The judgment in Kesavananda Bharati v State of Kerala, whose 40th anniversary falls today, was crucial in upholding the supremacy of the Constitution and preventing authoritarian rule by a single party
Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!
All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?
The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.
Supreme Court v Indira Gandhi
It is supremely ironical that the basic structure theory was first introduced by Justice Mudholkar eight years earlier by referring to a 1963 decision of the Supreme Court of Pakistan. Chief Justice Cornelius — yes, Pakistan had a Christian Chief Justice and, later, a Hindu justice as well — had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.
The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalise banks and other industries. A year later, in 1970, Mrs Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile rulers. This was also struck down by the Supreme Court. Ironically, the abolition of the Privy Purses was challenged by the late Madhavrao Scindia, who later joined the Congress Party.
Smarting under three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right.
These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and several coal, sugar and running companies. On the other side, was not only the Union of India but almost all the States which had also intervened. This case had serious political overtones with several heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who appeared for the State of Kerala and the Union of India respectively.
The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible damage to the reputation of Chief Justice A.N. Ray.
Constitutional rights saved
If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. At any rate, the Constitution would have lost its supremacy. Even Seervai later admitted that the basic structure theory preserved Indian democracy. One has to only examine the amendments that were made during the Emergency. The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life. If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.
Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy. The souls of Nehru, Patel, Ambedkar and all the founding fathers of our Constitution can really rest in peace.
(Arvind P. Datar is a senior advocate of the Madras High Court.)
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.”
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)
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NEW DELHI: The Supreme Court may have declared in numerous judgments that speedy trial was intrinsic to right to life of an accused, but on Wednesday the court said it was apprehensive about fixing a time limit for completion of a criminal trial as it could be misused by intelligent criminals.
This comment came from a bench of Justices H L Dattu and C K Prasad during the hearing on a petition by advocate Ranjan Dwivedi, who has sought quashing of the trial proceedings against him in the L N Mishra murder case on the ground of inordinate delay saying the 37-year-long trial has blighted him personally, physically and socially.
Senior advocate T R Andhyarujina said Dwivedi was 27-year-old when the bomb blast at Samastipur railway station killed Mishra on January 2, 1975. The trial has dragged on for no fault of his, and now the accused is a frail 64-year-old. He said there was a grave danger of immense prejudice during the trial of Dwivedi as 31 of 39 defence witnesses cited by him to prove his innocence have died. As many as 22 judges have handled the trial at various stages.
“It is a unique case. The apex court has declared that right to speedy trial was a requirement under Article 21 guaranteeing right to life. But, the trial has dragged on for 37 years. In 1992, the Supreme Court had directed day-to-day trial in this case for a speedy conclusion. Two decades later, we are no where near the end,” Andhyarujina said.
“Whether the accused would get convicted or acquitted is immaterial. The question important here is whether any judicial system would tolerate such inordinate delay? Should the Supreme Court allow it to continue any more,” he added.
The bench said there was no denying that delay had been frequent in the judicial system in India. “Delay will continue to happen given the system we have. Delay definitely affects the trial but can the Supreme Court fix a time limit for completion of a criminal trial. The SC had earlier in a judgment specifically struck down fixation of a time limit for completion of trial,” it said.
“It is a unique case. But if we quash the proceedings, we may be sending a wrong signal, which may be used by an intelligent accused at a later date. We do not want this to happen because of our order,” the bench said.
The court was apprehensive that if a time limit was fixed on the trial, then an unscrupulous accused could deliberately delay the trial by challenging every order against him in higher courts and thus designed delay the trial to seek its quashing after a decade or so.
The bench said since the trial has reached the fag end after dragging for nearly four decades, it could ask the trial court to complete it in the next three months by holding proceedings on a day-to-day basis refusing adjournment on any ground to the accused and prosecution. It asked Andhyarujina and additional solicitor general Harin Raval to give their views to expeditious completion of the 37-year-long trial by Thursday.
Role of Ananda Marg was suspected in the case, and several people were arrested. The chargesheet was filed against several people, including Dwivedi. The trial was transferred to Delhi by the Supreme Court in December, 1979, after the attorney general alleged that Bihar government was interfering with the trial. Charges were framed against the accused in 1981. Dwivedi was granted bail in 1978.
