before the Bench in connection with the aluminium plant it was setting up in Orissa.

As counsel did not object to his hearing the matter (their consent was apparently expressed orally, and was not part of the court’s record), Justice Kapadia went ahead and passed the judgment on behalf of the Bench, favouring the Sterlite group. The Central Empowered Committee set up by the Supreme Court had recommended against the plant, and the aggrieved tribal people were not represented before the court.

Both Justice Raveendran and Justice Kapadia relied on Point 11 of the Restatement of Values of Judicial Life, adopted in the Chief Justices’ Conference in December 1999. It read: “A judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.”

However, the Supreme Court has held in many cases that if a judge has a pecuniary interest, howsoever small, it automatically disqualifies him or her from hearing the case. Seeking the consent of counsel appearing before a judge in such cases does not mitigate such disqualification, say observers. A code of conduct adopted by judges subsequently cannot replace a binding legal principle laid down by the Supreme Court in many cases.

These truisms have apparently compelled judges to be extra careful. On November 4, Justice Raveendran, who was part of the three-judge Bench hearing the RIL-RNRL dispute, recused himself from the case saying his daughter worked for a law firm that was advising RIL in some other matter and that it came to his knowledge only on November 3. The CJI reconstituted the Bench by including Justice B. Sudarshan Reddy (the CJI and Justice Sathasivam are the other members of the Bench), and restarted the hearing afresh.

Justice Markandey Katju, who was hearing a dispute between RIL and Bharat Petroleum Corporation Limited over the pricing of naphtha, recused himself from the case on November 4, citing shares held in RIL by his wife, even though the hearings had concluded and the judgment had been reserved.

Justice Kapadia too recused himself – this time without asking counsel for the parties before him – from hearing a petition seeking to stay the implementation of the public offer made by Vedanta Resources to buy a 20 per cent additional stake in the iron ore exporting firm, Sesa Goa, because he held shares in Sterlite.

Justice Kapadia’s latest recusal only exposed the inconsistency in judges’ approach to issues of conflicts of interest. After all, the maxim Nemo iudex in causa sua (No one should be a judge in their own cause) applies strictly to any appearance of a possible bias, even if there is actually none.

As the saying goes, justice must not only be done, but must be seen to be done.

http://www.frontlineonnet.com/stories/20091204262403300.htm

CLICK THE LINK TO READ THE ARTICLE IN FRONTLINE

Judges’ assets:

Token gesture

Tagged with:

Conflicts of disinterest

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 19, 2009

By Soli J Sorabjee , Sr Advocate Supreme Court of India IN THE INDIAN EXPRESS NOV 19,2009

Impartial administration of justice is the hallmark of a democratic society based on the rule of law. One of its essential requirements is that there should be no bias or real apprehension of bias in a judge while adjudicating disputes between the parties. Partiality or bias can arise, for example, if the judge has kinship or cordial relations with one of the parties to the litigation. In that event the judge is conscientiously embarrassed and therefore decides to recuse himself from the case irrespective of the consent or “no objection” from the parties about his continued participation.

What is the position where a judge holds shares in a company which is a litigant before the court? At one time according to legal thinking in England the judge was automatically disqualified from hearing the case. This view was based on a 19th-century case of Dimes in which orders of the Lord Chancellor were set aside on the ground of bias because he had shareholding in the company which was a litigant before him and, more importantly, there was no disclosure of his financial interest. The decision in Dimes has been substantially diluted as is clear from the recent judicial trend in the United Kingdom, in Australia, in New Zealand and in South Africa, according to which the mere presence of financial interest does not necessarily lead to automatic disqualification of the judge unless the judge has a direct pecuniary interest in the outcome of the litigation. An Australian court has aptly observed, “The Dimes principle is not attracted simply by showing that a judge (or juror) owns a parcel of shares in a company whose pecuniary interests are in issue. If, as in the present case, the litigation could not possibly affect the value of the shares, then it cannot be said that the judge has a direct pecuniary interest in the outcome of the litigation.”

The current legal position is admirably summed up in the classic treatise De Smith’s Judicial Review (6th edition): “The rule of automatic disqualification for pecuniary or proprietary interests is a misnomer, and might be more accurately considered a rule of automatic disclosure. This is because the parties may waive the offer of the decision-maker to recuse himself. In addition, some financial or proprietary interests have been held to be subject to the de minimis rule and not invoke automatic disqualification where the interest is ‘so small as to be incapable of affecting the decision one way or another’.” Thus it has been held in England that “disqualification will not attach if the connection between the pecuniary interests of the decision-makers and the issue before them is very tenuous”. Indeed some commentators and jurists have opined that automatic disqualification doctrine is “mechanistic” and “smacks of abdication”.

