Report on Tapping of Telephones – Govt of India Clarifies

Indian Parliament Building Delhi India

Image via Wikipedia

There have been a number of articles on the Cabinet Secretary’s report regarding tapping of telephones which appeared in some section of the media. It is important that the correct factual position is presented to the media. The provisions for authorization of interception are contained in Section 5(2) of Indian Telegraph Act, 1885 read with Rule 419(A) of the Indian Telegraph Rules, 1951 as well as Section 69 of the Information Technology Act, 2000 read with Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.

The Hon’ble Supreme Court has upheld the constitutional validity of interceptions and monitoring under Section 5(2) of the Act through its order dated 18.12.1996 in Writ Petition (C) No.256/1991 by People’s Union for Civil Liberties (PUCL) Vs. Union of India. It has also observed that the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “Right to Privacy”, and accordingly, held that telephone tapping would infringe the Right to Life and Right to Freedom of Speech & Expression enshrined in Articles 21 and 19(1)(a) respectively of the Constitution of India, unless it is permitted under the procedure established by law. The Hon’ble Court further observed that Section 5(2) of the Act clearly provides that ‘occurrence of any public emergency’ or ‘interest of public safety’ is a sine qua non for the application of these provisions. Neither of these are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.

In this regard, the Hon’ble Court has recalled its observations in the case of Hukum Chand Shyamlal Vs. Union of India and others, 1976 stating that ‘economic emergency’ is not one of those matters expressly mentioned in the statute, and further that mere ‘economic emergency’ may not necessarily amount to a ‘public emergency’ and justify action under Section 5(2) of the Act, unless it raises problems relating to the matters indicated in the section. ‘Public emergency’ would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. It is one which raises problems concerning the interest of public safety, the sovereignty and integrity of India, the security of the State, friendly relations with sovereign States or public order or the prevention of incitement to the commission of an offence. ‘Public Safety’ means the state of condition of freedom from danger or risk for the people at large. It has been stated further that when either of these two conditions are not in existence, authorities cannot resort to telephone tapping, even though there is satisfaction that it is necessary or expedient to do so in the interests of sovereignty and integrity of India, security of the State, friendly relations with sovereign States, public order or for preventing incitement to the commission of an offence.

In the light of the above, the Hon’ble Supreme Court gave directions covering the issue of institutional safeguards to be put in place in respect of interception under Section 5(2) of the Indian Telegraph Act, which was incorporated in terms of Rule 419(A) of the Indian Telegraph Rule, 1951.

In the light of recent controversies on account of interception of certain telephone numbers by a designated authorized agency, which were extensively reported by media, the Hon’ble Prime Minister directed the Cabinet Secretary to look into the Rules, Procedures and Mechanism to avoid their misuse. After examining all the relevant issues, Cabinet Secretary recommended further comprehensive refinement of Rules and Procedures, in addition to providing for stronger penal provisions for violations by amending the law. It was also recommended to either remove the CBDT from the list of authorized agencies in respect of telephone interception as the income tax laws fall within civil jurisdiction and do not always impinge on the public safety or to specify stipulations regarding the extent of surveillance allowed to the agency, including the level at which requests are to be made for authorization by the Home Secretary. It is clarified that the law does not permit use of telephone tapping and monitoring of conversations to merely detect tax evasion. There are specific laws and rules that contain provisions for detection of unaccounted wealth and evasion of taxes, and interception of telephones without ‘public emergency’ or ‘public safety’ being at stake is not in accordance with the law, as exhaustively interpreted by the Hon’ble Supreme Court. The recommendations made by the Cabinet Secretary reiterate this established legal position, which should not be seen in terms of conflicts between individuals or interest groups.

Advertisements

Judges may be kept out of Lokpal radar

INDIAN EXPRESS

It is now certain that the higher judiciary wouldn’t be under the purview of the proposed Lokpal. Consensus to this effect emerged at a roundtable held here in which members of the civil society, including four non-government members of the Lokpal Bill drafting committee, two former Chief Justices of India and many prominent citizens participated.

Another important issue on which there was “near unanimity” at the meeting was the procedure for appointment of Lokpal. “Almost everybody, including some members of the drafting committee, agreed that the procedure for appointment of Lokpal as provided in the Jan Lokpal Bill may not work. There was near consensus on having a search committee to first shortlist candidates and then a selection committee headed by the Prime Minister to make the final selection,” sources present in the meeting told The Indian Express.

The selection committee, a source said, could comprise the Prime Minister, presiding officers of the two Houses of Parliament, Leaders of Opposition in the two Houses of Parliament, two Judges of the Supreme Court and two eminent citizens to be nominated “unanimously” by other members of the selection panel.

However, the participants in the roundtable were sharply divided on whether the office of the Prime Minister of India should be under the purview of the Lokpal. Karnataka Lokayukta Justice Santosh N Hegde, former Union Law Minister Shanti Bhushan, lawyer Prashant Bhushan and RTI activist Arvind Kejriwal, all members of the Lokpal Bill drafting committee, participated in the roundtable.

Speaking to mediapersons at the end of the meeting, former Chief Justice of India J S Verma said there was consensus that higher judiciary should be kept out of the Lokpal’s purview. “While there is no question that some measures should be in place to make the judiciary accountable, it was felt that to curb corruption in the higher judiciary, a better mechanism is required,” he said. To a question on whether the four members of the drafting committee who participated in the confabulation were in agreement on the issue of exclusion of judiciary, Loksatta founder Jayaprakash Narayan, who was one of the organisers of the roundtable, replied in the affirmative.

On the issue of whether or not the Prime Minister should be under the purview of the Lokpal, both Justice Verma as well as former CJI M N Venkatachaliah said while the government itself seemed agreeable to this idea, it was felt by many of those present at the roundtable that the Prime Minister shouldn’t be open to any investigation by the Lokpal in the interest of political stability as well as the fact that he is the country’s face in the international arena.

“But, there were strong views from both sides on this issue,” Venkatachaliah said. The two former CJIs, incidentally, were among those who opposed the demand to bring in the PM under the purview of the Lokpal. It is learnt that many participants in the roundtable conference were of the view that the proposed Lokpal should take up only “sensitive” cases, including those involving huge bribes and those affecting the prestige of the country. “Nobody would like the Lokpal to deal with cases of bribe involving a few thousand rupees,” observed a participant. On the contentious issue of whether the CBI’s anti-corruption wing should be merged with the proposed Lokpal, the majority sentiment was that the CBI should remain a “distinct, independent” entity. “However, it was felt that the CBI should be freed from government control,” said a source.

Checking on the House

Indian Parliament Building Delhi India

Image via Wikipedia

ARUN JAITELY IN THE INDIAN EXPRESS

Middle-class cynicism is frequently directed against the functioning of Indian democracy, political parties and Parliament. An impression that all politicians are dishonest and that Parliament is only disrupted, however erroneous, has caught the public imagination. The truth is to the contrary.

The Indian Parliament has evolved over the last six decades. There would be no better system to suit Indian conditions than parliamentary democracy. A country with diverse opinions, regions, religions, communities and tribes can find no system better than the present one where all sections of society and shades of opinions become a part of the parliamentary decision-making process. The feeling of involvement and inclusion is the strength of the Indian Parliament.

One of the greatest challenges before Indian democracy is to curb the use of money power in elections. Sixty-four years after Independence we have still not been able to evolve a transparent mechanism for funding politics. This certainly lowers the credibility of our parliamentary democracy.

Parliament is a forum where governments are held accountable through questions, motions and debates. It is an empowered forum for legislation. It is the appropriate forum where issues of public concern and importance are raised. Conventions have a very important role in parliamentary functioning. Thus, knee-jerk reforms have to be avoided. What we must lean in favour of is the strengthening of established institutions and conventions. Changes must be well-thought-out, debated and then implemented on the strength of consensus. The establishment of department-related standing committees is one of the key reforms that Parliament has evolved in recent years. Standing committees deal with raw legislation drafted by the government. They hear various stakeholders, they examine each clause almost word by word. Contentious legislations are scrutinised by standing committees for months together. The strength of a standing committee is its predominant non-partisan functioning. There are no whips and no public gaze. Members belonging to the same party can express contrary viewpoints. The maturity of the Indian Parliament is evident from the fact that most reports of the department-related standing committees on legislation are unanimous. Occasionally, there are dissenting notes. It has been suggested that the committees should now be subjected to the public gaze and even telecasting be permitted. However populist the measure is, I would hate to jump to any hasty conclusion at this stage. The committee system has evolved over the last two decades. The standing committee system should be allowed to mature before we move to the next step.

The biggest weakness of the Indian Parliament is the lack of long duration. India’s population is growing; so are the problems. To meet for less than 70 days in a year is inadequate. Short durations lead to paucity of time available for debates, issues of public importance and legislation. When members, particularly from the opposition, want to raise several issues, the privilege is denied for paucity of time. The gagging of debate leads to obstructionism. Parliamentary obstructionism then becomes an acceptable mode to highlight an issue of public importance. More time is lost. Legislations are then cleared in haste in order to cover up the backlog. There have been suggestions in recent years to legislatively provide for a minimum 100 days’ session every year.

However, the duration may have to be enhanced a lot more. Similar reform is required in the states where the number of days of each assembly is being curtailed. Many governments find parliamentary accountability inconvenient and hence resort to shorter sessions. State assemblies are now meeting for 20 to 50 days a year. This flaw needs to be corrected.

A parliament is judged by the quality of its debates. Live telecast of Parliament, even as a substitute for adequate print media reportage, has incentivised members to prepare better and conduct themselves properly. In times to come, the quality of performance of an MP on the floor of the House will impact the prospects of returning in the next elections. His performance in the House has to be a relevant consideration in how his constituents judge him. In the last few decades the participation of prime ministers in parliamentary debates has declined. Their effective intervention is confined to reading written texts prepared by their offices. This is unacceptable. Even on the Prime Minister’s Question day it is the minister of state in the PMO who responds to most questions. The prime minister is the chief executive in a parliamentary democracy. He must be the most accountable executive. He cannot be accountable through a proxy system. It is, therefore, important that prime ministerial accountability in a democracy through parliamentary procedures is strengthened. In Britain, the system of Prime Minister’s Questions (PMQ) has successfully evolved over the years. Every Wednesday morning the PM faces impromptu questions in the House of Commons. Short questions with crisp and direct answers render the Wednesday morning thriller before television audiences. People judge the PM by the content and the quality of his responses. Opposition leaders and other members are judged by the quality of their intervention. The PM has to be the most accountable in a democracy. His depleting presence in Parliament compels one to suggest that the PMQ be successfully replicated in India. It will add to the quality of debate, a popular interest in Parliament, restoration of faith in India’s parliamentary democracy and certainly be the most effective mode of exercising one’s right to know.

The government and the opposition both have a key role to play in Parliament. Conflicting opinions and at times even tensions between the two bring out the best in Indian democracy. However, there must be healthy communication between the political leadership in government and the opposition. Of late, there is a decline in this consultation. The initiative for this consultation must come from the government. This consultation has to be real rather than formal. It is for the government of the day to consider whether the decline in this consultation is deliberate or attributable to the introvertish character of the UPA’s political leadership.

The anti-defection law emphasises the rigidity of the whip. A whip regulates the house. It enforces political discipline on members of a political party. The whip should be confined merely to voting. It should not regulate the content of the debate. The debates must be thought-provoking, buoyant and based on ingenuity. That will add to the strength of Indian democracy.

The writer, a BJP MP, is leader of the opposition in Rajya Sabha, express@expressindia.com

http://www.indianexpress.com/news/checking-on-the-house/780826/0

Pro-poor judicial initiatives: now for a media push

Supreme Court of India

THE HINDU / NEW DELHI

Three pronouncements made on three consecutive days this month by the Supreme Court of India have brought relief to different groups of economically and socially deprived people. The beneficiaries include children sold out by poor parents to work in circuses as child labour; young men and women determined to get married crossing caste barriers and harassed for that very reason by ‘khap panchayats’; and the hungry poor across the country denied their right to food, even as thousands of tonnes of food grains rot in government godowns.

Interestingly, the media, by and large, have been playing a proactive role in bringing the issues on to the public agenda. Daily newspapers and magazines have published several articles about hundreds of children, mostly girls, who were brought to India from neighbouring countries, especially Nepal and Bangladesh, to work in circus companies that have proliferated across the country. The living conditions were inhuman, resembling slavery. Thanks to some dedicated NGOs working in India and Nepal, the Indian media have exposed the trafficking in girls, who end up being exploited and sexually abused by circus owners and their men. This is the pathetic life of girls bought for paltry sums of money from poor parents not only from adjacent countries but also from Indian States such as Uttar Pradesh and Bihar. This is the price these hapless children and their families pay to keep our children laughing. BBC News and international news agencies have also reported on the girls’ sufferings, while performing high-risk high-wire programmes.

Two decades ago, the hundreds of circus companies were in deep trouble owing to a gradual decline in public patronage. They sought State help to keep them going and save their performers and the emaciated animals that trek with them from camp to camp. The emergence of a large middle class with real purchasing power restored the economic health of the circuses, which have become one of the favourite entertainers for middle class children.

A rights-based judgment

In a rights-based judgment delivered on April 18, the Supreme Court banned the employment of children in circus companies. The court directed the Central government to take immediate steps to rescue the suffering circus workers and arrange for their rehabilitation. Passing orders on a petition filed by the Bachpan Bachao Andolan, an organisation working for children, a Division Bench comprising Justice Dalveer Bhandari and Justice A.K. Patnaik directed the central government to issue suitable notifications prohibiting employment of children in circuses within two months, in order to implement the fundamental right of children under Article 21-A of the Constitution, which guarantees the right to “free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” The Bench asked the government to raid all circuses and liberate children and check violation of their fundamental rights.

Another Supreme Court judgment delivered on April 19 was highly critical of the caste system and declared ‘khap panchayats” illegal. They were instrumental, the court observed, in encouraging honour killings and indulged in other atrocities against boys and girls married or tried to marry from outside their castes. The Bench, comprising Justice Markandey Katju and Justice Gyan Sudha Misra, wanted the government to ruthlessly stamp out the barbaric practice. A significant aspect of the judgment was that it directed the administrative and police officials to take strong steps to prevent such atrocious acts as honour killing. The court also asked for departmental action against officials who failed on this score.

It may be recalled that when States such as Haryana and Rajasthan reported a series of honour killings a few months ago, the media went all out against the spread of the crimes and the failure of the State police and administration to arrest it. When the Central government floated the idea of a ban on khaps, even Chief Ministers and ex-Minister sought to scuttle the move.

Starvation deaths

No less important is the serious concern expressed by Justices Dalveer Bhandari and Deepak Verma over the increasing number of starvation deaths in the country. They were hearing petitions relating to the streamlining of the public distribution system (PDS). The Supreme Court has once again questioned the approach of the Central government to the eradication of malnutrition and its failure to arrest starvation deaths in some areas. Justice Bhandari also questioned the Planning Commission‘s estimate that 36 per cent of the population was below the poverty line, which was inconsistent with the claim of several States, including Congress-ruled States, that the percentage was much larger. The judge wondered how the Planning Commission could fix a per capita daily income of Rs. 20 for urban areas and a per capita daily income of Rs. 11 for rural areas to determine BPL status. He also wanted the Deputy Chairman of the Planning Commission to file a detailed affidavit within a week “because the entire case rests on your figures.”

Progressive voices, including economists, scientists, and social activists, have been articulating in the media the demand for a universal PDS. When the National Advisory Committee was about to endorse it, the government ruled it out once again. At a time the Supreme Court has stepped up the pressure for a pro-people solution, a well-informed and decisive media push will certainly help.

readerseditor@thehindu.co.in

http://www.hindu.com/2011/04/25/stories/2011042552971100.htm

Looking for knights in black robes

Supreme Court of India

Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance 
S.H. Kapadia , Chief Justice of India at the 6th Setalvad Memorial Lecture in New Delhi

PUBLISHED IN THE TRIBUNE

Leading an exemplary life is the highest form of ethical conduct. This is the keystone of our modern codes of judicial conduct. We need a clean man in the black robe to uphold the independence and the integrity of the judiciary. Action is an extension of values. A Judge’s obligation must start and end with his analysis of law, not with personal beliefs or preferences. The Judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such Judges. Similarly, when a family member regularly appears before a Judge, adverse public perception can affect the working of the integrity of institutions like the judiciary.

The active involvement of Judges in community organisations has also evoked a similar response when their civil society associates appear as litigants before them. Frequent socialising with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the Judge is susceptible to undue influence in the discharge of his duties. In such a situation, Judges must keep the part of impartial, objective, fearless and independent justice alive. 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 except on purely social occasions. When one enters the Judges’ world, one inevitably has to impose upon oneself certain obvious restrictions. Judges owe a solemn duty to the community at large and from day-to-day they must ask themselves whether they have done or said anything which is inconsistent with the oath of office they have taken and which otherwise are consistent with their obligations as a Judge.

One more aspect needs to be highlighted. Internal interference from a high-ranking Judge which, if resisted, could lead the lower-ranking Judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt Judges.

Drafting judgements

In drafting “know what to omit rather than what to include”.

Judgements are not to be written as simplified newspaper pieces for public consumption. The process of reasoning in a judgement should reflect its integrity and explain its conclusions. Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance. The Judges of the Supreme Court of India should revisit the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to enact laws. We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation. We must remember that our Constitution recognises separation of powers and that the legislatures and the government can be made accountable for their legislation and actions by the electorate if they err. In many PILs, the courts freely decree rule of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of the government have failed or are indifferent to the solution of the problem.

In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance. In such matters, the courts must try to ascertain whether the issue has a legal content or a political content. In the latter case, the courts should invoke the doctrine of deference. The function of the courts is to review the acts of the legislature and not to impose its own policies or values on the society or the legislature.

We do not have the competence to make policy choices and run the administration. Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty, raises questions of accountability of the judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or to the legislature or to the executive. We, Judges, should remember that the validity of our decisions cannot rest on popularity. Resisting the pressure to please the majority is the strength of the judiciary, not its weakness. Judges who invoke the Constitution to protect the rights of people and who declare a statute unconstitutional are not legislating from the Bench, nor are they thwarting the will of the majority. They are merely carrying out their oath of office and following the rule of law.

In the context of the developing world wherein litigation impinges on the economy or commerce, many Judges are cowed into submission rather than walk the tight rope of balancing the public interest and be tarred with the epitaph of “usurping the legislative function”. Lawyers and the public, apart from criticising, must engage in constructively empowering the judiciary. In conclusion, on this topic, I may add that it is the discipline of circumstances that makes us more worthy. The task of forming and giving opinion, in the course of judging, is based on many activities; resolving disputes, setting precedents, following precedents, deliberating with colleagues, displaying compassion and so on. However, each of these activities raises questions of judicial ethics. This is where the oath which we take binds us.

Separation of powers

Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power, executive power and judicial power and what the limitations on those powers are. In a federal State, the allocation of governmental powers (legislative, executive and judicial) among Central and State authorities is a basic concern.

A constitution has been described as “a mirror reflecting the national soul”: it must recognise and protect the values of a nation. The word “constitutionalism” is sometimes used to convey the idea of a government that is limited by law. The phrase “rule of law” is used to convey the same idea. These terms describe a society in which government officials must act in accordance with the law. This in turn requires an independent judiciary and an independent legal profession. Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the Constitution. Supremacy of the Constitution is the philosophy of the constitution. Well established rules of interpretation require that the meaning and intention of the Constitution framers must be ascertained from the language of the Constitution itself; with the motives of those who framed it, the court has no concern. At the same time the Constitution is not to be construed in a narrow pedantic sense and a broad liberal spirit should inspire those whose duty it is to interpret it. After 1980 the court has changed its direction to securing the rights of citizens from arbitrary actions of the executive and creating a human rights jurisdiction by an enlarged meaning of Article 14 (The Right to Equality) and Article 21 (The Right to Life and Personal Freedom). Between them the court has for all practical purposes introduced the “due process provision” in the Indian Constitution in such matters. In the so-called public interest litigation (PIL) the court freely decrees rules of conduct for government and public authorities which are akin to legislation and oversees their working.

To give a few examples: the court in the interest of clean environment has ordered and supervised the use of clean fuel for vehicles in New Delhi; it has framed schemes of admission in educational institutions throughout India, and made the right to education into a fundamental right from a directive of State policy, and made guidelines to be adopted by public institutions for controlling sexual harassment of women at work places. The jurisdictional peg on which it is done is that such matters affect “the life” of the citizen under Article 21 of the Constitution. Its justification is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government.

By and large such orders have been considered necessary and welcomed by the public, but the question which arises is – can judges ignore the separation of powers in the Constitution and become administrators, and do they have the competence to make policy choices and run the administration? Legislatures and government can be made accountable for their legislation and actions by the electorate if they err. Judicial activism of this type which is not grounded on any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of a judiciary.

Judicial accountability

The value system takes precedence over personality. Honesty is a tendency.

Judicial accountability is a facet of judicial independence. It must be developed consistent with the principles of judicial independence. Constitutionalism is not enhanced by hostility directed against the judiciary which plays such a pivotal role in maintaining the rule of law. Coming to judicial accountability, there is no difficulty in accepting the principle that in a society based on the rule of law and democratic principles of governance, every power holder is, in the final analysis, accountable to the people.

The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception.

The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decision making and independence from external forces on the one hand and accountability to the community on the other hand?

While not recommending the regular election of judges or their recall by popular vote, I would venture to suggest that Judges, unlike legislators, ministers or public servants, should be accountable to the jurisdiction they serve through their absolute adherence to a set core of judicial values. Through inheritance of British constitutional principles, judges in many Commonwealth countries are accountable to either the legislature or the executive, in the sense that one or the other of these two branches of government is vested by the Constitution with the power to remove judges for proven misbehaviour or incapacity. At times this power has been grossly abused in some of the countries.

Judges inevitably end up in the political arena in deciding controversial cases – whichever side they rule. In resolving disputes between citizens and the State or evaluating a constitutional issue, Judges are forced to make decisions which are at times termed political. Judges are, however, not in a position to defend their judgements as they are bound by a code of silence. As stated above, Judges should account for the exercise of judicial power, especially when pronouncing judgements of significance.

Public and media criticism of Judges and judgements is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. But, what I am concerned with is response to criticism, particularly criticism that is illegitimate and irresponsible. In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare – what most people desire is justice which favours them. Our Code of Judicial Conduct will meet its goal if a talented, hopeful young person looks in the mirror and sees in the reflection the desire to exemplify the standards of justice and the possibility of doing so. Excerpted from the M.C. Setalvad Memorial Lecture delivered by the Chief Justice of India in New Delhi last week Setalvad set standards for future Attorney Generals In December, 1937, M.C. Setalvad became the Advocate General of Bombay and in that office, as in every office he subsequently held, he rose to the demands of the office. 1943 would have seen him as the first permanent Indian Chief Justice of Bombay, for he was invited to fill that high office. But, he declined the invitation on a ground which must fill every member of the Bar with pride; he refused to be a party in superseding the claims of the first court friend, Sir Harilal Kania. And when those claims were nevertheless passed over, i Setalvad felt an indignation which found a noble expression in the moving words he used in the Supreme Court on the occasion of Chief Justice Kania’s death.

But, what the Bench lost, the Bar of this country gained and, in 1950, Setalvad became the first Attorney General for India. He set standards which future Attorney Generals were required to maintain. He realised, for instance, that for lawyers to charge fees not according to the complexity of a case but according to the traits of a client was to reduce the great profession to the level of a trade or business. The greatest service Setalvad has rendered to the law and the administration of justice lies in the work he did as the Chairperson of the Law Commission and as the author of its report. The picture which that report presents regarding falling standards of the Bench and the Bar is grim but the reality is grimmer.

Nothing would have been easier for Setalvad to have his son Atul with him at Delhi and push him into practice in a year or two. He, however, refused to do so. He left his son in Mumbai to make his way at the Bar for himself, as Setalvad had made it before. All this may appear quixotic to the practical man; but it indicates the fundamental stability of Motilal’s character and his deep awareness of the fact that it does not profit a man to destroy his own and his son’s self-respect for the sake of easy success.

http://www.tribuneindia.com/2011/20110424/edit.htm#1

Related Articles

Green Tribunal: SC lifts stay, body to function from May

INDIAN EXPRESS

New DelhiThe National Green Tribunal, a judicial body that will exclusively deal with environmental issues, is likely to start functioning from May with the Supreme Court lifting a stay imposed by Madras High Court on rules of appointment of its members. The apex court stayed the High Court’s order and directed the Ministry of Environment and Forest (MoEF) to “keep all rules and regulations in place by May 6” and inform the bench about its status, so that the body may start functioning. A bench comprising justices G S Singhvi and A K Ganguly also indicated that even if some deficiencies remain in the rules, the court will pass orders to the effect that petitions may be filed and interim orders may be sought from the green tribunal with immediate effect after May 7.

The bench passed the orders on a petition by MoEF seeking transfer of the case, challenging rules for appointment of members of National Green Tribunal, from Madras High Court to the apex court. The Centre had sought transfer of the case on the ground that the apex court was already hearing a matter related to non-appointment of expert and judicial members for NGT, due to which the only environment appellate body has remained non-functional since it came into existence on October 18, 2010.

The case was initiated in 2005 by environmental activist Vimal Bhai, challenging environment clearance granted for execution of 600 MW Loharinag-Pala hydroelectric power project at Uttarkashi in Uttarakhand. Since then the case is pending due to non-appointment of members for National Environment Appellate Authority (NEAA). With NGT coming into existence, NEAA ceased to exist but the problem of non-appointment of members continued and rendered NGT non-functional. The apex court had on December 16 last year directed the Centre to appoint expert and judicial members for the tribunal and make NGT functional in one month.

However, even as the appointment process was on, the Madras High Court stayed the rules for appointment of judicial members of NGT on a plea by a law student, M Naveen Kumar. Centre then sought transfer of the case from the high court to the Supreme Court.Additional Solicitor General Indra Jaisingh during the previous hearing on Monday informed the court that five judicial and six expert members have been selected and MoEF had also finalised the rules of NGT’s functioning. “If the stay order is vacated, six judicial benches will become operational,” Jaisingh had submitted before the court.

On court’s query on Thursday about the amount of time required to make NGT functional, Jaisingh sought two-week time saying, “The selection (of five judicial members and six experts) are likely to be approved by the Appointment Committee of Cabinet (ACC).” The National Green Tribunal was established on October 18, 2010 with retired Supreme Court judge Justice L S Panta as its chairperson. The tribunal was supposed to have circuit benches across the country but no other member was appointed apart from its chairman. After Australia and New Zealand, India is the third country to have such an institution.

National Green Tribunal (NGT)

The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.

The Tribunal’s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal is mandated to make and endeavour for disposal of applications or appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other 4 place of sitting of the Tribunal.

THE RELEVANT ACT AND NOTIFICATIONS ISSUED ARE AS UNDER:-

Stamp out khap panchayats: court

J. Venkatesan in THE HINDU

Casteism is one of the main causes holding up the country’s progress

Calling a person by caste name, if used with intent to insult, is an offence under SC/ST Act

Society regarding a section of its own countrymen as inferior is simply unacceptable


New Delhi: While deprecating the caste system in the country, the Supreme Court has declared illegal ‘khap panchayats’ which often decree or encourage honour killings or other institutionalised atrocities against boys and girls of different castes and religions who wish to get married or have married.

“This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal,” a Bench of Justices Markandey Katju and Gyan Sudha Misra said on Tuesday.

Sentence upheld

The Bench upheld the sentence of two-year imprisonment, including six months’ imprisonment under the SC/ST (Prevention of Atrocities) Act, 1989, awarded by a trial court to Arumugam Servai, who called a member of a Scheduled Caste community by his caste name, ‘Pallan‘. It dismissed his appeal against a Madras High Court judgment.

Writing the judgment, Justice Katju said: “The word ‘Pallan’ no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone. Even calling a person ‘Pallan,’ if used with intent to insult a member of the Scheduled Caste, is, in our opinion an offence under the SC/ST PoA Act.”

Jefferson’s ringing words

The court quoted Thomas Jefferson in the American Declaration of Independence, 1776 saying “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator by certain inalienable rights that among these are life, liberty, and the pursuit of happiness.”

The Bench said: “Over two centuries have passed since Thomas Jefferson wrote those memorable words, which are still ringing in history, but a large section of Indian society still regards a section of its own countrymen as inferior. This mental attitude is simply unacceptable in the modern age, and it is one of the main causes holding up the country’s progress.”

Two-tumbler system

The Bench also expressed its anguish over the two-tumbler system prevalent in many parts of Tamil Nadu. “This system is that in many tea shops and restaurants there are separate tumblers for serving tea or other drinks to Scheduled Caste persons and non-Scheduled Caste persons. In our opinion, this is highly objectionable, and is an offence under the SC/ST Act, and hence those practising it must be criminally proceeded against and given harsh punishment if found guilty. All administrative and police officers will be accountable and departmentally proceeded against if, despite having knowledge of any such practice in the area under their jurisdiction, they do not launch criminal proceedings against the culprits.”

Condemning honour killings and khap panchayats, the Bench directed the administrative and police officials to take strong measures to prevent such atrocious acts. “If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government concerned is directed to immediately suspend the District Magistrate/Collector and the SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not prevent the incident if it has not already occurred but they have knowledge of it in advance, or if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as, in our opinion, they will be deemed directly or indirectly accountable in this connection.”

The Bench directed that a copy of this judgment be sent to all Chief Secretaries, Home Secretaries and Directors-General of Police in all States and Union Territories, and circulated to all officers up to the level of District Magistrates and SSP/SP for strict compliance. A copy would also be sent to the Registrars-General/Registrars of all High Courts who would circulate it to all judges.