SATVIK VERMA IN THE ECONOMIC TIMES
A few weeks ago, the Supreme Court of India delivered three landmark judgments. Starting with its verdict on Vodafone, a few days later, the court delivered a ruling that a complaint under the Prevention of Corruption Act is a citizen’s constitutional right and the competent authority must take a decision within three months on whether or not to grant sanction for prosecution. Two days later, the court held the allocation of 2G licences as arbitrary and illegal and, consequently, cancelled all 122 licences granted. Say what one may, but all these judgments reinstate the supremacy of the rule of law and affirm one’s belief in the independent and effective functioning of the Indian judiciary. Given that in all these judgments the government is a contesting party and since the ramifications of these verdicts are far beyond the cases in which they were delivered, the government is now looking to seek a judicial review in all these matters.
Before we assume that by filing a review, the government is questioning judicial authority or jump to conclusions that some of the certainty these judgments had delivered may get undone, let us examine the legal framework regarding seeking review of judgments of the court. The Constitution provides that the court has the power to review any judgment made by it. It further provides that the court may make any rules for regulating its practice and procedure or set down conditions, subject to which a judgment passed by it may be reviewed.
Additionally, the Supreme Court rules stipulate that an application for review must be filed by way of a petition within a period of 30 days from the original judgment and is normally heard in chambers, by the same Bench that heard the original case. It is expected that such petition will clearly set out the grounds on which the review is sought and such grounds must be in keeping with the requirements prescribed in the Code of Civil Procedure.
Notably, the code provides very limited grounds either on account of discovery of new/important evidence that was not available at the time when the dispute was originally heard or on account of some mistake or ‘error apparent’ on the face of the record. Applying the above stated principles, the court has held that the power of review is to be exercised with extreme care, caution and circumspection. Additionally, a review should be entertained only in very exceptional cases where the court has overlooked a material statutory provision or if a manifest wrong has been done, which must be corrected.
Distinguishing statutory provisions from facts, the court has also held that where a question is raised in a review petition, which was open to be raised in the original petition, but had not been raised, then the court will not permit such question to be advanced in a review. A review is not a rehearing and cannot be used to re-agitate issues previously argued. While the issue of error has been addressed, what happens if a judicial decision is passed questioning a policy issue or matters falling exclusively within executive domain? Is the decision of the court the final word and authority? Simply stated, the answer is: yes!
Courts have accepted the philosophy of human fallibility and, hence, provided for review, but generally speaking, the courts don’t look favourably at review petitions. This is because review literally, and even judicially, means re-examination or reconsideration and the courts believe that in the realm of law, the courts and even the statutes lean strongly in favour of finality of decisions legally and properly made.
Hence, while a review will be entertained to remove an error, it is almost never exercised to disturb finality achieved through a judicial process, unless such interference is to prevent grave injustice.Consequently, the only check on the judiciary’s exercise of powers is the self-imposed discipline of self-restraint. The court has itself ruled that the judiciary must exercise judicial restraint and the judges must not try to run the government. But let us accept that, at times, it is difficult to exercise restraint when the executive and legislature are falling short of performing their duties or where administrative action is blatantly arbitrary and biased, as had been noted in the 2G scam case.
But even then, the court has acknowledged that while conducting judicial review of administrative action, the court cannot act as the appellate authority and substitute its views for the views of the decision-making authority. The role of the court is limited to ensure that the decision was passed in keeping with well-established principles of transparency, fairness and natural justice. And when acting as the appellate authority, the court needs to examine only questions of law and ensure that subordinate courts correctly appreciated facts and appropriately interpreted the law.
In conclusion, as regards review petitions that have been or may be filed, it is difficult to comment with any authority without studying the grounds on which the review is sought. Equally, it would be improper to speculate or even comment on their outcome given they are sub-judice. But based on precedence, it is hard to comprehend the court re-examining issues that were most likely examined during the initial hearing and on which the court applied its time and attention before delivering detailed judgments. But it’s a different matter if some material brought to the attention of the court has not been considered while deciding the case.
Hence, in the Vodafone case, depending on the outcome of the review, if the department is worried about the purported loss of revenue and bad precedence getting established, it would most likely seek to provide for taxation of Vodafone-type transactions in the Direct Taxes Code or by bringing about amendments in the Income-Tax Act. It’s true, no one likes Parliament enacting laws only to overcome judicial rulings. Then again, to survive in this era of coalition politics, sometimes the government is compelled to take decisions that can’t please everyone.
