Brazenness of decisions inherent to political governance in India

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Comptroller and auditor general Vinod Rai recently set the political arena ablaze by saying that he was appalled by the brazenness of government decisions. He did not elaborate which were those decisions, when were they taken and their effect on the people, country and its economy. Before and during the Emergency, government decisions were inscrutable. They were taken as inviolable diktat because of the rasping repercussions it entailed to those bravehearts who opposed them publicly. This mindset allowed the political class to be brazen about decisions.Post-Emergency, public scrutiny of government decisions gained currency but brazenness seldom exited the power corridors.

A rag-tag political coalition in Janata Party came to power in 1977 mainly because its leaders served jail terms for raising their voice against excesses on people, But, could it prove anything against those who brazenly perpetrated the excesses on people?

A prime minister was assassinated by her Sikh bodyguards. What followed was brazen and brutal mass murder of Sikhs on the streets of the national capital and other parts of the country. Thousands were slaughtered in cold blood leaving permanent scars on the entire community. After nearly three decades, the question remains: Who got punished for that brazen mayhem?

Bofors scam was a political game-changer. On the plank of honesty and transparency, certain politicians toppled the ruling party but failed to prove anything for the next two decades about the brazenness in which bribes were paid in procuring one of the finest field guns for Indian Army. The CBI in its charge sheet gave details of what was going on then at 7, Race Course Road but could prove nothing during the trial, inviting judicial wrath. In 1993, those at the helm of a minority government brazenly bribed MPs to secure their votes on the floor of the House during a trust vote. The long arm of the law cast a shadow close to the then prime minister, but in the end did not touch him. The other conspirators also escaped.

In the 21st century, the MPs fell back on an old method – taking money for asking questions on the floor of the House. The disqualification of a MP in the 1950s was no deterrent. As many as 11 MPs faced disqualification for their brazen “cash-for-query” professionalism, throwing parliamentary decorum and their responsibilities and duties as representatives of people to the wind.If these were political brazenness coupled with complicity from the bureaucracy and investigating agencies, there were instances of brazenness in other spheres of governance.The law allowed the government to acquire land for public purposes to build infrastructure, institutions and industries. But the ‘public purpose” clause has been brazenly invoked by authorities to acquire precious fertile agricultural land only to be re-categorized and transferred to realtors for personal gain, turning a blind eye to the plight of the poor farmers and also to its ill-effects on food grain production.

Poverty and backwardness continues to haunt a large section of Indian society even 65 years after independence from colonial rule. Instead of laying out a proper strategy to alleviate poverty, the Planning Commission brazenly mocked at the poor by fixing the poverty line at Rs 32 per day. If you earn Rs 33 a day, then you are not poor! If one wants an example of brazenness in spending public funds to achieve zero result, then one need not look further than the Yamuna river. More than 18 years ago, the Supreme Court took over monitoring of steps taken by governments to make the river water potable. After three governments – Delhi, Uttar Pradesh and Haryana -spent more than Rs 5,000 crore in the last two decades, the Central Pollution Control Board (CPCB) gave its verdict: Yamuna is a drain with not a single drop of fresh water as long as it flows in its 22 km stretch in Delhi.

These are only a few of the appallingly brazen decisions and actions of the governments in the last couple of decades. This could be the reason why people in recent times have started leveling allegations brazenly against the political class.

They have waited in vain for decades hoping against hope that the political class would fulfill the basic promise “we the people” made to ourselves – “Justice, social, economic and political”. Why has the political class or the governments failed to ensure justice to people despite they empowering their representatives with every power under the Constitution?

Probably, the political class has failed to strike a balance between power that is conferred on them and the intent to do justice. The situation reminds one of the famous saying of French mathematician, physicist and philosopher Blaise Pascal, who had said, “Justice without power is inefficient; power without justice is tyranny… Justice and power must therefore be brought together so that whatever is just may be powerful, and whatever is powerful may be just.”

dhananjay.mahapatra@timesgroup.com

‘Activists keep arguing that it takes too long to prove a man guilty. But is that fair grounds to reject the rule of law in favour of kangaroo trials?

LAW MINISTER – ASHWANI KUMAR

IDEA EXCHANGE- PUBLISHED IN THE INDIAN EXPRESS

In this Idea Exchange, the new Minister of Law and Justice, Ashwani Kumar, speaks about judicial activism, and the right to privacy vis-a-vis the right to information. This session was moderated by Senior Assistant Editor Maneesh Chhibber

Maneesh Chhibber: There is a feeling that the Indian higher judiciary is going into areas that don’t concern judges. How do you intend to check that?

It is absolutely true that over the last couple of years, there is a widely-held perception that there is a treading into other domains by organs of the state whose remit is not that particular sector. It is equally true that what the judges do or say, they believe they say or do so by the command of the Constitution. Now who will determine the outer parameters and the constitutional laxman rekhas? The Constitution confers that right on the judiciary, yet I believe that recent judgments of the Supreme Court, including the one in the 2G spectrum case, have clearly spelt out the Supreme Court’s perspective with regard to interference in policy decisions. The highest court of the land has categorically reaffirmed the proposition that judiciary cannot concern itself with policy making nor can it go into the questions relating to the political domain. But the judiciary has said that it can intervene in the implementation or the manner of implementation of the policy. I don’t think the government has any quarrel with that proposition.

Maneesh Chhibber: It is said that judges get swayed and play to the gallery.

Judges are prone to be concerned with the prevailing environment of the day, yet the constitutional and judicial discipline demands that judges decide as objectively as the brief in front of them permits. In a large majority of the cases, judges do decide fairly. There have been cases where the general feeling has been that the judges have said a little more than what justice demanded but that was a more a function of the style of writing a judgment and style varies from judge to judge.

Amitabh Sinha: The Shah Commission has given its report on the proposed privacy law. What are your views on its recommendations and on the proposed privacy law?

I did take the initiative of establishing a high-powered committee of known experts to discuss the various aspects of the privacy law and the privacy rights that the Constitution confers on its citizens. Our privacy rights are derived from Article 21 of the Constitution. They needed to be translated and enforced through specific privacy legislation. The focus of the commission’s deliberations would have been on how to harmonise the imperatives of privacy protection and the right of the people to know. The right of people to know is as much a part of the constitutional imperative so we need a law which would harmoniously blend these two constitutional imperatives.

Amitabh Sinha: Would you say that the right of privacy, when enacted, essentially needs to be applied in inverse proportion to the public office you occupy? The higher you go up, the less the right to privacy becomes?

The right to privacy in India, culled out from Article 21, is a right that the Constitution recognises as an integral part of our human rights which is non-negotiable. A citizen who is also a public figure may be expected of greater transparency in the conduct of his official duties. But that argument, in my personal view, cannot be used to deny the very basic right to privacy of a public servant. The two rights must move in tandem.

D K Singh: How do you explain the fact that not a single judge has been impeached by Parliament so far? Is it because the judiciary is unblemished or is there some lacunae in the impeachment process which needs to be rectified?

I am really happy that the we have not had to use the impeachment proceedings against judges. Having said that, some people may argue that the difficulty in the impeachment procedure makes it impossible for the procedure to be followed. It’s an argument I accept. But it is in the fitness of things that we have inbuilt defences to ensure that the impeachment mechanism is not abused. If you were to make it easier, we would be vulnerable to the argument that Parliament is using the procedure to make inroads into the independence of the judiciary. It is certainly not my case that the judiciary at every level has an unblemished record. We have noticed cases of judicial aberrations. Up to now, we have left it to the inbuilt mechanisms within the judiciary to deal with such cases. But now that we have a Judicial Accountability Bill, we will, hopefully, establish a more effective legislative mechanism for addressing judicial aberrations.