The thrust of the House of Lords judgment in Pinochet II was non-disclosure by one of the members of the Bench, Lord Hoffman, of his links with the party which participated in the case. This is apparent from the observations of Lord Browne-Wilkinson that “the mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure”.

The Bangalore Principles of Judicial Conduct 2002 highlight the said legal position. Clause 2.5.3 states that a judge should disqualify himself or herself from participating in any proceeding “where the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy”. When does an economic interest disqualify a judge? Commentary on Clause 2.5 by the Judicial Integrity Group (Vienna 2007) with judicial experts from 35 countries states it is in cases where the judge or a member of his family is in a position to gain or lose financially as a result of the decision. For example, if as a company judge he has to decide whether a company in which he holds shares should be wound up. In that contingency, the judge should recuse himself because he has an economic interest in the outcome of the matter.

However a judge does not personally stand to gain or lose financially if he decides that the company in which he holds shares is liable to pay excise duty at a particular rate or that it is covered by an exemption notification under the Income Tax Act or that the company has infringed the trademark of another person. In such cases a judge cannot feel any embarrassment in deciding the case. But lest one of the parties may have an apprehension of bias the judge should make disclosure of his financial interest at the commencement of the hearing and if there is unequivocal no objection from all parties the judge should proceed with the hearing. Express statement of no objection amounts to waiver and, as the Judicial Integrity Group points out, in most countries it is competent to the parties to make a formal waiver of any issue of impartiality. Our Supreme Court has as far back as 1957 held that there can be a waiver in respect of alleged bias of a judge or a decision-maker.

For decades the practice in the high courts and the Supreme Court has been that judges can proceed with the hearing of a case if after disclosing their financial interest parties have expressed their no objection. This is in keeping with the Supreme Court judges’ resolution. In the bank nationalisation case judges disclosed their shareholding in some of the banks, to which the eminent counsel appearing for the government stated that they had no objection to the Bench hearing the matter. In the Bombay high court Chief Justice Chagla disclosed his shareholding in TISCO, no party or lawyer objected, including Sir Jamshedji Kanga, the doyen of the Bombay Bar. The case was heard and ultimately decided against TISCO.

If the judicial conscience is clear and there is disclosure of interest and unequivocal no objection by all the parties judges, as sturdy judicial sentinels, must discharge their function uninfluenced by misinformed criticism, media hype or gratuitous advice of distinguished senior counsel. Recusal from a case out of abundant caution or hypersensitivity tends to hamper the effective administration of justice because of the delay and costs incurred by recusal as pointed out by the distinguished Lord Bingham. It can also pave the way for sophisticated forum shopping, which tendency must be curbed.

The writer is a former attorney general for India

 

 

Conflicts of disinterest
Soli J. Sorabjee

Impartial administration of justice is the hallmark of a democratic society based on the rule of law.


Tagged with: ,

Lift The Veil Of Secrecy

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 18, 2009

Ronojoy Sen 18 November 2009, 12:00am IST IN TIMES OF INDIA

Rarely has the judiciary grabbed headlines as in the recent past. And that too for mostly the wrong reasons. The ‘voluntary’ declaration of wealth by Supreme Court judges comes after a contentious debate over whether the judiciary should be treated on a par with other public officials. The matter is not a closed chapter by any means. A court-room battle is still being fought over whether the Right to Information Act applies to judges with the somewhat absurd situation of the Supreme Court contesting a high court ruling.

The declaration of wealth also comes in the wake of several corruption scandals, many of which are yet to be resolved. The list is long but some of them stand out: A retired chief justice of India was accused, possibly for the first time, of favouring relatives; the current CJI recommended the removal of a sitting judge of Calcutta high court for corruption; and in the Ghaziabad provident fund (PF) scam, 37 judges, including a sitting Supreme Court judge, have been accused of siphoning off money from the PF kitty of court employees. To top it all, the controversy over the proposed elevation of Karnataka chief justice P D Dinakaran – against whom there are allegations of land grabbing – to the Supreme Court continues to linger.

The intense public scrutiny of the higher courts is a critical moment in the history of the Indian judiciary. Indeed, an eminent jurist has gone so far as to say that this might be the biggest crisis for the judiciary since the Emergency. Worryingly, it could dent the high levels of trust that Indian citizens have traditionally reposed in the courts. In survey after survey, the judiciary has usually been ranked higher than other government institutions. In a 1996 nationwide survey, 46 per cent of the respondents said they had “high trust” in the judiciary compared to a measly 17 per cent for political parties. A more recent survey in 2004 found that the share of Indians willing to put their faith in the courts was 72 per cent, second only to the Election Commission.