(The author is an advocate and corporate counsel)
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TIMES OF INDIA
Describing this as his “personal view”, Justice Ganguly said the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The doctrine of the crime falling in the’rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges, he said, adding the “sentencing structures” should be in consonance with the goals set by the Constitution. The remarks were made by Justice Ganguly yesterday at a two-day seminar on ‘Abolition of Death Penalty in India‘. The seminar was organized by the Jindal Global Law School at Sonepat in Haryana. The sitting judge of the apex court said sending a convict to the gallows, is legal but “barbaric, anti-life, undemocratic and irresponsible”.. The guilt of an accused should be proved beyond “lingering” doubt in cases warranting the award of capital punishment, which has so far not yet been evolved.
He cautioned that before giving death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances”. The Judge said the state must adduce evidence that the accused cannot be reformed.
SAMANWAYA RAUTRAY IN THE TELEGRAPH
New Delhi, Nov. 10: Former Supreme Court judge Ruma Pal today tore into the process of appointment of judges to the Supreme Court and the high courts and the lack of an embedded mechanism to ensure judicial accountability. Pal, a widely respected jurist not known to mince words, chose to put a caveat to her words: she was speaking from the “safe haven of retirement”.
“The process of appointment of judges to the superior courts was possibly the best kept secret of the country,” she said. Judges’ appointments are now initiated and cleared by a collegium of the four senior-most judges and the Chief Justice of India for the Supreme Court and three senior judges and the chief justice for a high court. Since 1993, the executive’s role has been to dutifully appoint those cleared by the collegium. The executive can return the names but has to appoint the judges if the collegium clears the list again. Pal said the criticism of appointments by the executive to the judiciary applied equally well to appointments made by judges to the judiciary.
The “mystique” of the process, the small base from which the selections were made and the “secrecy and confidentiality” ensured that the “process may, on occasions, make wrong appointments and, worse still, lend itself to nepotism”, she said. An indiscreet comment or a chance rumour was enough to rule out a person’s perceived suitability for the post, she said. Friendships and obligations also sometimes colour recommendations, she added. Consensus in the collegium is often arrived at by “trade-offs”, she said, with “disastrous effects”. Pal also lamented the growing “sycophancy” and “lobbying” which colour these appointments.
These appointments, she said, should be done by a judicial commission of non-partisan members. Unless the process is made transparent and the resource pool widened and some objective criteria laid down, “arbitrariness” in appointments will remain, she said.
There has been a good deal of talk in recent years on the judicial accountability and standards bill but it is still pending. It proposes a judicial commission made of people from all walks of life and strong representation from the executive.Pal was delivering the fifth V.M. Tarkunde memorial lecture here. Tarkunde, considered the father of the human rights movement in the country, was a lawyer in the Bombay Bar. He became a high court judge but later gave up the post to don black robes again. Tarkunde was never elevated to the Supreme Court because of extraneous reasons, speakers at the lecture said. His landmark judgment, that a person was entitled to a passport as a matter of right under Article 21 of the Constitution (right to life and liberty), was later adopted by the Supreme Court in the Maneka Gandhi case.
Pal also listed several sins of the judiciary (see chart). She called for a judicially “embedded” strong mechanism to ensure accountability. Any non-judicial mechanism will impinge on the judiciary’s independence, she said. The current solutions adopted by the judiciary — which give the CJI only the power to transfer, or not allot work, to erring judges — were inadequate and ad hoc, she said.
She described the increasing tribunalisation (the executive decision to set up specialised tribunals) as a serious encroachment on the judiciary’s independence. The judiciary, she said, had been “timorous” in not fighting these tribunals that force it to share its adjudicating powers with the executive. A government law that bars judges from foreign travel even at their own cost also came in for attack. This ensures that judges are obliged to the secretaries in various departments, she said.
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ABRAHAM THOMAS IN THE PIONEER
An attempt by Parliament to restrain judges from speaking against constitutional and statutory authorities in open court has provoked legal experts to question the legislature’s power to frame such a law.
Former judges and legal luminaries feel that the proposed move by a Parliamentary Standing Committee will violate the Constitution itself that bars Parliamentarians from deciding standards on judicial conduct, much less to even discuss about it. According to Article 121 in the Constitution, “No discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.” Such power is available only at the time when the Parliament discusses a motion for removal of a judge as in the present case of Justice Soumitra Sen. Similar restriction applies to state legislatures under Article 211.
A similar bar prevails on Courts to inquire into proceedings inside the Parliament. It was a result of this bar, a five-judge bench of Supreme Court in 1998 granted exemption to the MPs involved in the JMM bribery case by considering the act of voting in Parliament to be part of proceedings in the House. In 2007, the question came up again in the cash-for-query case where the SC clarified that “irregularity of procedure” followed by Parliament cannot be questioned by Courts, except on the question of illegality or unconstitutionality of the action in question.
Former Chief Justice of India Justice VN Khare said, “There is a Code of Conduct for judges restraining them from speaking out their emotions or personal views in open court. It is not possible to regulate judges’ conduct by the legislature.” This is contained in the Full Court Resolution of May 7, 1997 titled Restatement of Judicial Values.
The report of the Parliamentary panel, while discussing the broad contours of the Judicial Standards and Accountability Bill 2010, said, “The Committee feels that there is a need to bring such behaviour of judges within the purview of the judicial standards. The Committee feels that Clause 3(2)(f) of the Bill should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional or statutory bodies/institutions in open court while hearing cases.”
Clause 3(2)(f) of the Bill states: “a judge shall not enter into public debate or express his views in public on political matters or on matters which are pending or are likely to arise for judicial determination by him.” This is reproduction of the 1997 Resolution. Another former Chief Justice of India Justice JS Verma felt that there should be no fetters on judges making “fair comment”. Not talking in the context of the Parliamentary panel’s report alone, he said, “In a democracy everyone has a right to voice opinion. I do not know why there should be objection to any fair comment.” Again the use of the word “unwarranted” by the Parliamentary panel has a broad sweep which could be dangerous.
As a test, the former CJI suggested, “the judge must decide am I saying something that will help decide the merits of a case. Anything outside it should best be avoided.” He further said that judges in their judgments do pass observations that have no binding effect. “Every observation or comment is not to be seriously taken. The restraint in this regard should also be of the media against highlighting every such comment.”
Agreeing to the fact that of late some comments by judges was unfortunate and out of context, Justice Khare suggested that the way out is not the legislature setting terms for the judiciary. “Our sentiments cannot be regulated by legislation. There are times when the comments are made by judges in a lighter vein having no binding force. At best the restraint must be voluntary or any legislation may delegate this power to Chief Justice of India to regulate judges’ conduct.” To this view, senior advocate Jayant Bhushan added, “Hearing of a case involved arriving at a decision which involves debating and expressing tentative views. Such observations cannot be shut out as it amounts to gagging the judges.”
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BY SUKHADEO THORAT IN THE HINDU
Following Dr. Ambedkar’s example, Team Anna should use constitutional methods and enhance people’s faith in them. Otherwise it will convey the message that only coercive and unconstitutional methods work.
A group of people, with placards showing Dr. B.R. Ambedkar, staged a demonstration in Delhi a few days ago against Anna Hazare‘s proposals on the Lokpal and the methods used by his team. More often than not, Dalits look with suspicion on any attempt to tamper with the Constitution. Team Anna has, however, suggested that its Lokpal bill would benefit Dalits more than anyone else. This led me to look at Dr. Ambedkar’s position as compared to the mode of agitation being deployed by Anna Hazare and his team.
In his last, visionary speech after the submission of the drafted Constitution on November 25, 1949, Dr. Ambedkar warned of three possible dangers to the new-born democracy. These related to social and economic inequalities, the use of unconstitutional methods, and hero-worship.
Dr. Ambedkar first pointed to the contradiction between equality in politics in the form of one-person-one-vote and the inequalities in social and economic life. He argued that for political democracy to succeed, it needed to be founded on the tissues and fibres of social and economic equality. He warned that we must remove this contradiction at the earliest possible moment, or else those who suffer from inequality will blow up the structure of political democracy. Although we in India are trying hard to reduce the vast inequalities that exist, the working of political democracy is already under heavy stress due to discontent in some parts of country.
Dr. Ambedkar’s second, and more important, warning in the present context related to the methods to achieve social and economic objectives. He urged the people to abandon bloody as well as coercive methods to bring about change. This means abandoning methods of civil disobedience, non-cooperation, coercive forms of satyagraha and fast. Referring to the use of these methods during the British period, Dr. Ambedkar observed: “When there was no way left for the constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods.” But using them since that period, in his view, was “nothing less than the Grammar of Anarchy.” He advocated that “the sooner they are abandoned, the better for us as a nation.”
Dr. Ambedkar’s third warning related to “hero worship.” He was immensely concerned over the political culture of “laying down the liberties at the feet of great men or to trust them with powers which enable them to subvert their institutions.” He believed that there is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. No man can be grateful at the cost of his honour, and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of the people of India than in the case of any other country, for in India, bhakti, or what may be called the path of devotion or hero-worship, plays a part in politics, unequalled in magnitude to the part it plays in the politics of any other country in the world, argued Dr. Ambedkar. He went on to add that bhakti or hero-worship in religion may be a road to the salvation of the soul, but in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.
These views of Dr. Ambedkar also evolved through a much deeper commitment to constitutional methods and their use in the anti-untouchability movement during the 1920s and the 1930s. The 1920s and the 1930s saw a series of agitations led by Dr. Ambedkar to get public wells, tanks and Hindu temples opened to “untouchables.” In the present context, recalling two such incidents is very relevant, namely, the agitation for access to a water tank in Mahad, and for entry into the famous Kalaram temple in Nasik. In both cases, Dr. Ambedkar was up against violent high-caste Hindus, with the British sitting on the fence.
Dr. Ambedkar started the Mahad agitation in 1927, but the “untouchables” got access to the tank only in 1937 through a court order. The people of the high castes had managed a court order to ban the entry of “untouchables” into the tank on the grounds that it was a private tank. Dr. Ambedkar accepted the court order and discontinued a second march to the tank. But he fought through the courts and got justice in 1937, almost after 10 years. He did this using legal instruments and a peaceful mass movement, without the coercive means of fasts and hunger strikes.
Similarly, the agitation for entry into the Kalaram temple went on for four years, from 1930 to 1934. He discontinued the agitation in 1934 following opposition by priests, notwithstanding the support extended by Gandhiji. But he fought a legal battle, along with a peaceful agitation, for the next four years, and in 1939 ultimately secured entry to the temple for “untouchables.”
During the 1920s and the 1930s, Dr. Ambedkar combined mass mobilisation with legal methods in the anti-untouchability movement, but never allowed unconstitutional and coercive methods to take hold, despite instances of violent attack on “untouchables.” Once he came face to face with Gandhiji with the latter’s fast-unto-death and he had to compromise on the demand for a separate electorate with what is the present-day political reservation. Coercive means forced him to surrender the demand for a separate electorate, the consequences of which are visible today.
Team Anna should realise that the Indian Constitution provides ample opportunities for advocacy, through discussion and lobbying with parliamentary Standing Committees, Groups of Ministers, the Ministers concerned, the Prime Minister, courts, and above all through a peaceful agitation. With several political parties on their side, the possibility of reaching a middle ground is high. Experience with constitutional means shows that civil society activists, through their constant struggles, have persuaded the two successive United Progressive Alliance governments to acknowledge several basic rights and convert these into laws. The right to employment through the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the right to information, rights under the Forest Act, the right to education, and now the right to food, are some of the revolutionary measures that civil society has been able to accomplish through constitutional methods. It is an opportunity for Team Anna to use constitutional methods and enhance the faith of people in these; otherwise Team Anna will convey the message that only coercive and unconstitutional methods work.
As Dr. Ambedkar observed, due to certain aspects of Indian culture our people are highly vulnerable to hero-worship. How a yoga teacher could convert yoga devotees into religious devotees and finally into political supporters within a few years’ time is a classic example of what hero-worship and bhakti can do. Another religious preacher has threatened that he would use his religious followers for political end which he thinks does not require discussion with them as they follow him in whatever he tells them to do.
Anna and his team should recognise that for a new democracy like ours, which is operating within the framework of undemocratic relations based on the caste system, constitutional methods and social morality need to be cultivated and promoted with a purpose. The Lokpal Bill is too important a piece of legislation to be passed under threat and unreasonable deadlines. All its aspects need to be discussed with extreme care and with consensus among all sections. Dalits have begun to express concern about its implications for them. In a society where the anti-caste spirit and prejudices are present in abundance, they feel that given its proposed wide-ranging powers, it may be misused.
The Commissioner for Scheduled Castes reported about 11,469 complaints by Dalit government employees during the period from 2004 to 2010 that were linked to caste prejudice. Several thousand more complaints under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, such as giving “false or frivolous information to any public servant and thereby cause such public servant to use his lawful power to the injury or annoyance of member of SC/ST” are waiting for justice. Therefore, Dalits have begun to seek safeguards against the complaints emanating from caste prejudices in the Lokpal Bill. I think the government has rightly brought the bill for an open discussion before the Standing Committee that comprises MPs from all parties, so that the Bill is discussed by all sections in a peaceful milieu and not under duress and force.
Anna Hazare knows that the road to social change is a difficult one. He helped Dalits in a number of ways, including by repaying loans taken by Dalits with contributions from villagers. Yet he could not bring about fraternity between them — Dalits continue to stay in segregated localities in his village. Corruption, like untouchability, is deeply embedded in the social fabric of our society. Therefore, besides legislation its eradication requires changes through education and moral regeneration.
(Sukhadeo Thorat is Professor of Economics, Centre for the Study of Regional Development, Jawaharlal Nehru University. E-mail: firstname.lastname@example.org)
- Jan Lokpal Bill: A Dalit’s Viewpoint (drambedkarbooks.wordpress.com)
J VENKATESAN IN THE HINDU
The limits of power exercised by the Supreme Court when it chases injustice are the sky itself, a Bench of the apex court has said.
“It is plenary power exercisable outside the purview of ordinary law to meet the demand of justice. Article 136 of the Constitution is a special jurisdiction. It is residuary power. It is extraordinary in its amplitude. The limits of Supreme Court when it chases injustice are the sky itself,” said the Bench of Justice J. M. Panchal and Justice H. L. Gokhale.
“The appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with the ordinary appellate power exercised by appellate Courts and appellate Tribunals under specific statutes. The powers under Article 136 can be exercised by the Supreme Court in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist,” it said.
Writing the judgment, Justice Panchal said: “Where there is manifest injustice, a duty is enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment of the High Court as it is well-settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allow illegality to be perpetuated.”
Rejecting the contention that the Supreme Court should not do anything which was not prayed for or challenged, the Bench said: “When an apparent irregularity is found by this Court in an order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it. There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.”
The Bench was of the view that the power under Article 136 “is meant to supplement the existing legal framework. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.”
In the instant case, the appellant, A. Subash Babu, a police officer in Andhra Pradesh, was alleged to have entered into a second marriage by suppressing the fact of his first marriage which was in subsistence. Aggrieved, the second wife filed a complaint for offences of bigamy, suppression, cheating, dowry and cruelty. The Andhra Pradesh High Court quashed the charges of dowry and cruelty, holding that the second marriage was void but allowed other charges to remain. The present appeal was directed against this judgment.
Dismissing the appeal, the Supreme Court held that the woman with whom the second marriage was contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 of the Indian Penal Code. Further without any appeal against quashing of charges under Section 498 A, the Bench said it could order reopening it to render justice.
Height of perversity
“A bare reading of the complaint together with statutory provisions makes it abundantly clear that the appellant having a wife living, married the second wife by concealing from her the fact of former marriage and, therefore, her complaint against the appellant for commission of offence punishable under Section 494 and 495 IPC is maintainable and cannot be quashed on this ground. To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under Section 494 IPC though she suffers legal injuries would be height of perversity,” said the Bench.
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- ‘Parliament is the ultimate judge of what law should be, SC the ultimate judge of what law means. That has to be maintained’ (indialawyers.wordpress.com)
- Talk of judicial overreach is bogey: Supreme Court (indialawyers.wordpress.com)
- To avoid delay, guard against frivolous litigation: Supreme Court (indialawyers.wordpress.com)
Arun Jaitely in THE TEHELKA
Arun Jaitley examines the dangers of the apex court verdict on Chhattisgarh SPOs
THE SUPREME Court of India has quashed the appointment of Special Police Officers (SPOs) by the state of Chhattisgarh as unconstitutional and violative of Articles 14 and 21 of the Constitution. The effect of the judgment is that the institution of SPOs working in Chhattisgarh and under similar conditions in other parts of the country would cease to operate. SPOs have been appointed in areas where the environment has been threatened by insurgency to perform the functions of the regular police by protecting themselves and their fellow citizens. In Jammu & Kashmir these SPOs constitute village protection committees, which protect the village communities from insurgents. The same mechanism was effectively used in Punjab during the days of insurgency. SPOs is a system where the members of the community are empowered to protect the community. Policemen cannot be present in every house or every village, Areas where there is an apprehension of breach of peace and security due to insurgency requires the appointment of SPOs.
