BY TNN / TIMES OF INDIA
NEW DELHI: Finding the plastic industry association’s challenge to a Delhi government notification banning use of polybags in market places to be a little out of sync with the present eco-friendly cry, the Supreme Court on Friday advised Delhiites to carry bags from home to markets and malls. A Bench comprising Chief Justice K G Balakrishnan and Justices V S Sirpurkar and Deepak Verma expressed disagreement with senior advocate K K Venugopal’s submission that the ban was violative of the industry’s right to carry on business.
Venugopal assailed the Delhi High Court order directing the Delhi government to consider banning plastic bags in the national capital and said can a court direct a governemnt to legislate? He said that paper and jute bags were quite costly and out of reach of the common man, who has been put to a lot of inconvenience by the ban on easy-to-carry and cheap plastic bags.
The Bench said: “Did you consider the hazardous effect of the largescale use of plastic bags to environment? It can play havoc.” However, it agreed to consider the plea of All India Plastic Industries Association and posted the matter for detailed hearing in the month of April.
But before deferring hearing on the plea, Justice Verma had an advise for Delhiites: “Let everyone carry a bag to the market place like the good old times. I carry one everytime I go to the market.” Acting on a PIL filed by V K Jain and following certain directions from the Delhi HC, the Sheila Dikshit government had on January 7 last year issued a notification banning use of plastic bags in all market complexes and malls in the national capital. The HC had on July 15 last year dismissed the plastic industry association’s petition challenging the ban.
BY RAKESH BHATNAGAR IN DNA
New Delhi: The Supreme Court (SC) has flayed the political executive and the bureaucracy, stating that they are denying the marginalised, the weak, and the scheduled castes and tribes their legitimate constitutional guarantees.
The court made this extremely harsh observation in a case involving a tribal woman, Nila Die, whose land in Orissa had been acquired by the government for a railway project 19 years ago. Though Die was entitled to monetary compensation and a job in the railways for a member of her family, she received neither from either the South Eastern Railway (SER) or the Orissa government, who were parties to the case.
In 2001, Nila Die had moved a tribunal and the Orissa high court for her legitimate dues, spending a considerable amount of her limited resources in the process. The Orissa high court ruled in her favour in 2009 and directed the railway authorities and the state government to provide her son a job.
The government did not. Nor did it immediately file an appeal in the SC, but did so 203 days later.
A bench comprising justices GS Singh and Asok Kumar Ganguly on Thursday took strong exception to the attitude of both the Orissa government and SER, pointing out that when it came to “implementation of the legislative and executive measures intended to benefit that class of society, those involved in the operation of bureaucratic system, at times, make all-out efforts to deprive the have-nots of their legitimate dues”.
The court rejected the government’s plea that Nila Die’s file “was tossed between different functionaries of the railway administration and the advocates”, saying such excuses might have been accepted a decade-and-a-half ago, given the red tapism and lethargy in the government’s functioning.
“But such an approach is not compatible at a time when the people of the country are demanding accountability of all concerned with the functioning of public institutions,” the apex court added.
Upholding the HC order, the judges said, “It is most unfortunate that instead of adopting a sympathetic and humane approach towards a woman belonging to the scheduled tribe, who was deprived of the only source of livelihood in the name of public interest, the functionaries of the state administration and SER treated her with utter contempt and deprived her son of the legitimate right to be employed as per the policy of the Railway Board.”
“This is a sad commentary on the functioning of the state apparatus,” said the court.
The SC imposed a cost of Rs50, 000 on the Union government and ordered that this money be given to Nila Die within two months. Within the same period, the government was directed to get a job for Die’s son. The judges also asked for a report on the implementation of their order.
J. Venkatesan IN THE HINDU , JANUARY 30 , 2010
Deprived of livelihood, a man loses all fundamental and Constitutional rights
Mantras of globalisation fast becoming raison d’etre of judicial process: Justice Singhvi
In large number of cases, relief denied to employees falling in the category of workmen
New Delhi: The Supreme Court has expressed anguish at courts’ apathy to the plight of workers being retrenched in the guise of globalisation and economic liberalisation. A Bench of Justices G.S. Singhvi and A.K. Ganguly, in different but concurring judgments, regretted that there was a visible shift in the courts’ approach to cases involving interpretation of social welfare legislation.
Justice Singhvi said: “The attractive mantras of globalisation and liberalisation are fast becoming the raison d’etre of the judicial process and an impression has been created that the Constitutional courts are no longer sympathetic to the plight of industrial and unorganised workers.”
He said: “In a 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 by creating bylanes and sidelanes in the jurisprudence developed by this court in three decades. 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 will put an unbearable burden on the financial health of the establishment.”
Harjinder Singh, appointed in the Punjab State Warehousing Corporation in March 1986, was dismissed in July 1988. Acting on a writ petition, the Punjab and Haryana High Court stayed the order and he continued in service. Finally in September 1992, the petition was dismissed as withdrawn.
In November 1992, another order was passed sacking 22 workers including the appellant. While the labour court directed their reinstatement with 50 per cent back wages, a single judge of the High Court, entertaining an appeal, ordered compensation of Rs. 87,582. The present appeal is directed against this judgment.
Justice Singhvi pointed out that “Courts have readily accepted such plea unmindful of the accountability of the wrongdoer and indirectly punished the tiny beneficiary of the wrong, 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. It needs no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status of opportunity, the freedoms enshrined in the Constitution remain illusory.”
In a separate judgment, Justice Ganguly said: “I am in clear agreement with Justice Singhvi that this court has 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 should make an effort to protect the rights of the weaker sections in view of the clear Constitutional mandate. Social Justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos, in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity,” he said.
He said: “I share the anxiety of Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy. 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 their thousands from all over the country, along with escalation of terrorism, throw a dangerous signal.”
The Bench restored the labour court order and awarded Rs. 25,000 in costs.
T. Ramakrishnan IN THE HINDU
Former CJI Verma stresses transparency in judiciary
CHENNAI: An alternative method of removal of judges should be evolved at the earliest, the former Chief Justice of India, J.S. Verma, said here on Friday. Answering questions on corruption in judiciary and accountability of the judges, Justice Verma told The Hindu that “what was initially considered to be sufficient is being found inadequate. A nationwide debate is now required to work out details of the alternative procedure in addition to the existing system.”
Under the proposed system, if the President considered any allegation against judges worth pursuing, he or she must form an opinion after consulting the Chief Justice of India and any other person. The President could form a committee of judges, whose finding should be final. If the committee found a judge guilty, the President could give an option to the judge concerned to resign or face action. Justice Verma, who was the CJI during March 1997-January 1998, said the existing procedure for the removal of judges could not be started unless 50 members of the Rajya Sabha or 100 members of the Lok Sabha presented a petition. Then, the Rajya Sabha Chairperson or the Lok Sabha Speaker constituted a committee of judges. If the findings of the committee were adverse, it was for Parliament to adopt them.
Referring to the [former Supreme Court judge] V. Ramaswami case, Justice Verma said that though the committee of judges in this case had given an adverse finding, “for political reasons, Parliament did not [accept it].” Justice Verma was not for abolishing the present procedure but said there could be two systems. He emphasised that if the judges’ committee gave adverse findings that should be sufficient for the President to take action. A law should be framed in this regard. While framing a mechanism for ensuring judicial accountability at the highest level, the independence of the judiciary should not be compromised. “Judicial accountability is a facet of the independence of the judiciary. And, this is mooted to protect honest judges who are in plenty.”
On the question of appointment of judges, Justice Verma, the author of the majority opinion in the Second Judges’ Case (1993), said the ruling envisaged a joint participatory system involving the judiciary and the executive. While the judiciary would take care of the legal acumen of the person to be appointed, the executive would go into the antecedents and character of the person. In the area of non-appointment on the grounds of antecedents or character, it was left to the executive to reject the candidate. Also, when the opinion of the collegium was not unanimous, the executive was not bound by it. The ruling did not stipulate anything new but formalised the procedure followed from the beginning.
Asked whether the process of appointment required to be revisited, he said: “We need to examine the aberrations, whether they are there because of the existing system or because of the way it is working. In my view, it is the working which is failing, not the system.”
Justice Verma said that when he was the Chief Justice of Madhya Pradesh and Rajasthan High Courts and the CJI, he took into confidence his senior colleagues and lawyers on the issue of appointment of judges. “My ruling says ‘consult as many’.” Once the appointment was made, everything in writing should be made available in the public domain. “This will act as an internal check.” He had no objection to making public his correspondence, on the appointment of judges or any other administrative matter. He said the perception among sections of the Bar and in the judiciary about the collegium of judges was that it was “not satisfactory.”
“And I cannot reject it as unreasonable. That’s why transparency is necessary.”
The Delhi High Court slammed the culture of adjournment that has created major bottlenecks in the country’s justice delivery system. The “latitude” shown by its courts is a reason why lawyers’ attempts to let a case drag on succeed, it observed.
Justice S N Dhingra said, “It is seen that these efforts of dragging the case succeeds because of the latitude shown by the High Court in allowing such mercy pleas and in acceding to requests of granting one more opportunity. It looks as if there is an understanding between the courts and the advocates that come what may, the orders of trial courts refusing adjournments shall be set aside on mercy pleas and one more opportunity shall be granted.”
The judge added, “It is because of this attitude that in almost all the cases where the advocates intend to drag the case, either they let the case get proceeded ex parte (without representation) or they do not examine the witnesses or seek adjournment subject to a cost that they do not pay. And when the evidence is closed, they rush to the High Court and pray for one more opportunity, which they normally get with some more costs.”
Justice Dhingra expressed anguish at the frequent pleas moved by the lawyers to get more opportunities to examine witnesses after the lower courts declined them more chances. The observation was made as he dismissed a similar application moved by a woman who was refused another opportunity to examine a witness by a guardianship judge in March and July last year.
“The entire unwritten procedure, which is followed on the basis of previous precedents, has created bottlenecks in the entire judicial system and a lot of the court’s efforts and time is wasted. Efficiency comes down,” the court noted.
It also slammed the lawyers for seeking adjournments on frivolous grounds. “A separate breed of advocates has cropped up: ‘adjournment experts’ and ‘case dragging experts’. Such advocates are deliberately engaged who put forward all kinds of excuses to see that the case is adjourned. “
Looking to improve the conditions prevailing in the courts, Justice Dhingra further appealed the litigants to be “vigilant” and not leave everything on their advocates. “I consider this culture has to be brought to an end and no petition setting aside orders of the trial court, wherein cross-examination is closed or other steps are taken by them to enforce the procedures laid down by the statutes concerned, should be allowed on the ground that the petitioner should not suffer for the negligence of the counsel.”
The court suggested a litigant should engage another counsel if he/she found his counsel was not diligently handling the case and should also claim damages from such lawyers.