Justice Ranjan Gogoi delivers the third Ramnath Goenka Memorial Lecture — The Vision of Justice

PUBLISHED IN THE INDIAN EXPRESS

Full text of Justice Ranjan Gogoi’s speech at RNG Memorial Lecture:

I express my most heartfelt gratitude to The Express Group for extending this opportunity to me to deliver the lecture which has been organised in the memory of a man who was an institution in his own right: Ramnath Goenka ji.

While unlike some of you present here, I had not had the occasion to ever meet him, but, fortunately I have not been untouched by his proud legacy. Which gleams through that what he had founded as an answer to Gandhi ji’s call to start a swadeshi newspaper. Living in the realm of the Raj, it needed an iron-will and iron man and we found it in a young Ramnath ji. His legacy also gleams through the rich jurisprudence on the Freedom of the Press that he was instrumental in moulding, and which, by virtue of my Office, I work every day. It needed a committed and a cause-driven litigant – a rarity which it is nowadays – and we found it, yet again, in Ramnath ji. During the dark days of the Emergency, he stood as an unwavering gatekeeper of those fundamental liberties that we hold so dear today and that is his legacy too.

PART 1:

Today, after all these years, some remember him as the ‘Warrior of the Fourth Estate’ 1 , some remember him as a “dogged, unyielding adversary” 2 , some remember him as an “iconoclast”, some as a “magnificent rebel”. He was, at times unapologetic, at times uninhibited, at times even contradictory, but forever fierce, forever feisty, and forever fearless. His entire life trajectory from Darbhanga to Madras to Bombay; from the Constituent Assembly to the Newsroom to the Courtrooms, is a test case of its own kind that we, perhaps, need to use more often in our lives, in our institutions. Not too long back, I had read an interesting news article talking about the surprising surge – which is not so surprising, all things considered – in the sale of George Orwell’s 1984 in the United States. That piqued my interest in revisiting the classic. And, for some reason, I want to recollect a thought from it today. “Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.”

Abhishek Manu Singhvi of the Congress party along with former finance minister P Chidambaram at the third Ramnath Goenka Memorial Lecture in New Delhi. (Express Photo by Abhinav Saha)

If I had to put it very simply, for me, this is what Ramnath ji stood for. The freedom to say that two plus two make four. And, that is how I remember him as. Someone who could call Spade a Spade. Someone who could speak truth to power. Even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others. Is it a matter of perspective? I do not know. And, I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values? Is that extraordinary phenomena losing his relevance today, after all these years? Why I have chosen the topic for this discourse merits a context too. And, this is the context. These are some sore questions, but too significant to get lost in the everydayness. And, when it is so, what other better tribute can there be to a visionary who embodied in so many ways the spirit of our Constitution, than to spend a thought. To spend a thought over how far we have come to achieve the vision that he had seen as someone who helped free the country in one era, and helped it become a meaningful Democracy in another.

PART 2:

I will use a few minutes to put across my proposition as to what I intend to say when I talk about the “Vision of Justice”. I will borrow from the Chief Editor Shri. Raj Kamal Jha himself, because it offers a very fine perspective. Very powerfully and thoughtfully and rightly, he said of Ramnath ji in one his letters to me, that, “fierce independence” and “enduring sense of inquiry without fear or favour” were the two values that Ramnath ji believed formed the “bedrock of Justice”. It is absolutely incontestable that they do and, for convenience, let me call them the Bedrock Principles. But, if I were to look at it anatomically, while these do indeed form the bedrock of Justice, what is the Form/Body of the ideal called Justice which rests on this bedrock? The Bedrock Principles have been the talk of the town lately considering how the entire thinktank is so keenly focused on it. And I am not suggesting that it ought not to be. It ought to be done and it is being done. I cannot recall the last time, the Judicial wing of the State made so much news. On a lighter note, let us recall, Hamilton (the American Founding Father) who had suggested that the Judiciary was the least dangerous branch of the State’s three branches – and I will refer to him again during the course of my address – but, were he to be here today, I wonder if he would have felt the same way. More so, in the light of the IE Top 100 Most Powerful Indians which included several names from the judiciary. But, the fact of the matter is that if we have to take stock of how we have fared – and about seven decades later since we ventured into becoming a Constitutional Order, this appears to be an opportune time to do so – we might as well do it comprehensively. And, by comprehensively what I mean is that we must evaluate both the Bedrock Principles and the Form Principles because the Vision of Justice, the way I understand it, is a compound of both. Clearly, they are not unconnected. And over the course of next about half an hour, I will attempt to touch upon both. I will begin with the Form Principles, and bear with me, in order to drive home my point, I may have to get somewhat academic.

From (L-R): Hrishikesh Roy, Chief Justice, Kerala High Court, Deepak Gupta, Judge, Supreme Court, N V Ramanna, Judge, Supreme Court, Madan B Lokur, Judge, Supreme Court at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha) 

You will agree, that in the backdrop of a bleeding mega partition, deeply entrenched inequities, perpetuating injustices, our Constitution ushered us into believing in a grand promise of transformation on a scale that was beyond reformatory. It was, in all its full glory, a revolution in all aspects of life – social, economic, political. In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. The State would be religion-neutral, the citizens equal and together. Coming to think of it, it was just as pretentious as it was unpretentious an idea. But be that as it may, public institutions (one of them being the Judiciary) were inherited, they were tweaked where need was felt, to give life to this prodigious architecture of Justice. And, here, I would like to clarify that by justice, I am not implying only the juridical connotation of the word which is the administration of justice by the courts of law – although it is just as imperative – but justice is something that is an overarching principle, an underlying fundamental, the spirit, an order so to say. Which is why I say “prodigious”.

PART 3:

Because, it was a confluence of very many philosophies – [1] the Aristotelian, for instance, which suggests that the very essence of the State is justice which according to the philosopher was a social virtue; good of others; equality and fairness. When we peruse the Preamble to the Constitution- our vision document – is it not that this ideology is enshrined in the words “Equality of status and opportunity”? [2] Or, the Utilitarian philosophy of John Stuart Mill whose view was that justice was the greatest good to the greatest numbers. In the Preamble, is this not enshrined in the principles of “Socialism”, and “Equality” yet again? [3] Or, the relatively more modern one: the Rawlsian perspective which is that justice as fairness is the most egalitarian and also the most plausible concept of liberalism. In the Preamble, is this not reflected in the words “Liberty of thought, expression, belief”. So, the Preamble, if you deconstruct it precept-wise, is the very embodiment of these ideas. Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few. They are not isolated silos because their undying endeavour is to establish one discipline – of overall justice, of an inclusive society. And, this is exactly what I meant by the Form Principles of Justice as an ideal. As a composite unit called Justice, these had been intended to be achieved by the Legislature, the Executive and the Judiciary.

Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few — Justice Gogoi in his address. (Express Photo by Tashi Tobgyal)

Now, it will make for an incredibly interesting and if I may add overwhelmingly contentious tale to tell as to how the Executive and the Legislature have performed on this front. But the scope of my discourse will be limited to the judiciary’s endeavour in this regard. A few months back, I had the occasion to deliver the Justice P.D. Desai Memorial Lecture, at Ahmedabad. And, there I had proposed that attaining Constitutional Idealism was not like chasing a rainbow and the Supreme Court, through its pronouncements, had been reflecting it. It would not be a display of the pessimism of the intellect today, if I were to say that while, indeed, attaining Constitutional Idealism (= Vision of Justice) is not like chasing a rainbow, but, it is so only in the courtrooms. Perhaps, because fields are where the rainbows are (“fields” being the operative word). The point being that the way nation is built and the way this grand Vision of Justice is attained in the confines of the courts through judicial pronouncements and the way they are built on the ground are two very disparate realities. Agreed, the aspirational aspect of the Constitution and the operational aspect of the Constitution will always be two different notions. The aspirational aspect is high idealism of a kind that is almost moralistic and preachy. The operational aspect has to do with the very strange realities of the ground, almost defeating. But then even if we may be slow to move to bridge the gap between the two, which itself is not an acceptable compromise either, but we must, at the least, not become retrograde.

Justice Ranjan Gogoi: The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. (Express Photo by Tashi Tobgyal)

Take for example the 2015’s ruling in Shreya Singhal v. Union of India 3 (2015). It is a celebrated judgment, where the Supreme Court held that the public’s right to know was directly affected by Section 66A. Interestingly, while doing so, the Court was certainly inspired by, amongst other rulings, Romesh Thappar v. State of Madras 4 (1950); Brij Bhushan v. State of Delhi 5 (1950); Bennett Coleman & Co. v. Union of India 6 (1973). If you would recall, these were perhaps some of the earliest pronouncements protecting an Independent Indian’s Speech and Expression and were delivered in the light of the rights of the Press, which verdicts themselves had endorsed that a democracy was a marketplace of ideas where the people had a right to know; that prior restraints were anathematic to a democracy and that the freedom of speech and of the press is the Ark of the Covenant of Democracy. Shreya Singhal took this legacy ahead as it improved upon the jurisprudence on the independence of the Press to attain and promote the Constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom. Not once, but multiple times. But has it translated into reality? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves. On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis. On the 19 th June, The Indian Express had published a very insightful article (selected from The Economist) titled as ‘How Democracy Dies”.

From (L-R): Acting Chief Justice of Delhi High Court Justice Gita Mittal, Former Law Minister Ashwani Kumar, CPI leader D Raja and jurist Soli Sorabjee at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha)

It said, at one place, that, “…independent judges and noisy journalists are democracy’s first line of defence…Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.” I agree but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges. While Shreya Singhal was significant in its own right, NALSA v. Union of India 7 breathed new life into the Equality principle. The Court understood that our Founding Fathers’ vision about fundamental right against sex discrimination was to prevent differential treatment as a result of one’s not conforming to generalizations. The judgment made a momentous foray into the fountain-head of dynamism. And, I will get back to it but before I do that, I must touch upon a very fascinating judgment of 1986 vintage called Bijoe Emmanuel v. State of Kerala 8 . This was a case where three Jehovah’s Witnesses had refused to sing the National Anthem (as their tenets dictated so) when it was being sung in their school. They did stand up though. Nevertheless, they were expelled from the school. When the case found its way to the Supreme Court, while holding that the expulsion would be in violation of their Fundamental Right to ‘freedom of conscience’, the Court observed that “the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.”

Former Chief Justice of India Rajendra Mal Lodha (Express Photo by Abhinav Saha)

The court also felt the need to add a thought. And, I feel compelled to quote it. It is the penultimate line of the verdict and it says – “our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.” Recently. in Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu 9 , the Court held that even in the matters of religious beliefs, constitutional legitimacy cannot be foregone and following Justice B.K. Mukherjea in Shirur Mutt case (of 1954), went on to hold that it is not the State or the religious Indian but the Constitutional Court which decides on what constitutes essential practices of any particular religion.

Some of you could be wondering about how these judgments are even related. They are not. But, they are, at the same time. Dissimilarity is that the first one originates in a very intimate, private sphere of life and the other two originate in what everybody seems to want to have a say in – the matters of faith. But, it is the similarity that should be the take away. The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. As an Israeli judge Aharon Barak points out, it is not the transient spirits of time but the fundamental values that should be the guiding voice 10.

In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. (Express Photo by Tashi Tobgyal)

In his last address to the Constituent Assembly, Dr. Ambedkar had said that we must not only be a political democracy but a social democracy as the former cannot last unless lies at the base of it the former. And, social democracy, he defined, as a way of life which recognises liberty, equality, fraternity as one principle. I wouldn’t want to wade into knowing if we are a successful political democracy, but, I do, earnestly believe, that we are a social democracy, in all aspects. But again, largely jurisprudentially. And the disparity is there because the two Indias – both just as perceptible – are at conflict. There is an India that believes that it is the New Order and there is an India that lives below a ridiculously drawn Poverty Line on daily wages in night shelters with no access to education or healthcare, let alone access to the Courts of Law. The ambivalence is intriguing. And, this is exactly what I call as getting lost in translation. One India in the aforementioned perspective is the Vision and to know how far we have succeeded in attaining this Vision of Justice is really a matter of perception. But nevertheless, there is a graphic disparity right there and removing this disparity will be the mission for the Indian Judiciary in the times to come. And if I may add, for that to happen, it is going to require a “constitutional moment” of its own kind in the life of this institution, which I believe has been long overdue.

“I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated,” says Justice Gogoi. (Express Photo by Abhinav Saha)

The Constitutional history with reference to this institution as a whole (and, especially the Supreme Court) would show that its own role has constantly evolved in the light of the socio-political context. If 1970-1980 was the decade where it expounded the Basic Structure Doctrine, in 1980s, it constantly expanded the scope of Article 21 and by 1990s, it became somewhat of a “Good Governance Court” by innovatively interpreting Constitutional provisions to address the inadequacies consequent upon executive and legislative inactivity. In the first fifty years since our independence, the court has created a very sound jurisprudence which we continue to reap from. It is the inertia really that has kept us going till now. But the way things stand today, court processes are a trial even before the trial has begun. While I cannot say if it is a collective failure on our part but for a nation governed by the rule of law, is it not a matter of concern that to this extent at least, we are defying the idea of inclusiveness? Not a reform but a revolution is what it needs, to be able to meet the challenges on the ground and to keep this institution serviceable for a common man and relevant for the nation. For the effectiveness of the judgments to show, the justice dispensation system has to be made more result oriented i.e. to say, more focused on enforcement. I understand what Mr. Arun Shourie 11 suggests when he wonders if the judiciary is not being an “accessory to the resulting deterioration”, when it in its hopefulness and optimism, doesn’t go after its mandate till its implementation. I find it difficult to agree wholeheartedly. But I will certainly say that the judiciary must certainly be more pro-active, more on the front foot. This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitutional morality (= separation of powers) again. I will even go ahead to say that the institution, at all levels, needs to become more dynamic in the matters of interpretation of laws. And, this is what I mean to say by a constitutional moment of its own kind. However, it is going to be a tall order both at the micro level and the macro level because both come with their unique sets of challenges.

Executive Director of The Express Group Anant Goenka (left) presents a sketch to Justice Ranjan Gogoi at the third RNG Lecture in New Delhi on Thursday. (Express Photo by Neeraj Priyadarshi)

By micro level, what I mean is administration of justice on day-to-day basis. Here, the so-called “inefficiency” and “slow processes” have been historical challenges. I will put it very simply. The judiciary today is not a poor workman who blames his tools, but it is a workman with no tools. I am not going to saddle you with the figures that we keep consuming every day on pendency, arrears and judges’ strength but in the light of what a French author had once said, “Everything has been said already, but as no one listens, we must begin again.” 12 , I will only ask and request those at the helm to finally listen so that we must not have to begin again. In addition to that, I also feel that there is a pressing need to explore the endless limits of legal services mechanism. Legal awareness and legal empowerment of the marginalised in this vastly unequal society of ours, have to be a made an observable reality. Let me give you one instance which is glaring insofar as personal liberty is concerned. 67% of the prison population are undertrials, mostly belonging to the underprivileged classes and 47% of them are between the age of 18-30 years. Compare this with the U.K. where it is about 7% and the U.S. which is acknowledged to have a high rate of incarceration where the percentage is 22.7%. The period of about one year that a majority of the undertrials have been in custody would hardly redeem the situation. Will it be wrong to suggest that a fair share of our demographic dividend is being unjustifiably lodged in the jails and mostly for petty or less serious offences?

The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. (Express Photo by Neeraj Priyadarshi)

At the macro level, the judiciary as an institution is being seen as a course corrector, a leveller, a democratiser of sorts. And, since it is too well known that this country is on the cusp of an evolution, naturally it will have implications for this institution just as much. I would like you to recall that I had mentioned about Hamilton in the beginning of the discourse. While contemplating the U.S. Constitution 13 , he had said that the judiciary is the weakest of three branches because it neither has force of the Executive nor the will of the Legislature, but only judgment. This, and which I agree with absolutely, he said, was the “simple view of the matter”. The complex view is this. And which he was wise enough to warn about over two centuries ago. He had said that while the civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches.

Punjab and Haryana High Court Judge Justice Surya Kant (Express Photo by Abhinav Saha)

I would like to believe, this is why, Ramnath ji had also said that “fierce independence” is indeed the bedrock of justice. But I would like to add that “independence” must always be responsible with due regard to established Constitutional values. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may. And it has. The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution. And if introspection is where we have to begin, we might as well begin there. Perhaps, we can hope and endeavour that in the future, it is not our finality, but really our infallibility that should define us. It is my imagination of an ideal world and I am aware of what Carl Jung had said of it. He had had said that, “Every form of addiction is bad, no matter whether the narcotic be alcohol, morphine or idealism.” I don’t know how true his view holds on other counts, but as far as idealism is concerned, I would say, it should be pursued like an axiom. Thank you very much.

Jai Hind!

First, insulate the judge from politics

BY RAMJETHMALANI PUBLISHED IN THE INDIAN EXPRESSjudge

The thesis of ‘committed’ judiciary has been abandoned, but its practice continues unabated. That is the real problem, writes RAM JETHMALANI.

A judge is the guardian of the small man and his bundle of rights, which enable him to realise his fullest material, moral and spiritual potential, and expand to the utmost frontiers of his body, mind and soul. No judge must aspire to harmony with the legislature and executive. Every judge must brace himself for a life of tension with both in the intelligent and stout defence of his ward, who needs constant protection against the insolence of unfeeling officials, the venality of politicians and the misdeeds of wicked neighbours and fellow citizens. Every court is essentially a court of wards; the Supreme Court has the entire citizenry as its ward. Our judges need not be sensitive to the oft-mounted attack that they are not elected and are, therefore, unaccountable and undemocratic.

This role of the judge makes one think about elected judges. But the system of elected judges has been tried elsewhere and I believe that it has produced jokes. The most instructive joke that you will find is that in a certain US state, the Democratic Party found a judge paralysed from the waist downwards and invariably, in elections, he won the sympathy vote. He triumphed in four successive elections but before the fifth, a Republican Party official said to his superior, “Sir, we have found a solution to our problem.” He asked, “What is it?” The answer: “Sir, this time we have found a judge who is paralysed from the waist upwards.” It will not work in India anyway.

Economics may have dominated the world most of the time and probably does dominate in some sense even now. But today, politics has overtaken economics in its influence. In the past few decades, all institutions, including the judiciary and of course the Bar, have struggled with the temptations of politics. Judges, like other mortals, are attracted to politics, particularly aspiring ones who consider favours from a ruling party to be stepping stones for upward mobility in the field. Usually, but not always, judges do often violate their oath of administering justice without fear or favour. Favours done have to be returned, feel some. We have therefore to evolve an effective mechanism of insulating judges against politics and involvement in political machinations of the kind that have disgraced some sections in the past not only in this country, but also elsewhere.
Politicians as a class and the executive in power must therefore have no voice in the appointment of judges. The executive is the biggest litigant in cases of citizen complaints of the oft-corrupt misuse of executive powers. Even a good judge appointed by a corrupt minister will not command public confidence. The second judges case, the origin of the present collegium system, was a correct decision, and the current system is vastly superior to the one it supplemented. It was the one that produced the tellingly sarcastic comment, “It has created two kinds of judges — those who know the law and those who know the law minister.”

South Africa, in its new constitution, adopted the model of a judicial commission as the method of selection, which has been operational since 1996. The law minister is formally consulted and he makes his comments upon the appointees or recommendees of the judiciary. The comments of the law minister are considered with respect and attention, but the final word lies with the commission. I am committed to this mechanism as our final solution. I must hasten to explain why.

I agree with the weighty opinion of my erudite friend, senior counsel Anil Divan, in his recent article in The Hindu: “The present secretive process followed by the collegium excludes public scrutiny, violates the citizen’s right to know and leads to diminishing respect for the judiciary.” Some bad appointments produced by this system are also notorious.
While corruption continues to grow like a galloping cancer in every branch of life, the judges seem to reciprocate by producing a strange jurisprudence that only protects the corrupt. The law of contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the common man, not so inhibited, produces an impressive volume of popular corruption folklore.

The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished lawyer and politician, claimed that judicial appointments could not be made without reference to the social philosophy of the judges. The judge, being an important decision-maker, makes decisions that are bound to affect the lives of the people, and his decisions are influenced by his social philosophy. Therefore, independent India should have judges who are “committed” not only to the social philosophy of the Constitution, but also to that of the government. This was controversial. However, Indira Gandhi’s government implemented his views during the Emergency.

Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated. While judges associated with the ruling establishment are invariably appointed, those having any form of association with opposition parties are scrupulously avoided. How successive chief justices, who are supposed to be totally judicial even in the discharge of their administrative function, habitually enter into convenient compromises escapes comprehension. The inevitable answer is the creation of a national judicial commission in which the judiciary, government, opposition, the Bar and academic community have an equal voice. Judges should hold office only during the pleasure of the commission. It should have the power to appoint, transfer and dismiss — of course, in accordance with procedure established by law, or what is also known as due process. The Lokpal may well be a useful addition to the list of participants.

The 79th report of the Law Commission suggested ways to plug loopholes in the existing system of appointment of Supreme Court judges. No one should be appointed a judge of the Supreme Court unless, for a period of not less than seven years, he has snapped all affiliations with political parties and unless, during the preceding seven years, he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice.

The practising Bar is the constituency of a judge. If he cannot retain its confidence, he must gracefully quit office. It is just not true that only weak and obliging judges are popular with the Bar. Members of the Bar know the black sheep on the bench. No wonder, the American Bar Association can, by its adverse criticism, make the mighty president of the US withdraw his nominees for judicial office. A lord chancellor of England admitted that if he made an unworthy appointment, he could not possibly look into the eyes of the lawyers at Bar dinners.

The writer, a lawyer and Rajya Sabha MP from Rajasthan, is a former Union law minister (June 1999-July 2000)

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)

Lessons in judicial restraint

Supreme Court of India

JUSTICE MARKANDEY KATJU IN THE HINDU

In a democracy, the remedy for a malfunctioning legislature and executive must come from the people, not the judiciary

It is evident that the Pakistan Supreme Court has embarked on a perilous path of confrontation with the political authorities, which can only have disastrous consequences for the country. Recently its Chief Justice said that the Constitution, not Parliament, is supreme. This is undoubtedly settled law since the historical decision of the U.S. Supreme Court in Marbury vs. Madison (1803).

The grave problem, however, that courts are often faced with is this: on the one hand, the Constitution is the supreme law of the land and, on the other hand, in the garb of interpreting the Constitution, the court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.

The solution was provided in the classical essay “The Origin and Scope of the American Doctrine of Constitutional Law” published in 1893 in the Harvard Law Review by James Bradley Thayer, Professor of Law at Harvard University. It elaborately discusses the doctrine of judicial restraint. Justices Holmes, Brandeis, and Frankfurter of the U.S. Supreme Court were followers of Prof. Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law,” and in a lecture at the Harvard Law School said: “If I were to name one piece of writing on American Constitutional Law, I would pick Thayer’s once famous essay, because it is a great guide for judges, and therefore the great guide for understanding by non-judges of what the place of the judiciary is in relation to constitutional questions.”

The court certainly has power to decide constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self restraint.

Separation of powers

The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary, must respect each other, and must not ordinarily encroach into each other’s domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically elected body, which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.

Apart from the above, as pointed out by Prof. Thayer, judicial over-activism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problems in the ordinary way, and correcting their own errors”.

In Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899 (paragraphs 17 to 19), the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. — While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.”

Judicial restraint is particularly important for the Supreme Court for two reasons:

(1) Of the three organs of the state, only one, the judiciary, is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.

(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.

Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or the executive then take over judicial functions? If the legislature and the executive do not perform their functions properly, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because the judiciary has neither the expertise nor the resources to perform these functions.

In this connection I may quote from an article by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978): “If, then, the Thayer tradition of judicial modesty is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:

“First, how legitimate is government by Judges? Is anything beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called ‘that wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?’

“Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused?

“Third, can nine men [the Supreme Court Judges] master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.

“Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.”

In Marbury vs. Madison (1803), Chief Justice Marshal, while avoiding confrontation with the government of President Jefferson, upheld the supremacy of the Constitution. Another example is the very recent judgment of U.S. Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.

In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed: “Judges must know their limits and not try to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each of the organs of the state must have respect for the others and must not encroach into each other’s domain.” A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi.

New Deal legislation

A reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive court kept striking down this legislation, President Roosevelt proposed to pack the court with six of his nominees. The threat was enough, and it was not necessary to carry it out. In 1937, the court changed its confrontationist attitude and started upholding the legislation (see West Coast Hotel Vs. Parrish). “Economic due process” met with a sudden demise.

The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.

It is not my opinion that a judge should never be activist, but such activism should be done only in exceptional and rare cases, and ordinarily judges should exercise self restraint.

In Dennis vs. U.S. (1950), Justice Frankfurter observed: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardised when Courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures”.

The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.

(Justice Markandey Katju is chairman of the Press Council of India.)

A case for judicial lockjaw

JUDICIAL LOCKJAW
JUDICIAL LOCKJAW

ARGHYA SENGUPTA IN THE HINDU

Judgments should speak for themselves; when judges justify them in public, they run the risk of sounding like politicians.

Justice Felix Frankfurter, one of America’s most eloquent Supreme Court judges, speaking at an American Law Institute function in 1948, aptly described the infirmity of being unable to speak about one’s judgments publicly, an attendant facet of being a Supreme Court judge, as “judicial lockjaw.” For watchers of the Indian higher judiciary, which has adhered to this principle since its inception, the last fortnight has brought forth a surprising development in this regard. Justice Asok Kumar Ganguly, an erudite judge of the Supreme Court of India, who retired recently, has, since leaving office, actively engaged with the media, first in print and then electronically. While a retired judge writing and speaking extra-judicially per se on matters of public importance is a fairly common and welcome phenomenon, his participation in a feisty debate in a leading newspaper on the merits of one of his own judgments, and then agreeing to take part in a television interview whose questions focused solely on two of his controversial judgments, is uncommon. As well as raising questions of individual propriety, it contains possible portents of the slowly changing nature of the Indian higher judiciary.

Justice Ganguly’s rejoinder

Three days after his retirement, Justice Ganguly issued a startling written rejoinder to the criticism by former Lok Sabha Speaker Somnath Chatterjee of the 2G judgment, which he had handed down a few days previously. Not only did he defend his judgment, first by assuring Mr. Chatterjee that “the judgment was not delivered either out of temptation or out of any desire to appropriate executive powers” but also positively asserted that “[t]he judgment was rendered in clear discharge of duty by the Court” (The Telegraph, 6 February, 2012). His statements, especially to the extent they clarify and defend his judgment, raise deep questions regarding the proper role of judges in post-retirement public life. This is especially so in Justice Ganguly’s case, as it was followed up with an interview to a private television channel where, despite steadfastly refusing to comment on the merits of the 2G judgment or the judgment relating to sanctions for prosecution per se, his statements on the subject had the effect of giving the interviewer and the viewing public sufficient sound bytes on how the judgments ought to be interpreted. To cite a single instance — in response to a question as to whether the timeline set by the Court for the government to consider sanction requests against public servants should apply to the Chief Justice of India when permission is sought for a FIR to be filed against a judge, though he refused to give a direct answer, he suggested that the recommendations made in the judgment “should apply across the board.” To any reasonable viewer, this statement would certainly come across as a clarification on what the recommendations made in the judgment ought to mean.

It is not the legality of Justice Ganguly’s engagement with the media that is in issue here. Like any other citizen, he has a right to speak, and is free to exercise that right in whichever manner he desires, provided it is within the bounds of constitutional permissibility. But when a retired judge speaks, not in his capacity as an ordinary citizen but wearing the hat of a judge who was party to a particular judgment, as Justice Ganguly obviously did, the primary question is one of propriety. That the judge, after rendering judgment, becomes functus officio and the judgment of the Court speaks through itself, is a long established principle in the Indian judicial system. The rationale for the principle is salutary: that the decision of the Court when it is cited as a precedent in subsequent cases as a binding principle of law, ought to be interpreted on its own terms and not on the basis of any extra-judicial clarifications that may be issued subsequently. Of course, any academic discussion and criticism following the judgment may be relevant, but never involving the judge concerned himself, as that may have an unwarranted overriding influence on future interpretations of the decision. At the same time, the principle does not prohibit judges from writing their memoirs, which are often filled with delightful accounts of the unseen dynamics of a judicial decision, or commenting on the consequences of a case after a period of time or on a matter of significant national importance. However, coming so close on the heels of the judgments being delivered, Justice Ganguly’s statements in the media can neither count as an academic commentary nor be justified by a passage of time having elapsed. Propriety thus demanded that he thought better than articulating his views publicly in this manner.

Judge’s role in public

Equally importantly, Justice Ganguly’s actions point to a larger question as to what the role of a judge should be in public life. Unlike politicians or film stars who are public figures by virtue of their closeness to the people, judges are public figures precisely because they manage to keep their distance from the people. It is this detachment which allows judges to be immune from the passions of popular sentiment and political machinations, thereby facilitating the independence of the judiciary as an institution. Any engagement with the media by a judge in a judicial capacity, whether while holding office or post-retirement, fundamentally erodes the extent of this institutional detachment. Especially if the engagement primarily focuses on decisions given by judges, it runs the risk of turning judges into quasi-politicians, clarifying and justifying their judgments by direct appeals to the public, rather than simply allowing the reasons contained in the judgment to perform this justificatory function.

Comparative analysis

Indeed a comparative analysis across countries shows the links which can be drawn between extra-judicial utterances and the political savvy of judges. In England, where courts are largely apolitical, extra-judicial utterances are rare. Judges, except the Law Lords, were for a long period, conventionally governed by the Kilmuir Principles, key amongst which is the view that “[s]o long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable.” Though the Principles themselves are no longer strictly applicable, the tradition of extra-judicial silence continues. On the contrary, across the Atlantic, in the United States of America, whose Supreme Court is an overtly political institution, notwithstanding Justice Frankfurter‘s wise advocacy of restraint, judges have a long history of writing and speaking extra-judicially on their own judgments and on the Court itself — Justice Stewart wrote a letter to the Editor of the Wall Street Journal defending his majority opinion in a racial discrimination case; Justice Goldberg publicly defended the Court and its stance on judicial review and states’ rights in the New York Times; in fact even Chief Justice Marshall, back in the 19th Century, defended his landmark judgment, authoritatively laying down the nature of American federalism in McCulloch v. Maryland, albeit writing under a cleverly disguised pseudonym in the Philadelphia Union.

Sign of transformation

As this comparative experience demonstrates, the judicial propensity to engage directly with the public is clearly a symptom of a Court whose judges are keenly conscious of the immense political significance their decisions have. In this backdrop, Justice Ganguly’s comments, unwarranted as they may have been, perhaps provide an early sign of the subtle transformation of the Supreme Court of India into an overtly political institution, owning up and reacting to the immense political ramifications of its actions. Equally, they raise deep questions regarding the interaction between judges and the media, arguably two of the most powerful pillars in Indian democracy today. This is a complex, multi-dimensional issue that cannot be dealt with here. However it would suffice to say that the obtuse language used by judicial decisions, their unclear consequences and the difficulties faced by sections of the media in understanding the subtleties of legalese, all suggest that like several courts worldwide such as the Supreme Court of the United Kingdom and the European Court of Human Rights, the Indian Supreme Court too should issue official media summaries of important decisions. Not only will this facilitate wide comprehensibility of key judgments, but it will also ensure that judicial decisions are not wantonly misinterpreted. Most importantly, it will mean that judges, whether in office or speaking in their judicial capacity immediately post-retirement, will have an additional reason to remain lockjawed, allowing their judgment together with its officially authorised summary to do the talking.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and founder of the think tank The Pre-Legislative Briefing Service.)

SOURCE LINK : http://www.thehindu.com/opinion/lead/article2935696.ece?homepage=true

A case for judicial lockjaw

Welcome show of judicial muscle

Supreme Court of India

SHALINI SINGH IN THE HINDU

The 2G judgment goes beyond telecom, spoiling the party for corrupt politicians, bureaucrats and big business.

It is only after navigating through the anger of unrepentant telecom firms and the grief of stricken investors and employees facing an uncertain future that one encounters the real impact of the Supreme Court judgment cancelling 122 illegal telecom licences last week.

Its immediate, most obvious impact is a strong judicial attack on the opaque spectrum allocation process used by the government since 2001, first on a subscriber-linked criterion and later, on a first come, first served basis, which was exploited in 2008 in the worst possible manner by jailed ex-Telecom Minister A. Raja.

The uncertainties that follow will be confined to the medium term, culminating in the delivery of tangible justice — the reassignment of licences and spectrum at a market-determined price.

Reverberation in other sectors

The reverberations of the judgment actually extend far beyond telecom, crushing the subjective power of the government to issue licences and contracts in any sector like power, coal, minerals, mines, land, and even special economic zones (SEZ), that allocates scarce national resources. This effectively attacks the fountainhead of all large corruption linked to government contracts.

The first irrefutable principle of the judgment is on the issue of ownership and control of natural resources provided under Article 39(b) of the Constitution: “The ownership and control of natural resources of a community should be distributed so as to best sub-serve the common good but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection.” With the government dithering on such specific legislation, the judgment has become the de facto law in the matter.

Recognising that while the state is deemed to have a proprietary interest in natural resources, it must act as a guardian and trustee, the judgment affirms that the people are the designated owners of natural resources in any country.

Acknowledging the high economic value of natural resources, the judgment recognises that these national assets are scarce, finite, and susceptible to degradation in case of inefficient utilisation.

Highlighting the issue of “public trust,” the judgment quotes from several international judgments, including the famous American one, of Illinois Central R. Co. vs Illinois, and the ones in India such as M.C. Mehta vs Kamal Nath to make the point that: “Public interest doctrine enjoins upon the government to protect the resources for the enjoyment of the general public rather than permit its use for private ownership or commercial purposes.” At the heart of the public trust doctrine is the limits and obligations upon government agencies as administrators on behalf of all people, especially future generations.

Hits government stand

This shatters the government’s stand that the allocation of natural resources is its sole preserve, and such ‘policy’ decisions should not be open to public or legal scrutiny. Traditionally, courts have been reluctant to review ‘government policies’ as they are considered an exclusive prerogative of the executive and formed after considering expert opinion.

Invoking the doctrine of equality deals the hardest blow to the opaque allocation procedures for natural resources that are in use for award of Central and State government contracts. The judgment states that the doctrine of equality which emerges from the concept of justice and fairness must guide the state in determining the actual mechanism of distribution of natural resources. This has two aspects: first, it regulates the rights and obligations of the state vis-a-vis its people and demands that the people be granted equitable access to natural resources and/or its products, and that they be adequately compensated for the transfer of resources to the public domain. This considerably debilitates the government’s line in applying subjective criteria such as first come, first served or beauty parades when allocating natural resources in the future. Additionally, it requires the national exchequer to place a value on a natural resource before granting any party the privilege of using it.

The second part of the equality doctrine is explained as the need to regulate the rights and obligations of the state vis-a-vis private parties seeking to acquire/use resources and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly-placed parties. This specifically addresses legacy issues of changing the goalpost after the game has begun such as tampering with cut-off dates or altering the qualifying criteria after applications have been submitted or bids placed.

Overall, it ensures that every party has an equal chance of transparently acquiring the asset, based on the rational value that it believes can be derived from the acquisition. The judgment specifically tears apart the first come, first served system, firmly re-establishing auctions as a preferred option.

On auctions

Auctions can do much more than just raising revenue. They are quicker, more efficient and more economical than administrative allocation; ensure equitable access to natural resources; protect public trust; and protect equality as upheld in Article 14 of the Constitution. The telecom experience shows us that those who pay a market price base it on their expectation of revenue generation. Therefore, they are the first to rollout networks, best serving the objectives of tele-density, affordability and competition.