There is, however, an upside to the poor publicity for the courts. It is rare in India for people to talk about judges and courts. For far too long, the judiciary has been somewhat of a closed book to the Indian public. While we’ve always given the judiciary high marks, there is precious little that we know about the men and women in black robes. This is in sharp contrast to the situation in democracies such as the US. During the confirmation of US supreme court judge Sonia Sotomayor earlier this year, everything from her love of Nancy Drew books to her moves on the dance floor was minutely dissected. There is good reason why Supreme Court nominees are discussed in such detail. US Supreme Court judges are political appointees for life, and the stakes are naturally very high.

This is of course not so in India where Supreme Court judges, or even chief justices, rarely stay long enough to stamp their authority or ideological preferences over a court that is much larger and more unwieldy than the nine-judge US supreme court. But if the appointment process has its faults in the US, in India it’s as opaque as it can get. In this context, the fairly vigorous debate in the recent past on the method of selection of judges and for imposing greater accountability on the judiciary is welcome.

Over the years, several Supreme Court judgements have reiterated that a five-judge collegium headed by the CJI is responsible for appointment of apex court judges. There have, however, been suggestions that the selection process be made more transparent. The parliamentary standing committee that looked into the Judges (Inquiry) Bill, which was introduced in 2006 and has since lapsed, suggested that appointment of judges should be entrusted to a body wider than the present collegium with “representation both from the judiciary and the executive”. The same committee suggested that investigation into impropriety by judges should be investigated not by the judiciary alone but by a more “broad-based committee” with representatives from the executive, Parliament and the Bar. The legislation will now be presented in a new avatar, the Judicial Accountability and Standard Bill, in the winter session of Parliament.

Declaration of wealth by judges has been an important part of the debate. There was an attempt earlier this year to introduce the Judges (Declaration of Assets and Liabilities) Bill in Parliament, which was rejected in the Rajya Sabha. The primary reason for the rejection was a clause in the Bill that said declaration of assets would be made privately to the chief justice and wouldn’t be available to the public. The recent voluntary declaration of wealth by SC judges on the court website does not clear these misgivings. Since it’s voluntary, judges are under no compulsion to declare their assets; neither can the details be called into question. It’s worth noting that all US Supreme Court judges are required to declare their assets under the Ethics in Government Act, 1978.

An independent judiciary is essential for a democracy and the Indian Constitution does well to safeguard this independence. But this need not come at the expense of transparency and accountability. Otherwise our confidence in the judiciary could take a knock.

http://timesofindia.indiatimes.com/home/opinion/edit-page/Lift-The-Veil-Of-Secrecy/articleshow/5240337.cms

Tagged with:

Can the judiciary legislate? SC divide out in the open

Posted in CONSTITUTION, DEMOCRACY, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 18, 2009

Rakesh Bhatnagar / DNA

New Delhi: The divide in the supreme court (SC) on whether the judiciary can legislate under articles 141 and 142 in larger public interest and to do complete justice when the executive is indifferent has come to the fore after justices Markandey Katju and AK Ganguly, who share a bench, expressed divergent views on the issue and referred the matter to the constitution bench for a final decision.

While Katju is of the opinion that the law declared by SC shall be binding on all courts in the country, Ganguly says the top court “may pass such decree or make such order as isnecessary for doing complete justice in any case pending before it”.

Such a decree or order “shall be enforceable” throughout the country in the same way as “prescribed by or under any law made by parliament” until a law is enacted by parliament, he says.

The conflicting views emerged on the issue of a bench comprising justices Arijit Pasayat
and Ganguly directing three years ago the setting up of a committee headed by former chief election commissioner JM Lyngdoh to examine the functioning of student unions and the ragging menace. The committee suggested a series of measures to curb ragging and streamline elections to student unions, which the court accepted and ordered to be implemented.

However, Pasayat retired earlier this year and Katju, who replaced him, questioned the implementation. He quoted an earlier judgment in his support that says, “….If there is a law, judges can enforce it, but judges cannot create a law and seek to enforce it”.
He also underscores the importance of the doctrine of separation of powers (SoPs), saying, “One organ of the state should not encroach into the domain of another. The judiciary should not, therefore, seek to perform legislative or executive functions.”

Dispelling Katju’s impression about the court’s power to intervene in matters of public importance and violation of fundamental eights, Ganguly stresses that the rationale of the doctrine of SoPs is “to uphold individual liberty and rule of law”.

“Vesting all powers in one authority promotes tyranny,” he says, “The principle of SoPs has to be, therefore, viewed through the prism of constitutionalism.”

The power vested in the court under articles 141, 142, 32 and 226 “has been plenary and very wide and enables the Supreme Court to declare the law which shall be binding on all courts within India and article 142 enables it to pass any order “to do complete justice”, he says.

It’s because of this power that SC could pass the landmark judgment preventing sexual harassment at workplace, the judge says.

http://indialawyers.wordpress.com/wp-admin/post-new.php

Tagged with:
Follow

Get every new post delivered to your Inbox.

Join 3,830 other followers

%d bloggers like this: