Appointments still shrouded in secrecy

A Surya Prakash in The New Indian Express.

The controversy that has erupted over the proposed elevation of Karnataka High Court Chief Justice P D Dinakaran to the Supreme Court is illustrative of the wide-ranging dissatisfaction across institutions and professions over the present system of appointments to the higher judiciary.

It is rare to see so many bar associations (Karnataka, Tamil Nadu, Delhi and the Supreme Court) raising their voice against an appointment and to press for a system of selection that is transparent and fair. The frustration visible in the reactions of lawyers via these fora is understandable given the inaction in judicial and executive quarters even to the opinions of important national commissions, standing committees of parliament, eminent jurists and professional bodies, all of whom have pleaded for a more broad-based system to select judges.

Under the law as it exists today, it is entirely up to the collegium of judges to take a call on the allegations levelled against a particular judge. But the hullabaloo over Justice Dinakaran’s elevation only highlights the inadequacy of the procedure in vogue ever since the Supreme Court accorded primacy to the opinion of the Chief Justice of India and the collegium of judges in choosing members of the higher judiciary.

The National Commission to Review the Working of the Constitution (NCRWC), headed by former chief justice of India M N Venkatachaliah, declared in 2002 that it was not satisfied with the arrangement in regard to judicial appointments in which the opinion of the collegium of Supreme Court judges would have primacy over the opinions of others, including the president. It called for a more participatory mode, which would include the executive as well. It noted that on a plain reading of Article 124 of the Constitution, the power to appoint judges vests in the president and the president is expected to perform this function ‘after’ consultation and not ‘in’ consultation with the chief justice of India.The commission recalled how the law on judicial appointments had undergone change over the years.

For example, Article 217(1) requires the president to consult the chief justice of India, the governor and the chief justice of the high court while appointing judges to the high courts.In S P Gupta’s Case (First Judges Case), the question arose whether among the three persons consulted the CJI had primacy. The court said Article 217(1) placed all three functionaries on the same pedestal. In the Second Judges Case (1993), the court said the CJI must take into account the opinion of the two senior-most judges of the Supreme Court to ensure that the opinion was not merely his individual opinion but ‘the collective opinion of the body of men at the apex level in the judiciary’.

Also, the opinion of the CJI so formed, ‘should be determinative and almost binding on the president’. The court favoured an ‘integrated participatory consultative process’ for selecting the best and most suitable persons available. But in case of a disagreement between the president and the CJI, ‘the opinion of the latter must prevail’. Later in 1998, the court described the collegium as the CJI and four senior-most judges when this issue came up yet again via a presidential reference under Article 143.The NCRWC felt that the post-1993 arrangement for appointment of judges needed improvement. It said that a national judicial commission headed by the chief justice of India and comprising two senior-most judges of the Supreme Court, the Union law minister and an eminent person (nominated by the president in consultation with the CJI) should select judges.

It said ‘It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in such recommendations’. In other words, it wanted the process to be more broad-based.Parliament has been exercised over the complete monopoly of the judiciary over the appointment of judges ever since the Second Judges Case. In 2006, the Parliamentary Standing Committee on Law and Justice expressed its dissatisfaction with the procedure adopted since 1993. It urged the government to come up with an alternative mechanism to ensure the involvement of both the executive and the judiciary in selecting judges.More recently, the Second Administrative Reforms Commission (Second ARC) has come out strongly in favour of a national judicial council to select judges.

Though the Second ARC differed from the Venkatachaliah Commission on the composition of this body, the central theme remained the same. It said the council should be headed by the vice-president and comprise the prime minister, the Speaker of the Lok Sabha, the CJI, the Union law minister and the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha.However, none of these suggestions have been acted upon.

Apart from the commission headed by Justice Venkatachaliah, committees of parliament, the Administrative Reforms Commission, the Forum for Judicial Accountability, eminent jurists and legal luminaries like Shanti Bhushan, Fali Nariman and Ram Jethmalani and bar associations are seeking a more transparent and credible system to appoint judges. But the judiciary seems unwilling to shed its insular approach and the executive appears to lack the moral courage to make law on the lines suggested by Justice Venkatachaliah and others to overcome the limitations imposed by the Supreme Court in the Second Judges Case.By resisting change, the higher judiciary is giving the impression that it is still not ready to apply the principles of transparency and accountability, which it enforces in other organs of the state. If this impasse continues, we can be certain that the current rumpus over a judge’s elevation to the Supreme Court will not be the last.

suryamedia@gmail.com

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Appointments still shrouded in secrecy

Higher judiciary gives the impression that it is not ready to apply principles of transparency and accountability.

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CONDITIONS FOR PASSING INTERIM ORDER/ INTERIM RELIEF/ INTERIM INJUNCTIONS -SC

CIVIL APPEAL OF 2009  (Arising out of SLP (Civil) No. 18934 of 2008)

Zenit Mataplast P. Ltd       Versus   State of Maharashtra and Ors

Justice Altamas Kabir and Justice Dr B S Chauhan

September 11,2009

………

22.   In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.

23.   Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)

24.   Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down.There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721.

25.   Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).

26.   In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i)    Extent of damages being an adequate remedy;

(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

27.   In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

“The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

28.   This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.

29.   In Deoraj vs. State of Maharashtra & Ors. AIR 2004 SC 1975, this Court considered a case where the courts below had refused the grant of interim relief.   While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:-

“The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice.”

30.   Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India. (vide All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452)

31.   In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61, this Court observed as under:-

“The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed.”

32.   Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three      basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.

……

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SUPREME COURT STRONGLY ADVOCATES JUDICIAL REVIEW OF ARBITRARY STATE ACTION

CIVIL APPEAL OF 2009  (Arising out of SLP (Civil) No. 18934 of 2008)

Zenit Mataplast P. Ltd       Versus   State of Maharashtra and Ors

Justice Altamas Kabir and Justice Dr B S Chauhan

September 11,2009

……

18.     The Regulation 1975 provides for allotment of land by public auction or by entertaining individual applications. Therefore, the question does arise as to whether without taking a decision that land is to be settled by negotiation, the process of auction or calling the tender can be dispensed with.

19.     In the instant case the appellant had been asking the respondent no.2 to grant the lease of plot nos.F-16 and F-17, which had earlier not been the part of the Open Space No.9, on the basis of being contiguous and adjacent to the appellant’s existing factory at plot no.F-18. It has been canvassed on behalf of the appellant that the action of the respondent no.2 is arbitrary and unreasonable and not in conformity with the statutory provisions.

20.     Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157).

21.   In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fide as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. In I.R. Coelho (dead) by LRs Vs. State of Tamil Nadu, AIR 2007 SC 861, the Apex Court held as under:-

“The State is to deny no one equality before the  law……..Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract…….Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review.”

22.   In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations.

…..

33.Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. (Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors. (1995) 1 SCC 638; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).

34.If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of

respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot nos.F-16 and F-17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot no.F-16, (a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.