Seema Chishti: Your government took a radical step on the Lokpal two years ago when you had a 10-member committee to draft the Bill. Would you think about such pre-legislative committees for future legislation?

Certainly, we are enriched by pre-legislative discussions with all stakeholders. I think it is a good thing. Laws are meant for the people and therefore, the more participatory the process of law-making is, the better it is for all. But it is an entirely different thing to say that you could leave the drafting of laws to people outside of the legislatures and Parliament. My view is that the drafting of legislation through Parliament and translating people’s views into the letter of the law must remain the preserve of the legislatures and parliamentarians. And I think my views have been validated by the experience of the past.

Harcharan Singh: Twenty- eight years have passed since 3,000 people were killed in Delhi after Mrs Indira Gandhi’s assassination. Not even five people have been convicted. As the law minister today, what plan do you have to see that justice is delivered faster?

Long unjustifiable delays in dispensation of justice erodes the faith of people in the justice delivery system. Over the last several years, there have been repeated attempts to ensure that affordable and expeditious justice is available to all. There are seven initiatives in the works now to achieve the promise of the Constitution of affordable and expeditious justice. One of my foremost priorities as law minister is to hasten the process of judicial reforms and that would cut the pendency of cases. We have around 3.15 lakh court cases pending in courts. But we are now introducing and reinvigorating the gram nyayalaya justice delivery system and the Lok Adalat system. The criminal justice system is another story all together and I agree with you that it can become very dissatisfying or frustrating or very oppressive. But I want to say something I believe in with all my heart—please do not, in the quest of momentary popularity or appeasing a sentiment, evade the time-tested system of criminal justice which states that presume a man to be innocent until proved guilty. That brings me to another point: trial by media offends the principles of fair trial which is integral to the rule of law. Media trials are unconstitutional. And yet, every day there is a trial by media on every issue. The argument that would be made by the great activists on television every day is that it takes too long to prove a man to be guilty. But is that fair grounds to reject the principle of the rule of law in favour of kangaroo trials?

Harcharan Singh: We had committees and commissions, whether it is the Gujarat riots or the Delhi riots. These commissions take years to gather evidence. What is the use of their findings after so long?

I agree that we need to do a lot more and must bring in amendments and changes in the law. We must adequately staff the legal structures by getting in more judges, more lawyers and courts. It will be my endeavour to try and push through the necessary judicial reforms.

Pranab Dhal Samanta: Where is the government on the proposal for a judicial appointments commission? Your predecessor also wanted to start a conversation with the Supreme Court on moving the two-judge benches to three-judge benches and looking at a permanent five-bench constitutional bench headed by the Chief Justice. Where are you on these issues?

On the second question, I would need to discuss this with the higher judiciary, with the Chief Justice of India. I do recognise that in the last several years, the demand on the judges of the Supreme Court to decide complex issues of constitutional law has increased exponentially and therefore, some kind of structured instrumentality has to be in place to ensure that the best possible judicial decisions are handed down on far-reaching issues without compromising on the judges’ responsibility towards other important litigations pending before them. On the judicial appointments commissions, the consultations with different political parties have taken place. A few details need to be fine-tuned.

Prerna (St Mark’s School, Janakpuri, Delhi): India stands 98 among 175 countries on the corruption index. Judiciary can play a positive role in checking corruption. What are your plans?

I am not sure if any country in the world has been able to completely eliminate corruption but that should not stop us from endeavouring to do so. It would be my endeavour to be a facilitator in the enforcement of anti-corruption laws and ensuring that the enforcement of criminal laws is not oppressive.

Dilip Bobb: What’s your view on Supreme Court judges taking up government-sponsored jobs immediately after retirement?

My personal view, not my view as the minister of law and justice, is that it would be a healthy tradition for judges of the Supreme Court not to accept post-retirement jobs. Having said that, it is equally true that given the complexities of the regulatory regime that we now have to advance our economic and social legislation, there is no substitute for experience. Given also that at the retirement age of 62 years, Supreme Court judges are still active and alert in mind, we need to have some of these wise men on tribunals for a while.

Karishma Kuenzang (EXIMS*): Cartoonist Aseem Trivedi was arrested on charges of sedition. What steps will you take to ensure that freedom of speech and expression and the law of sedition do not clash?

The charge of sedition can only be brought forward in an almost foolproof case. If every spoken word, sometimes in anger or without full reflection on the spur of the moment, is going to lead to a charge of sedition, then I do not know who will be saved from that charge.

Yogesh Rajput (EXIMS): As a former minister of science and technology, why do you think the government gives less importance when it comes to allocation of funds in R&D and science and technology?

The PM accords the highest importance to science and technology. In the 12th Five Year Plan, we have significantly increased public spending on R&D. It used to be less than 1 per cent of our GDP in the 11th Plan. In the 12th Plan, the R&D expenditure, both in the private and public sector, will be increased to about 2 per cent of the GDP, the single highest growth of expenditure in any department.

N P Singh: Should we see the transfer of Mr Jaipal Reddy to this ministry in the context of the PM giving priority to science and technology?

It may well be. I have the deepest respect for Mr Reddy, both for his scholarship and for his ability to read and grasp complex issues of science and technology.

D K Singh: What are your views on Arvind Kejriwal’s allegations that Mr Ranjan Bhattacharya influenced the government during Mr Vajpayee’s prime ministership?

I don’t want to dignify the comments of Mr Kejriwal by my rebuttal or by my comment. I am also not defending Mr Bhattacharya, but if Mr Kejriwal has said anything about an individual based on his information, who am I to comment?

Shishir Tripathi (EXIMS): When Justice Katju was in office, he raised the issue of nepotism in the judiciary.

It’s true that there has been a perception that this is not a healthy practice. I do not know what to say. Does it mean that if somebody needs to be elevated to the judgeship of the High Court, his nephew, son or daughter have to move out of the court? Or does it mean that he should decline to become a judge just because he does not want to deprive his children of the opportunity to practice in court? You need to have a balance on such issues.

Prashant Dixit (EXIMS): Several decisions of khap panchayats have created a furore. Don’t you think that the judiciary should interfere?

The law of the land is supreme and their decision is to be respected by all, be it a khap panchayat or any other panchayat.

 Transcribed by Ananya Bhardwaj & Priyanka Sharma

 * Express Institute of Media Studies

IDEA EXCHANGE- PUBLISHED IN THE INDIAN EXPRESS

Death is entirely discriminatory

DEATH PENALTY

ANUP SURENDRANATH IN THE HINDU

A life term for Kodnani and the hangman’s noose for Kasab show the arbitrariness in the judicial administration of capital punishment

Judge Jyotsna Yagnik’s invocation of human dignity while not awarding the death penalty in the Naroda-Patiya massacre case and the Supreme Court’s expression of helplessness while confirming the death penalty of Ajmal Kasab — sentenced in the 26/11 terror attack — go to the heart of the constitutional unviability of the death penalty. We would struggle to make any meaningful distinction in the culpability we attach to these two crimes but our collective response, in terms of the punishment they must receive, has been qualitatively different. While it will be debated whether it was appropriate for a trial judge to invoke concerns of human dignity at the sentencing stage, judge Yagnik’s judgment has also inadvertently demonstrated the inherent unfairness of the death penalty. One can’t help wonder about Kasab’s fate if he had appeared before judge Yagnik rather than judge M.L. Tahiliani. And it is precisely that unpredictability and inconsistency in the judicial administration of the death penalty that is at the heart of the principled objections to the death penalty.