The Police Act of 1861 provides for the appointment of SPOs. Various state police legislations have similar provisions for SPOs to be appointed. The language of the legislations may be different. Those familiar with the ground realities of India would realise the utility of such SPOs. They supplement the normal police administration.
The judgment of the Supreme Court creates a crisis situation. The state would now have to recover arms back from the SPOs. This would itself be a daunting task. Every SPO realises that he would be on the Maoist hit list. He would have only two options left – either to join the Maoists or to continue to retain his arms to protect himself from the Maoists. Having been identified as an SPO without the backing of the state or arms to protect themselves, these SPOs would now be sitting ducks. The battle against the Maoists has been loaded against the Indian state. Maoists are now laying down terms for grant of amnesty to the SPOs. The vacuum created by their removal cannot be filled easily by the local police. The tranquility in the region is going to be disturbed.
A reading of the judgment of the Supreme Court prima facie indicates that the ideology of the author of the judgment has prevailed over constitutionalism. A legitimate question is whether the courts enforce the constitution or do they enforce ideologies. The Maoists are no reformers. Their principal objective is to destroy India’s parliamentary democracy and establish a communist dictatorship. The Maoists wish to dismantle every established democratic institution. If the Maoists were to take over India, the author of the judgment and other well-meaning judges like him would not be manning the Supreme Court. The court would be controlled by ideology and ideological objects of the Maoists. The judgment itself makes for an interesting reading. It is an ideological rationalisation of why the Maoists exist and fight for their causes. It is a denunciation of those who fight the Maoists.
The judgment states, “The state of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in the same manner and by the same mode as done by the Maoists.” It further states that, “Set against the backdrop of resource-rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly, and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance.” The judgment rationalises Maoist ideology by stating, “People do not take up arms, in an organised fashion, against the might of the state, or against human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is echoed in our conscience, we seek an order. However, when that order comes with the price of dehumanisation, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt.”
THIS JUDGMENT challenges India’s fragile national security. Undoubtedly, the judges have entered the political thicket. The court has acquired an ideology. It has chosen a preferred course of economic policy. It has also substituted the wisdom of the executive for its own wisdom of how Maoism is to be tackled. The judgment disregards the basic constitutional feature of separation of powers. The law declared by the Supreme Court binding on all subordinate authorities now is – “Predatory forms of capitalism supported and promoted by the state in direct contravention of constitutional norms and values, often take deep roots around the extractive industries.”
After a detailed ideological discourse, the Court goes on to find faults with the deployment of SPOs even though the Centre and the state legislation specifically empower them. It is held to be violative of Article 14 because youngsters with little education background from amongst the tribals are being given these appointments. It is held to be violative of Article 21, the right to life and liberty, because SPOs have low educational qualification and cannot be expected to understand the danger of fighting Maoism. Hiring such SPOs would endanger their lives and lives of others and therefore encouraging them is violative of Article 21. The payment of honorarium is yet another ground for quashing their appointment.
If the court found the honorarium inadequate it could always direct a more humane honorarium. If the court found that educational qualifications for becoming SPOs were inadequate, it could always direct the state to formulate a policy so that persons with reasonable qualification are appointed as SPOs.
The rationale of the judgment is ideology not constitution. When a court acquires an ideology it decides to frame policy. It dismantles the constitutional mandate of separation of powers. It enters the domain of the legislature and the executive. The rationale in this judgment has upset the constitutional balance. If the ideology of a judge decides constitutionality, the socio-political philosophy of the judge would become relevant. When the social philosophy of a judge is relevant you are back to the Emergency-eve days. There is no greater threat to judicial independence than a judiciary committed to a socio-political ideology and not the Constitution. India’s political process and parliament must seriously consider the consequences of this judgment.
Arun Jaitley is Leader of the Opposition in the Rajya Sabha.