SH Kapadia: Pilgrim of Justice

CHIEF JUSTICE OF INDIA SH KAPADIA

BY DINESH NARYAN-  PUBLISHED IN FORBES INDIA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Judicial appointments & disappointments

JUSTICE V K KRISHNA IYER IN THE HINDU

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

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

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

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

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

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

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

Ultimate authority

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

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

Need for clarity

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

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

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

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

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

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

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

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

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

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

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

Supreme Court of India

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

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

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

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

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

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

Constitutional and statutory provisions :

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

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

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

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

Decisions of this Court :

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

Disturbing trends in judicial activism

JUDICIALREVIEW

JUDICIALREVIEW

T R ANDHYARUJINA IN THE HINDU

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

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

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

For basic rights

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

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

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

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

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

The new intervention

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

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

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

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

Military operation

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

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

Other examples

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

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

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

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