Different responses

There has been very little discussion on why principled arguments against the death penalty should not apply in Kasab’s case. Raju Ramachandran, the amicus in Kasab’s case, did a terrific job in attempting to get the Supreme Court to commute Kasab’s death sentence but there has been very little else. As a nation and a society we seem to have quietly accepted the death penalty for Kasab despite all the objections that have been raised about the death penalty in the past. Kasab’s case is a significant setback for the move towards complete abolition of the death penalty in India. It was, in many ways, the perfect case for the death penalty. A profoundly hurt and grieving society, the guilt of the accused established through damning photographs and videos, wounded nationalism and the possible involvement of state actors across the border all contributed towards making Kasab’s case a strong validation of the need for the death penalty. It is as though we are acknowledging that there will be moments in our life as a nation where we will need to satisfy our need for collective revenge. A need satisfied with the gloss of the rule of law.

On what basis, then, do we not demand the death penalty for those who masterminded and led the carnage in Naroda-Patiya? Maya Kodnani as an MLA was supposed to represent and protect the interests of those in her constituency and not lead a mob of genocidaires to torture, rape and kill many helpless Muslims. Despite that, our acceptability of the punishments handed down in the Kasab and the Naroda-Patiya cases has proceeded along very different lines. There will certainly be no sustained demand for the death penalty for Maya Kodnani and Babu Bajrangi but there is widespread satisfaction at the confirmation of death penalty for Kasab. That this qualitative difference in our perception of the two crimes has found reflection in the judicial administration of the death penalty is most unfortunate with the invocation of human dignity in one case and no meaningful engagement with it in another.

The issue is not whether the death penalty offends human dignity or not. As a polity, we have unfortunately decided that it does not. The primary issue is whether it is possible to develop a model of administering the death penalty that is consistent and non-arbitrary. Judge Yagnik chose not to impose the death penalty because of her commitment to the position that the human dignity of all convicts must be respected. Judge Tahiliani either does not subscribe to that view or believes that it is inappropriate for a trial judge to take such considerations into account. Either way, it exposes why the ‘rarest of the rare’ framework cannot work in a fair and consistent manner. It ultimately leaves significant scope for judicial discretion where all sorts of factors creep in, and has ensured that comparing the death penalty in India to a lottery would not be an exaggeration. An analysis of death penalty cases in India from 1950-2006 by Amnesty International confirms that administering the death penalty has been an arbitrary exercise. Essentially, it was observed that in many similar circumstances some convicts were awarded the death penalty and others were not.

In the pursuit of consistent application of the death penalty, is the solution then to completely remove judicial discretion? Should we develop a list of very specific crimes where the death penalty is automatically awarded? Before it was found to be unconstitutional, Section 303 of the Indian Penal Code provided that an individual who committed murder while serving a life sentence would be automatically sentenced to death. Emphasising the importance of individual sentencing, five judges of the Supreme Court in Mithu v. State of Punjab found the automatic sentencing to be arbitrary and unjust. The inability of the sentencing judges to take into consideration individual circumstances while deciding the sentence, the judges felt, would cause grave injustice to the accused.

Achieving a balance between judicial discretion and individualised sentencing has proved to be an impossible task. The Supreme Court has tried to address this by developing guidelines in cases like Bachan Singh and Santosh Bariyar without much success. A damning indictment of such attempts has been the recent appeal by 14 eminent judges to the President to commute the death sentence of 13 convicts.

It is stated in the appeal that the Supreme Court itself has admitted to the wrongful administration of the death penalty in these 13 cases and that it would be a grave miscarriage of justice to not commute their sentence. It is time for the Supreme Court to recognise that it is attempting the impossible by trying to achieve a consistent application of the death penalty while maintaining the discretion of judges.

This debate between consistent application of the death penalty and individualised sentencing was at its peak in the U.S. Supreme Court in the 1970s. In Furman v. Georgia (1972), the U.S. Supreme Court raised constitutional concerns about the discriminatory and arbitrary use of the death penalty. After the judgment in Furman, many States responded with new guidelines for imposing the death penalty, including some mandatory death penalty schemes. While the attempt of the States to provide guidelines was upheld, the mandatory death penalty schemes were struck down in Gregg v. Georgia in 1976. However, the U.S. experience with ‘guided discretion’ since then has been disastrous and has been documented in great detail by the Steiker Report (2009) commissioned by the American Law Institute (ALI).

‘Tinkering with the machinery’

The ALI’s model framework for the administration of death penalty developed in 1962 provided the basis for the death penalty statutes that the U.S. Supreme Court found acceptable in Gregg. However, after the Steiker Report came to the conclusion that the death penalty continued to be administered in an arbitrary manner, the ALI deleted the death penalty provisions from its Model Penal Code in December 2009 with no proposal to introduce another framework. Justice Harry Blackmun’s judicial view on the death penalty while on the Supreme Court holds an important lesson for India’s judges in the Supreme Court. Appointed by President Nixon, he started out upholding the constitutionality of the death penalty including mandatory death sentences in the 1970s. Until a few months before his retirement in August 1994, Justice Blackmun was a supporter of the death penalty by upholding many attempts to achieve its non-arbitrary application. But in Callins v. Collins in February 1994, Justice Blackmun concluded that efforts of the U.S. Supreme Court over two decades since Furman to ensure fair and non-arbitrary application of the death penalty had proved to be futile. Finding the death penalty to be ‘fraught with arbitrariness, discrimination, caprice, and mistake’, Justice Blackmun revoked his support for the death penalty by declaring that he would no longer ‘tinker with the machinery of death’. The Indian Supreme Court must recognise the impossibility of what it is trying to achieve.

(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford.)

Raising the bar for the legal profession

LEGAL PROFESSION

N R MADHAVA MENON IN THE HINDU

Continued self-education is indispensable to honing the skills of lawyers in emerging areas of practice and to their social relevance in a changing world

The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest and most influential in the governance of the country. At the same time, it reflects the diversity of Indian society, its caste structure, inequalities and urbanised delivery of services depending upon the market forces. Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 per cent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.

Professional competence

In the midst of such drift and mediocrity, the world around including the legal environment changed and opportunities for legally trained persons grew phenomenally, thanks to globalisation, technological revolution and economic liberalisation. The emergence of the National Law School movement and the Five-Year Integrated LL.B. programme attracted talented students who stormed into the legal market making a dent, though small, in the monopoly of the top 20 per cent. It gave hope to the rest of the middle and bottom segments of the professional pyramid that by playing the game with some professional skills, they too could penetrate the higher ranks which were largely reserved for the kith and kin of successful lawyers and judges so far. This is the context in which continuing legal education (CLE) is to be appreciated for professional development and better delivery of legal services.

There is as yet no organised system of CLE in the country. In the 1970s and 1980s, when the Bar Council of India Trust organised few CLE programmes, there were enthusiastic responses from all segments of the profession. Advocates paid the cost, suspended their practice and joined the residential courses around areas like criminal advocacy, constitutional litigation, matrimonial adjudication, commercial law practice, etc. The idea of specialisation in legal practice was well received and professionalism in management of client services appreciated. The issue of professional ethics on which advocates had no training whatsoever came to be acknowledged. More importantly, the CLE programmes inculcated a sense of public service as the hallmark of the profession and advocates sought to expand the public-interest litigation jurisdiction of courts to enlarge access to justice for the common man. In short, even a casual attempt to offer CLE has ignited the imagination of a large number of advocates on the relevance and usefulness of continuing education to hone their skills in emerging areas of legal practice and maintain their role as social engineers in the process of development. Over the years, this awareness has spread among the younger members of the profession though, unfortunately, there was no one to offer the CLE programmes relevant to the changing demands of the legal market.

CLE is also a measure of the accountability of the profession. The days of the general practitioner have gone and specialists have entered the scene. The competence of the legal practitioner is critical for clients and any dilution in the quality of services rendered is bound to be counter productive. CLE is the major instrument of all professions to ensure minimum competence in the delivery of services. It enhances professionalism, accountability and public respect for the profession. In short, CLE is indispensable for maintaining professional competence and its social relevance.

Competence or quality is the product of knowledge, attitudes, values, skills and ability to apply them for professional tasks. Legal education in colleges hardly teaches anything more than knowledge and that too inadequately. Some skills are acquired in early days of practice through observation and participation. CLE alone can possibly give the rest to provide competence to a young lawyer for whom professional bodies at present have no alternatives to offer. In the past, a year-long apprenticeship and a bar examination hopefully provided some insight into abilities, values and attitudes. They have been abolished and the new entrants are left to their fate!

What makes a professional

What are the elements of professional attitude? It has to do with sensitivity to professional responsibility, due diligence in handling clients’ affairs, loyalty to the profession, orderliness in management of tasks and commitment to quality in all circumstances. These are not inherited but learnt and cultivated. Continued self-education is the attribute of a professional.

Values too are learnt and cultivated by professionals by deliberate application of mind. Competent legal practitioners who have won public esteem have a keen sense of personal and professional ethics. Competence and its continued maintenance is itself a professional value. Integrity and honesty always pay in a profession. Respect for the rule of law is another value which no professional can ignore at any time. Obligation to serve the cause of justice or fight injustice is an abiding value of a legal practitioner. CLE can make value education a central focus of its programmes and help new entrants to the profession be aware of the role of values for professional competence. It is in the sphere of upgradation of knowledge particularly in emerging areas of legal practice where CLE can help the most. Knowledge is not just an awareness of rules; it includes comprehension, application, analysis, synthesis and evaluation. Good law colleges attempt to teach through clinical methods, application of knowledge to solve problems through analysis, synthesis and evaluation. In India such colleges are few. There are very few teachers trained in clinical teaching methods. Therefore, there is a tremendous vacuum in professional training which is waiting to be addressed through CLE.

Finally, professional competence in the field of law is the outcome of skilled application of knowledge in which proper skills are decisive to the outcome. These include interviewing and counselling skills, negotiation and mediation skills, research and writing skills, communication and advocacy skills, drafting skills, fact gathering and articulation skills, time and stress management skills, etc. all of which can be acquired through supervised practice supported by guided theoretical learning. CLE is the best mechanism to learn skills particularly in the context of the explosion in knowledge and technology.

IBA-CLE Chair

For the first time in the history of legal education, the National Law School of India University, Bangalore, has established a Chair on Continuing Legal Education with support from the International Bar Association, the Ford Foundation and the Menon Institute of Legal Advocacy Training. A series of CLE programmes for lawyers and law teachers have been announced to help professional development and to enable law schools to set up CLE centres for institutionalising CLE at all levels of the system. While judges have their training academies in every State, the legal profession ended up with no provision for continuing education without which it is in danger of losing its competence to serve the complex demands of a developing society. This is what the Bangalore initiative on CLE is addressing though in a small way for the legal profession in India. Hopefully, in the next two or three years, a network of CLE institutions will come up around the country which will pave the way for enhancing the professional competence of advocates and thereby the quality of legal services in the country.

(Professor Menon was the Founder Director of the National Law Schools at Bangalore and Kolkata, and of the National Judicial Academy at Bhopal.)

Continuing onslaught on the CAG

CAG

RAMASWAMI S IYER IN THE HINDU

The work of India’s supreme auditor cannot be put through an audit unless the institution itself initiates one

The relentless campaign against the Comptroller and Auditor-General, of an unprecedented ferocity, compels me to write again on the subject.

First, has the CAG caused a political and constitutional crisis, as some have argued? All that the CAG does is to submit audit reports. Any audit report, if it is a good report, is bound to contain elements that can be used for a criticism of the government. Using the report to stall Parliament was a clear, declared political decision of the Opposition. To say that the CAG shares the responsibility for this amounts to saying that the CAG should not have submitted a report at all, or should have submitted a totally bland report from which no party can pick up any point for criticising the government.

G. Mohan Gopal, a highly respected legal expert, makes two main points (The Indian Express, 10 September 2012): the fallibility of the CAG, and giving illegal advice to the government.

Fallibility

The fallibility of the CAG is a truism; no one ever denied it. There are two important procedural safeguards against errors in the audit reports. In drafting paragraphs for inclusion in the audit report, substantiation has to be provided for every remark through ‘key documents’. This is a stringent requirement. After such internal procedures, when the first draft of the audit report is ready, it is sent for comments to the Ministry or organisation under audit, and is revised in the light of comments received. If I am not wrong, this process is repeated more than once. At every stage, the executive can draw attention to errors of fact or understanding or law, if any, in the report. In fact, apart from corrections or revisions being made in response to comments, the initial objections themselves are dropped in many cases in the light of explanations by the executive. Not every comment initially formulated finds its way into the final audit report. The fallibility of the CAG is a red herring.

Turning to the charge of ‘illegal advice’, the CAG did not give any legal advice on his own on the choice between administrative instructions and amendment of the Act; he was only citing an advice of the Law Ministry of 2006. It might be Mr. Gopal’s view that the advice was wrong, but I doubt if the Law Ministry would accept that view. The CAG’s point was that in July 2006, on the basis of the Law Ministry’s clear advice at that stage, competitive bidding could have been adopted through administrative instructions. Anyway, that is only a hypothetical point; the final decision was to amend the Act. The CAG did not question that decision. He merely pointed out that the time it took to arrive at that decision (for whatever reasons) meant the continuance of the procedure of selections by a Screening Committee. Further, he did not even criticise that procedure per se, but only the absence of openness, transparency and fairness in that procedure, and the difficulty of determining the basis for the selection of parties. What remains of the illegality charge?

Mr. Gopal makes another point, namely, that mining licences could be granted only by the State governments, and that the Screening Committee was just that, namely, a Screening Committee, and that it was making no allocations of coal blocks. I am sure the CAG will have something to say on this, but as a layman let me ask Mr. Gopal a few simple or simplistic questions. Why was there a Screening Committee at all? What was it screening for? If it was not making allocations of coal blocks, what exactly was it doing? If there was no such thing as ‘allocation of coal blocks’, why did no one say so when the draft audit report was under discussion between the Ministry and the CAG? Did the Ministry question the term ‘allocation of coal blocks’ at any time?

On all these matters, did it not occur to Mr. Gopal that he should take the precaution of checking with the Ministry and the CAG before publishing his rash remarks?

Tendentious

Mr. Gopal castigates the CAG for calculating “losses arising from obeying the law”. That is a highly tendentious statement. First, what the CAG is talking about is not ‘losses’ to the government, but windfall gains to the recipients of the allocations. Secondly, it is preposterous to say that the CAG is calculating ‘windfall gains’ as arising from the government following a legal course. His point is that the allocation of coal blocks confers windfall gains on the recipient parties, and so the process of selection of parties should be fair, objective and transparent. This would apply, whatever the route followed for the selection of parties.

As for Kapil Sibal’s criticism of the CAG for making policy (The Times of India, September 15, 2012), the answer is threefold. First, the CAG does not make policy prescriptions. He draws inferences from his audit findings and makes some consequential recommendations for the government’s consideration. It is for the government to consider and accept or reject them. Secondly, the CAG picks up policy decisions or recommendations from the files and tries to find out whether they were acted upon promptly or at all. Thirdly, where there is no recorded and reasoned policy decision behind the executive action, the CAG examines the rationale of the action. If there is a clear record of the reasoned adoption of a policy, the CAG does not and cannot question it.

Mr. Sibal also says that maximising revenues might not always be the government’s objective. True, but this should be a recorded ex ante decision, not an ex post facto rationalisation.

Again, the allocation of coal blocks is of course an executive decision, but would Mr. Sibal argue that the arbitrary and discretionary allocations of scarce natural resources are an executive prerogative that the CAG cannot question?

Disingenuous argument

Finally, there is the disingenuous argument that the executive is accountable whereas the CAG is not. The executive is of course accountable to Parliament and the people — through the CAG — though every attempt is made to evade it and obfuscate issues, as in the present case. As for the CAG, the argument is presumably that he should be accountable to the people for the quality of his audit. He is our supreme audit institution, and we cannot ask another auditor to second-guess his audit.

Besides, apart from the Ministries and other government organisations and public enterprises, even IITs, IIMs, private companies, etc, can come within the scope of his audit if they receive funds or allocations of natural resources from the state; and the CAG nominates private sector auditors for the audit of public enterprises and test-checks their audit. Which of these agencies or organisations can be asked to undertake an audit of the CAG’s work? In any case, such an imposition on the CAG would be unconstitutional.

All this agonising is unnecessary because the CAG is not exempt from criticism. (That is perhaps the understatement of the year, considering the campaign that is going on.) As already mentioned, the executive has plenty of opportunity to challenge every statement in the audit report at every stage, including the stage of examination by the PAC. Secondly, there is a discussion of all this in the media, and many commentators analyse the audit reports. Is this not a form of accountability?

If there is to be a peer review of the work of the institution of the CAG, it has to be initiated by the CAG himself. The CAG has in fact done so. He constituted an international panel consisting of representatives of the SAIs of several countries to conduct a review of his organisation’s work, and the panel is understood to have submitted its report.

In conclusion, it is sad that persons of such eminence should attack a constitutional functionary either on the basis of inadequate understanding or with the deliberate intention of obfuscating issues.

(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)

SH Kapadia: Pilgrim of Justice

CHIEF JUSTICE OF INDIA SH KAPADIA

BY DINESH NARYAN-  PUBLISHED IN FORBES INDIA

Sarosh Homi Kapadia
Age: 64
Profile: Chief Justice of India. In his long legal career, he has served as a lawyer at Bombay Bar, a Bombay High Court Judge, a Special Court Judge, Uttaranchal Chief Justice, Judge Supreme Court
His Achievement

• He is one of the finest judges and administrators
• He has redefined judgeship

A judge, by virtue of his chosen profession, chooses to become an ascetic, distant from the society he lives in, yet immersed in it so deep that he is confronted with the rawness of its existential struggle every day. Chief Justice of India SH Kapadia is a person who understands it too well.

“A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions,’’ Kapadia said while delivering the MC Setalvad Memorial lecture on Judicial ethics in April 2011.

Since taking over as the Chief Justice on May 12, 2010, Kapadia has worked tirelessly to restore the diminishing dignity and credibility of the Supreme Court as the final forum for justice seekers. With a single stroke of the pen, he stopped reckless mining in Bellary. He disqualified the crucial appointment of Central Vigilance Commissioner  (CVC) reminding the prime minister and his government that processes must stand the test of integrity. In the Vodafone case, Kapadia pointed out that laws are not open to unduly liberal interpretations. A corporate lawyer said that the Vodafone judgement reinforced to the world the independence of the country’s judiciary. In a few days a Constitution Bench headed by Kapadia will decide on the Presidential Reference made to it after the SC quashed 122 telecom licences and asked the government to conduct auctions to allocate natural resources. He is also expected to frame guidelines for the media on reporting on matters that are being heard in court.

Chief Justice Kapadia will be remembered for some of the landmark judgements he delivered. And the way he lived as a judge will never be forgotten. It can only be called exemplary. In a now famous and widely quoted letter that he wrote to former Justice VR Krishna Iyer, Kapadia said: “I come from a poor family. I started my career as a class IV employee and the only asset I possess is integrity…’’

Early days
The destiny of Sarosh Homi Kapadia was uncertain when he was born on September 29, 1947 in a nation that came into existence barely six weeks before him. Not many people in the world who watched the birth of India gave it a chance as a democracy. The odds were stacked against Kapadia at birth because unlike the illustrious Parsis of Bombay, his father had grown up in a Surat orphanage and had worked as a lowly defense clerk. His mother Katy was a homemaker. The family could barely make ends meet but that did not weaken their robust values.

“My father taught me not to accept obligations from anyone, and my mother taught me the ethical morality of life,’’ Kapadia recalled at a Bombay Parsi Panchayet felicitation when he became CJI. Young Sarosh, however, had decided that he would make his own destiny. He wanted to become a judge and nothing else.

At the felicitation, Panchayet trustee Khojeste Mistree talked about his student days. Kapadia would walk down Narayan Dhabolkar Road in Mumbai, past the Rocky Hill flats, where a number of judges lived, and dream that one day he would progress from being an advocate to becoming a judge and have the honour of living in those very same salubrious surroundings, Parsi Khabar, an online community web site, reported Mistree as saying. Many years later, when Kapadia became a judge at the Bombay High Court, he always sat in court room number three on the ground floor, which perplexed many because as judges rose in seniority they also moved up the courthouse building. Kapadia revealed the reason why he was fond of the room when he was invited to tea at the Bar just before taking over as the Chief Justice of the Uttaranchal High Court in 2003. Early in his career as a low-grade employee, he used to end up at the Fountain area near the court for work. He didn’t have anywhere to go to spend his lunch break. For three years lunch often used to be a small cone of roasted chana (gram) and courtroom number three was the place to relax because it let in good breeze. A lawyer in Mumbai who was present says that Kapadia recalled how his interest in law was fuelled by the sessions in that courtroom.

Kapadia began his career as a grade four employee with Behramjee Jeejeebhoy where his main job was to deliver case briefs to lawyers. Behramjee Jeejeebhoy was the owner of seven villages in Bombay and had a lot of land revenue as well as a number of land-related disputes to settle. Those cases were handled by Gagrat and Company where a young lawyer, Ratnakar D Sulakhe, used to work.

“Sarosh used to come very regularly to our offices. That is how I first met him. He had a keen interest in law and I encouraged him to take it up,’’ remembers Sulakhe, who is now legal consultant with the Godrej group. Kapadia studied law and enrolled at the bar. By that time he had a keen grasp of issues related to land and revenue and began taking up such cases. As a junior lawyer, he quickly gained a reputation for his preparation and ability to cite authority while arguing. Kapadia then joined Feroze Damania, a feisty labour lawyer reputed to be partial to poor and marginalised people.

In 1982, Kapadia argued a case for people living in Ghatkopar, a suburb in Mumbai. The area was formerly salt pans and fell under the control of the Salt Commissioner. The commissioner had ordered summary eviction of about 3,000 tenements. Kapadia fought the case which resulted in a landmark judgement laying down the principle that governments cannot invoke summary eviction laws to throw out people when there is a genuine dispute on the title. “It was not about money. He was genuinely interested in the welfare of marginalised people,’’ a colleague who worked with him at Damania’s offices told Forbes India. He did not wish to be named.

The colleague says, at the time Kapadia became interested in Buddhist and Hindu philosophies, especially in the teachings of Ramana Maharishi, Swami Vivekananda and Ramakrishna Paramahansa. Later he became a frequent visitor to Belur Math on the banks of the Hoogly in Kolkata. A monk at the Math says he learnt meditation techniques. He has read everything about Ramakrishna and also what Swami Vivekananda wrote. Kapadia’s worldview is highly influenced by Indian thinkers but is also tempered by the observed realities of the modern world. It has also shaped his thinking as a judge who believes in continuous learning.

“What we need today in India as far as the judges are concerned is a scholastic living,” Kapadia said in December 2008. Delivering the JK Mathur memorial lecture in Lucknow, Kapadia went on to define the context of modern day justice and the legal profession. In that speech he said how important it was for judges to understand the various concepts in different fields, including economics and accountancy. Kapadia himself is a qualified accountant and has vast knowledge of economics. That came in handy in a case where Orissa’s tribals were pitted against a miner.

There were no jobs, hospitals or schools in the area the company wanted to mine. Kapadia analysed the accounts of the company to find out whether it could set aside a portion of profits for tribals’ welfare. He dissected the accounts segment-wise to discover a profit of about Rs 500 crore when without the standard of accounting the profit would be only Rs 15 crore.

“A judge sitting in tax matters knows the accounting standards. It helps us to decide matters in the context of socio-economic justice enshrined in the Constitution… This is where I emphasise the knowledge of the basic concepts.’’

A Mumbai lawyer who knows him from the time Kapadia was a lawyer and later judge, says that he has evolved into a complete jurist. Yet, the Chief Justice has not stopped learning.

In July 2011, the Supreme Court gave a verdict in a case involving limestone mining in Meghalaya’s East Khasi Hills by Franco-Spanish cement company Lafarge Umiam Mining. Almost a year-and-a-half before that, the company had been asked to stop mining by a Bench headed by Justice KG Balakrishnan. When the hearing resumed, Justice Balakrishnan had retired and Kapadia was presiding on the three-judge bench.

As Harish Salve began to argue for Lafarge, Kapadia realised that he did not know enough background. So he asked the senior lawyer to brief the court on the history of environmental jurisprudence. A stumped Salve said that would be like reading a textbook. To which Kapadia replied that he was a Bombay man who understood very little about environmental matters and would Salve not help the court? Every Friday for the next seven weeks the cavernous courtroom turned into a classroom where Salve elaborated on the evolution of environmental jurisprudence in India.

Unshakeable Integrity
There are two qualities of Justice Kapadia that no one disputes— integrity and compassion.

“His humble beginnings are reflected in his outlook and judgements,’’ says senior lawyer Soli Sorabjee. “A litigant may feel disappointed if he loses the case but no litigant goes back [from Kapadia’s court] feeling he was not fairly or fully heard.’’

In his pursuit of flawless integrity, Kapadia has hermetically sealed himself. He even said in a speech that judges and lawyers should work like a horse and live like a hermit. When Forbes India sought to interview him for this profile, the CJ’s office said the strict code of conduct binding Supreme Court judges does not allow him to agree. Kapadia’s personal code of conduct is more severe. Retired Justice VR Krishna Iyer told Forbes India that he had gathered from his colleagues that he was too dignified to even meet other judges, rarely meets anybody at random and when he speaks he is taciturn.

Kapadia does not accept even official invitations if they fall on a working day. He once rejected an invitation to represent India at a conference of the Commonwealth Law Association in Hyderabad because it fell on a working day. On the first day in office as CJI, he cleared 39 matters in half an hour. Kapadia has practically dedicated his life to the profession, rarely taking holidays even.

During the first summer holidays after he became chief justice, Kapadia is said to have come to office everyday to streamline the SC registry.

According to several lawyers, the registry had deteriorated into a corrupt office where ‘bench hunting’ was common. Bench hunting is gaming the allocation process to make sure that a certain matter appears before a certain judge who the lawyer thinks will rule in a particular way. Kapadia has put an end to it and is now said to review the day’s board of case listings and pull up the SC staff if he finds something amiss. The CJ has also stopped out-of-turn mentioning of cases to be taken up urgently, which has caused some consternation among lawyers. Earlier, lawyers could request the judge while the court was in session to take up an unlisted matter because it was urgent. Now they have to file an urgency petition a day in advance. The system exists because there is a mountain of pending cases in the judicial system. And since the SC is the final authority, it gets overburdened. “It will not be long before we have a 100 judges in the SC,’’ says a lawyer. The SC currently has 30 judges, excluding the CJI. The Indian justice system had drawn a lot of flak over the past few years after the integrity of several past and sitting judges was questioned. But Kapadia defended the system in his Law Day speech last November.

“I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system,’’ he said. He also said that the backlog of cases is not as huge as is made out to be. “Seventy-four percent of the cases are less than five years old,’’ he said and added that the focus is on quickly disposing of the rest of the cases.

Kapadia has certainly restored the confidence and pride in the Supreme Court of India.

“He will certainly be remembered for the landmark Vodafone decision,’’ says Percy Billimoria, senior partner at corporate law firm AZB and Partners.  “Whenever anyone complains about the retrospective amendment of the tax law on this issue, I always retort by reminding them that the fact that the decision held that the government’s stand on a matter with such far reaching revenue implications was contrary to the law at the time shows that at least our judiciary is fair and independent.’’

By the time Kapadia hangs up his cloak and collar on September 29, he would have left an indelible mark on India’s judicial history. Former Justice VR Krishna Iyer told Forbes India: “While I have seen during the last 97 years of my life among good judges with great credentials, there was hardly anyone to compare with Kapadia the like of which no eye had seen, no heart conceived and no human tongue can adequately tell.’’

http://forbesindia.com/article/independence-day-special/sh-kapadia-pilgrim-of-justice/33592/0#ixzz24DsdyUtX

Judicial appointments & disappointments

JUSTICE V K KRISHNA IYER IN THE HINDU

A commission to select judges will be an improvement on the collegium only if its members are of the highest standing

The Constitution of India operates in happy harmony with the instrumentalities of the executive and the legislature. But to be truly great, the judiciary exercising democratic power must enjoy independence of a high order. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability: without these, the robes may prove arrogant.

It is in this context that Chief Justice S.H. Kapadia’s observations, at an event at the Supreme Court of India on Independence Day, underlining the need for the government to balance judicial accountability with judicial independence, have to be reconciled with what Law Minister Salman Khurshid observed about judicial propriety. It is this reconciliation of the trinity of instrumentality in their functionalism that does justice to the Constitution. A great and grand chapter on judicial sublime behaviour to forbid the “robes” becoming unruly or rude and to remain ever sober is obligatory.

The Constitution has three instrumentalities — executive, legislative and judicative. The implementation of the state’s laws and policies is the responsibility of the executive. The Cabinet headed by the Prime Minister at the Centre and the Cabinet led by the Chief Minister in the States, are its principal agencies. The rule of law governs the administration.

Parliament consisting of two Houses and legislatures at the State level make law. When the executive and the legislature do anything that is arbitrary, or contrary to the constitutional provisions, the judiciary has the power to correct them by issuing directions under Article 143. The Constitution lays down the fundamental rights, and if the States do not safeguard them, any citizen can approach the Supreme Court for the issue of a writ to defend his or her fundamental rights.

