The lie of the land

The court presses home its power to intervene when ‘little Indians lose their small property’ to land acquisition by state governments

M J Antony / New Delhi March 30, 2011, 0:33 IST

Parliament has not been able to pass an updated land acquisition law for several years, though this is a burning issue and innocent blood has been shed in many states. Meanwhile, the Supreme Court continues to deliver judgments in which disputes arose several decades ago. Two such decisions in recent weeks deal with the governments’ claim of urgency in land takeovers. The governments’ subsequent conduct showed the acquisition was neither pressing nor imperative. The court, therefore, underlined that the landowner’s right cannot be “flattened and steamrolled” on a mere declaration that the acquisition is urgent.

Section 17 of the Land Acquisition Act of 1894 empowers the government to acquire land for urgent reasons without following the procedure of giving land losers a hearing. This provision is prone to great abuse, as illustrated in the two judgments.

Incidentally, this is not the only provision that has been consistently manipulated by governments to benefit powerful interests. The omnibus term “public purpose” is a woolly and hard-to-contradict excuse for land acquisition. The rate of compensation is another sore point in the acquisition law, because of which farmers have to climb the shaky ladder of law up to the Supreme Court to demand a just amount. The litigation often turns out to be the only bequest for their children.

Returning to the urgency clause, the judgment in the appeal case State of West Bengal vs Prafulla Churan reveals the high-handedness of the state government. The land in Kolkata was acquired first in 1944 under the Defence of India Act. While the government still held possession, it invoked the West Bengal Requisition and Control Act in 1959 to continue to hold on to the land. This was challenged by the owner and the Calcutta High Court asked the government to return the land to the owner. But the government invoked the “urgency” clause in the Land Acquisition Act on the grounds that the land was required for the state ceramic development board. The litigation continued with the government losing all the way. Now it has lost in the Supreme Court too.

The court stated that all schemes relating to development of industrial and residential areas must be urgent in the context of the country’s need for increased production and more residential accommodation. Yet, the very nature of such development schemes does not appear to demand emergent action to eliminate summary enquiries that are imperative. The development of an area or a city takes many years so there is no reason that summary enquiry as contemplated under Section 5-A may not be held and objections of landowners may not be considered.

In the second judgment dealing with the “urgency” claim, Dev Sharan vs State of UP, the government wanted to build a new jail in Shahjahanpur because of congestion — 1,869 people are lodged in a 140-year-old, dilapidated building at present. But the noble intention would not justify the deprivation of the property rights of the agriculturists. The government moved slowly and took nearly a year to complete the acquisition process. There was sufficient time to give the landowners a hearing. Unfortunately, the writ petitions of the farmers were dismissed by the Allahabad High Court; it approved of the emergency requirement of the government.

On appeal, the Supreme Court noted the recent negative trend in land acquisition and pointed out how it affected the property rights of the citizens. The law is of colonial, pre-constitutional vintage, said the judges, and it is “drastic and expropriatory in nature as it confers on the state a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the state, it has to be accepted that without right to some property, other rights become illusory. This court is considering these questions especially in the context of some recent trends in land acquisition.”

What follows after a discussion on the rampant misuse of the amorphous phrase, “public purpose”, should awaken state governments eager to take over land and give it to industries. The judgment reads: “The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the state. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of their power of judicial review, focus their attention on the concept of social and economic justice.” Even during the current election fever, no political party has seriously taken up this raging issue.

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Judicial Standards and Accountability Bill

Supreme Court of India

Ajit Prakash Shah

In a system where half the litigants must necessarily lose their cases and where most complaints against judges are frivolous, the Bill, if implemented, would mark the beginning of the end of the judiciary.

The last two decades have marked the extraordinary rise of India. This has however been tinged with cynicism about our major democratic institutions and a pessimism about their future. The judiciary, which till now has been looked upon as the strongest pillar of Indian democracy, has been beset with unprecedented problems. In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges. The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. It is in this light that Parliament’s proposed Judicial Standards and Accountability Bill, 2010 must be seen.

This Bill appears to be a hurried and knee-jerk reaction to recent events, and has the potential to seriously undermine judicial independence. It seeks to devise a new “complaint procedure” under which any person may be able to file a complaint in writing against any judge of a superior court. Upon such a complaint being filed and examined, the Judicial Oversight Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.

The issue of Judicial Standards must be seen in the context of Art 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of “proved misbehaviour or incapacity.” Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the misbehaviour or incapacity of a judge.

Cleverly disguised Bill

The present Bill, cleverly disguised as being permissible under Art 124(5), is an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than the disease. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now theoretically be done by only one person.

It is true that judicial commissions exist in other countries like the U.S. and Canada, but their reach does not extend to the apex court. Also, adopting such structures from other countries without having regard to the unique conditions existing in ours, is untenable and fraught with the danger of destabilising our delicate constitutional balance.

Outlined below are some of the other major defects in the Bill:

Definition of misbehaviour: The Bill seeks to provide a straight jacketed definition of misbehaviour in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, that absent a de minimis exception, even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive that to the extent that the definition is exhaustive (since it uses the word “means”), it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision. The Constitution framers had been careful not to define the term misbehaviour, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehaviour (or incapacity) had been occasioned.

Statutory provision for judicial standards: The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. Sixteen of the 18 enumerated standards are derived from the “Restatement of the Values of Judicial Life” adopted at a Full Court Meeting of the Supreme Court on May 7, 1997. However, the very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.

A significant portion of litigation before higher courts today is public in nature and involves the State as one of the parties. Laws are also routinely impugned for their unconstitutionality. Given this, investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.

Scheme of filing complaints: Under the Bill, “any” person may file a complaint in a prescribed format. Further, the proposed Judicial Oversight Committee will just act as a post-office and refer each complaint to a Scrutiny Panel. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a colossal waste of time.

Clause 18 provides that the Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, the possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.

The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out.

Furthermore, the composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined. Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.

Minor punishments: The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.

Atmosphere of secrecy: Through Clause 43, the Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.

Conclusion

It is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.

Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. The first site of change must be in the process of judicial appointments. The present system where judges of the superior courts are chosen based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The legitimacy of the judiciary ultimately flows from public support, which cannot be maintained without a transparent and open selection process.

The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian. The citizens of India deserve no less.

(Justice Ajit Prakash Shah is former Chief Justice of the Madras and Delhi High Courts.)