Thus, among the three instrumentalities, the judiciary has pre-eminence. But the judiciary itself has to act according to the Constitution and work within the framework of the Constitution.

Felix Frankfurter pointed out thus: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

Ultimate authority

Judges are the ultimate authority in the interpretation of the Constitution, and so must be learned in the law and in the cultural wealth of the world. They play a vital role in the working of the Constitution and the laws. But how judges are appointed is a matter of concern. Simply put, the President appoints them, but in this the President only carries out the Cabinet’s decisions.

The Preamble to the Constitution lays down as the fundamentals of the paramount law that India shall be a socialist, secular democratic republic which shall enforce justice — social, economic and political — and ensure liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and promote among them fraternity, ensuring the individual’s dignity and the nation’s unity and integrity.

Need for clarity

But who will select the judges, and ascertain their qualifications and class character? Unless there is a clear statement of the principles of selection, the required character and conduct of judges in a democracy may fail since they will often belong to a class of the proprietariat, and the proletariat will have no voice in the governance: the proprietariat will remain the ruling class.

Winston Churchill made this position clear with respect to Britain thus: “The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased.”

We in India have under the Constitution the same weaknesses pointed out by Churchill, with the result that socialism and social justice remain a promise on paper. Then came a new creation called collegiums. The concept was brought in by a narrow majority of one in a 5-4 decision of the Supreme Court for the selection of judges. It was binding on the executive, the decisions of which in turn were bound to be implemented by the President.

Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.

In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.

In these circumstances, the Union Law Minister has stated that the government proposes to change the collegium system and substitute it with a commission. But, how should the commission be constituted? To whom will it be answerable? What are the guiding principles to be followed by the Commission? These issues remain to be publicly discussed. A constitutional amendment, with a special chapter of the judiciary, is needed. Such an amendment can come about only through parliamentary action.

Surely a commission to select judges for the Supreme Court has to be of high standing. It must be of the highest order, of a status equal to that of the Prime Minister or a Supreme Court judge. The commission’s chairman should be the Chief Justice of India.

In the process of selection, an investigation into the character, class bias, communal leanings and any other imputations that members of the public may make, may have to be investigated. This has to be done not by the police, which function under the government, but by an independent secret investigation agency functioning under the commission’s control. These and other views expressed by outstanding critics may have to be considered.

The commission has to be totally independent and its ideology should be broadly in accord with the values of the Constitution. It should naturally uphold the sovereignty of the Constitution beyond pressures from political parties and powerful corporations, and be prepared to act without fear or favour, affection or ill-will. It should act independently — such should be its composition and operation. The commission should be immune to legal proceedings, civil and criminal. It should be removed only by a high tribunal consisting of the Chief Justice of India and the Chief Justice of all the High Courts sitting together and deciding on any charges publicly made. We, the people of India, should have a free expression in the commission’s process.

(V.R. Krishna Iyer, eminent jurist, is a former Judge of the Supreme Court of India)

Related articles

• Judicial appointments & disappointments (thehindu.com)
• Accountability, independence can coexist, Centre tells CJI (thehindu.com)
• Lessons in judicial restraint (indialawyers.wordpress.com)
• SC slowly taking over Parliament: Katju (ibnlive.in.com)
• Disturbing trends in judicial activism (indialawyers.wordpress.com)
• Judicial freedom won’t be undermined by proposed law: Khurshid (thehindu.com)

Poor accused must get free legal aid at all levels: SC

Supreme Court of India

Rajoo @ Ramakant vs State Of M.P. (Supreme Court- 09.08.2012 )

NEW DELHI: The Supreme Court has ruled that free assistance must be provided to all poor accused, irrespective of the severity of the crime attributed to them, at every stage of the three-tier justice delivery system and could not be restricted to the trial stage only.

“We are of the opinion that neither the Constitution not the Legal Services Authority Act makes any distinction between a trial and an appeal for the purpose of providing free legal aid to an accused or person in custody,” a bench of Justices A K Patnaik and Madan Lokur said. The bench ordered fresh hearing of appeal of one Rajoo, whose conviction in a gang rape case was upheld by the Madhya Pradesh High Court even though there was no legal assistance provided to the accused in the appeal stage. He had got free legal aid during the trial proceedings. Justice Lokur, writing the judgment for the bench, said when the Supreme Court Legal Services Committee provided assistance to eligible persons in the apex court, how could there be a bar on providing free legal aid to accused in the high courts. “It is important to note that Section 12 and 13 of the Legal Services Authorities Act do not make any distinction between the trial stage and the appellate stage for providing legal services. In other words, an eligible person is entitled to legal services at any stage of the proceedings which he or she is prosecuting or defending,” the bench said.

It disagreed with earlier judgments which hinted at carving out exceptions for providing free legal assistance to accused facing trial in economic offences or offences against law prohibiting prostitution or child abuse. “We have some reservation whether such exceptions can be carved out particularly keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty,” the bench said.

“If such exceptions are accepted, there may be a tendency to add some more, such as in cases of terrorism, thereby diluting the constitutional mandate and fundamental right guaranteed under Article 21 of the Constitution,” it said. The bench said it was obligatory for every court, from trial court to the Supreme Court, to inquire whether the accused or convict required legal representation at the government’s expense so as not to deprive the person a “fair trial or hearing”.

The Court in its Judgement discussed  the scheme of institutional machinery , various court orders and the legislation enacted for   legal aid in the country. The Judgement content is as follows:

Constitutional and statutory provisions :

By the 42nd Amendment to the Constitution, effected in 1977, Article 39-A was inserted. This Article provides for free legal aid by suitable legislation or schemes or in any other manner, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Article 39-A of the Constitution reads as follows:- 39A. Equal justice and free legal aid. – The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Subsequently, with the intention of providing free legal aid, the Central Government resolved (on 26th September, 1980) and appointed the “Committee for Implementing the Legal Aid Schemes”. This committee was to monitor and implement legal aid programs on a uniform basis throughout the country in fulfillment of the constitutional mandate. Experience gained from a review of the working of the committee eventually led to the enactment of the Legal Services Authorities Act, 1987 (for short, the Act).

The Act provides, inter alia for the constitution of a National Legal Services Authority, a Supreme Court Legal Services Committee, State Legal Services Authorities as well as Taluk Legal Services Committees. Section 12 of the Act lays down the criteria for providing legal services. It provides, inter alia, that every person who has to file or defend a case shall be entitled to legal services, if he or she is in custody. Section 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will be entitled to legal services provided the concerned authority is satisfied that such person has a prima facie case to prosecute or defend.

It is important to note in this context that Sections 12 and 13 of the Act do not make any distinction between the trial stage and the appellate stage for providing legal services. In other words, an eligible person is entitled to legal services at any stage of the proceedings which he or she is prosecuting or defending. In fact the Supreme Court Legal Services Committee provides legal assistance to eligible persons in this Court. This makes it abundantly clear that legal services shall be provided to an eligible person at all stages of the proceedings, trial as well as appellate. It is also important to note that in view of the constitutional mandate of Article 39-A, legal services or legal aid is provided to an eligible person free of cost.

Decisions of this Court :

Pending the enactment of the Legal Services Authorities Act, the issue of providing free legal services or free legal aid or free legal representation (all terms being understood as synonymous) came up for consideration before this Court.

Among the first few decisions in this regard is Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98. In that case, reference was made to Article 39-A of the Constitution and it was held that free legal service is an inalienable element of “reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 [of the Constitution].” It was noted that this is “a constitutional right of every accused person who is unable to engage a lawyer and secure free legal services on account of reasons such as poverty, indigence or incommunicado situation.” It was held that the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, subject of course to the accused person not objecting to the providing of a lawyer.

The essence of this decision was followed in Khatri (II) v. State of Bihar, (1981) 1 SCC 627. In that case, it was noted that the Judicial Magistrate did not provide legal representation to the accused persons because they did not ask for it. This was found to be unacceptable. This Court went further and held that it was the obligation of the Judicial Magistrate before whom the accused were produced to inform them of their entitlement to legal representation at State cost. In this context, it was observed that the right to free legal services would be illusory unless the Magistrate or the Sessions Judge before whom the accused is produced informs him of this right. It would also make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services thereby rendering the constitutional mandate a mere paper promise.

Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 reiterated the requirement of providing free and adequate legal representation to an indigent person and a person accused of an offence. In that case, it was reiterated that an accused need not ask for legal assistance – the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid. This Court observed that it was now “settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 [of the Constitution].”

Since the requirements of law were not met in that case, and in the absence of the accused person being provided with legal representation at State cost, it was held that there was a violation of the fundamental right of the accused under Article 21 of the Constitution. The trial was held to be vitiated on account of a fatal constitutional infirmity and the conviction and sentence were set aside.

We propose to briefly digress and advert to certain observations made, both in Khatri (II) and Suk Das. In both cases, this Court carved out some exceptions in respect of grant of free legal aid to an accused person. It was observed that there “may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.” We have some reservations whether such exceptions can be carved out particularly keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty. If such exceptions are accepted, there may be a tendency to add some more, such as in cases of terrorism thereby diluting the constitutional mandate and the fundamental right guaranteed under Article 21 of the Constitution. However, we need not say anything more on this subject since the issue is not before us. The above discussion conclusively shows that this Court has taken a rather pro-active role in the matter of providing free legal assistance to persons accused of an offence or convicted of an offence. Another view:

A slightly different issue had recently arisen in Clark v. Registrar of the Manukau District Court, (2012) NZCA 193. The issue before the Court of Appeal in New Zealand was whether legally aided defendants in criminal proceedings are entitled to choose or prefer the counsel assigned to represent them. The discussion in that case centered round the New Zealand Bill of Rights Act, 1990 and the issue was answered in the negative. However, in the course of discussion, the Court observed that the right of a fair trial is guaranteed by the Bill of Rights Act and it is an absolute right. A fundamental feature of a fair

trial is a right to legal representation under the Bill of Rights Act. Reference was made to the decision of the Supreme Court of New Zealand in Condon v. R, (2006) NZSC 62 wherein it was concluded that representation by a lawyer is nearly always necessary for a trial for a serious offence to be fair. An accused person must have legal representation or at least should have been afforded a reasonable opportunity of attaining it when charged with a serious offence. But, the Supreme Court held that: “An accused has the right to employ a lawyer, but the state does not guarantee to provide the lawyer’s services – in this respect its role is passive, in the sense that it must not impede the exercise of the right by the accused. The exception is under s 24(f) [of the Bill of Rights Act], when the accused does not have sufficient means to provide for legal assistance. Even in such a case, however, it is the accused who must take the necessary steps to obtain assistance under the Legal Services Act.”

It was noted that the Supreme Court agreed with the High Court of Australia in Dietrich v. R, 1992 HCA 57 that, other than in exceptional circumstances, “an accused who conducts his or her own defence to a serious charge, without having declined or failed to exercise the right to legal representation, would not have had a fair trial.” A conviction obtained in such circumstances would be quashed unless the prosecution is able to satisfy the appellate Court that the trial was actually fair.

That there is a right of legal representation available to an accused is undoubted, even in New Zealand and Australia. The only point of disagreement appearing from Condon, as far as we are concerned, is whether the accused should be asked whether he or she requires legal assistance or not. The Supreme Court in New Zealand appears to have taken the view that the role of the State (and indeed of the Court) in this regard is passive. The view taken by this Court on issues of legal representation, on the other hand, is pro-active and an obligation is cast on the Court to enquire of the accused or convict whether he or she requires legal representation at State expense.

Conclusion:

Under the circumstances, we are of the opinion that neither the Constitution nor the Legal Services Authorities Act makes any distinction between a trial and an appeal for the purposes of providing free legal aid to an accused or a person in custody. We are also of the view that the High Court was under an obligation to enquire from Rajoo whether he required legal assistance and if he did, it should have been provided to him at State expense. However, since the record of the case does not indicate any such endeavour having been made by the High Court, this case ought to be re- heard by the High Court after providing Rajoo an opportunity of obtaining legal representation.

Disturbing trends in judicial activism

JUDICIALREVIEW

T R ANDHYARUJINA IN THE HINDU

Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters

Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.

It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.

For basic rights

PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights.

In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed.

In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it originated. He emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.”

No longer were the Court’s clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.

This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it.

The new intervention

However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.

In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.

In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.

The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.

Military operation

The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”

Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.

Other examples

Matters of policy of government are subject to the Court’s scrutiny. Distribution of food-grains to persons below poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.

The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.

Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.

(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged version of a lecture he recently delivered at the sesquicentennial of the Bombay High Court.)

Experts discuss ways to curb human trafficking- Judicial Colloquium held in Chandigarh

PUBLISHED IN INDIAN EXPRESS

A Colloquium on human trafficking was organised on Sunday by the state legal services authorities of Punjab, Haryana and UT Chandigarh, in collaboration with the governments of Punjab and Haryana. The event was held at the Chandigarh Judicial Academy and was sponsored by the Union Ministry of Home Affairs.

Eminent speakers and chief guest, Jasbir Singh, Acting Chief Justice of the Punjab and Haryana High Court, discussed concerns related to human trafficking and the possible ways to curb it. Speaking on the occasion, P M Nair, special Director General of CRPF, explained the dimensions, challenges and existing responses on human trafficking. He presented a documentary made by the United Nations, with him as the project head, featuring real life cases of children who were traded for money and appeals made by Bollywood actors like Amitabh Bachchan, John Abraham and Preity Zinta to stop human trafficking.

Shanta Sinha, Chairperson of the National Commission for Protection of Child Rights (NCPCR) and Ravi Kant, President of Sakti Vahini, a Non Governmental Organisation, emphasized that the present legal framework against human trafficking has loopholes and more stringent laws need to be developed. Sinha said that about 80 percent of the present child labour force is employed in the agricultural sector as only 65 procedures are prohibited by the Child Labour Act in India. This leads to more trafficking of children for agricultural sector and work at home based units. Ravi Kant applauded the recent order passed by the Punjab and Haryana High Court to register FIRs for all missing children.

U Sarathchandran, member, Secretary of National Legal Services Authority, New Delhi, elucidated the role of the judiciary along with cases of human trafficking from Bihar and Madhya Pradesh, which were caught and duly handled by the judicial authorities. Justice Roshan Dalvi of Mumbai High Court and Swati Chauhan, Judge at the Family Court, Mumbai, threw light on the legal provisions against trafficking and protection of victims alongwith the prosecution of traffickers.

In his address, Acting Chief Justice of the Punjab and Haryana High court, Jasbir Singh, said, “It is shameful that human beings are treated as commodities today. It’s a gross disruption in moral values and righteousness”. He added that in this regard there is a need to follow the principle of four Ps- prohibition, prevention, prosecution and partnership.

The colloquium was attended by a gathering of more than 500 jurists and other members of the judicial fraternity.