The judgment is unbending in its view that licences or natural resources given through devious and unconstitutional means cannot plead equities, investment or consumer interest even if they have not been a party to an unconstitutional and arbitrary allocation. Bidders with the slightest hint of ongoing mischief must now walk away, rather than participate. The fact that licences awarded illegally can be cancelled four years after they were allocated should send the fear of god in the minds of those who believe that investment and consumer interest will sway the courts once time has lapsed.

Simply put, the judgment gives judicial muscle to the message that from now on, offenders will be punished irrespective of political status, financial power and the time or money that may have been invested in an act that was illegal to begin with.

Striking a blow against corruption by empowering all those — non-governmental organisations, enlightened citizens and activists — fighting big corruption, this landmark judgment carries the potential of fast-tracking the pace of administrative reforms and governance in India in a manner not witnessed in the past.

shalini.s@thehindu.co.in 

SOURCE : http://www.thehindu.com/opinion/op-ed/article2875969.ece?homepage=true

Justice Ganguly, noted for frank and forthright views, retires

JUSTICE A K GANGULY
JUSTICE A K GANGULY

J VENKATESAN IN THE HINDU

He rendered landmark judgments in Supreme Court

Justice A.K. Ganguly retired on Thursday from the Supreme Court on attaining the age of superannuation. He was given a warm farewell by the members of the Bar and the Bench at a function organised by the Supreme Court Bar Association amid standing ovation from lawyers. Justice Ganguly was appointed Judge of the Supreme Court in December 2008. During his tenure spanning a little over three years, he rendered landmark judgments on various branches of law, in particular criminal jurisprudence, constitutional and human rights issues.

2G case

A bold and courageous judge, he was known for his frank and forthright views and comments, which became evident during the hearing of the 2G spectrum case since October 2010. He was part of the Bench with Justice G.S. Singhvi in the 2G case in which 122 licences were cancelled on Thursday.With a smiling face, he endeared himself to the members of the Bar and the Bench. He was the Chief Justice of Orissa and Madras High Courts, before being elevated as a Judge of the Supreme Court.Justice Ganguly was convinced enough to observe in a judgment that the Supreme Court had violated the fundamental rights of citizens during Emergency in 1975. And in an unprecedented move, he commuted to life imprisonment the death sentence, earlier upheld by it, of a man who murdered four members of a family.

Majority decision

A Bench of Justices Aftab Alam and Ganguly took the view that the majority decision of a five-member Constitution Bench upholding the suspension of fundamental rights during Emergency in the ADM Jabalpur vs Shivakant Shukla case (1976) was erroneous.Justice Ganguly, who wrote the judgment, said:

“There is no doubt that the majority judgment of this court in the ADM Jabalpur case violated the fundamental rights of a large number of people in this country. The instances of this court’s judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen. We can remind ourselves of the majority decision of the Constitution Bench of this court in Additional District Magistrate Jabalpur.

“The majority opinion was that in view of the Presidential order dated June 27, 1975 under Article 359 (1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention (MISA) on the ground that the order is illegal or malafide or not in compliance with the Act.”

Justice Ganguly, while quashing the allotment of land made to the former Indian cricket team captain, Sourav Ganguly, in Kolkata by the West Bengal government, said “We are sorry to hold that in making the impugned allotment in favour of the allottee, the State has failed to discharge its constitutional role. The said allotment was made by the government admittedly without verifying whether the allottee had surrendered the previous plot allotted to him. Such action of the government definitely smacks of arbitrariness and falls foul of Article 14.”

On Hindu law, he held that under the Hindu Marriage Act (HMA), illegitimate children would be entitled to all the rights in the property of their parents, both self-acquired and ancestral.Interpreting Section 16 (3) of the HMA, he said: “Such children are only entitled to the property of their parents and not of any other relation. The relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of Section 16 (3).”

Justice Ganguly made it clear that the President or the Governor exercising the power of pardon in granting remission of sentence to a convict could not encroach into the judicial domain and give a finding on the guilt of the convict. If such a power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order could not get the approval of law and in such cases, the judicial hand must be stretched to it.

Taking a serious view of the former Maharashtra Chief Minister Vilasrao Deshmukh, at present Union Minister for Science and Technology, interfering in a criminal investigation against a family of a Congress MLA, he imposed an exemplary cost of Rs. 10 lakh on the State government.

Coming to the rescue of hawkers, he held that they had a fundamental right to carry on with their business. He asked the Delhi government to enact law to regulate their trade keeping in mind the right of commuters to move freely and use the roads without any impediment.

On personal liberty, he said that in preventive detention cases, the representations received from the detenus must be disposed of expeditiously and every day’s delay must be properly explained and accounted for. “The representations should be very expeditiously considered and disposed of with a sense of urgency and without any avoidable delay.”

Source: http://www.thehindu.com/news/national/article2854684.ece

Government has no right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution

Supreme Court of India

Centre for Public Interest Litigation and others versus  Union of India and others  Writ Petition(Civil) 423 of 2010

At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural, form. A natural resource’s value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best sub-serve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State legislatures deal with specific natural resources, i.e., Forest, Air, Water, Costal Zones, etc.

The ownership regime relating to natural resources can also be ascertained from international conventions and customary international law, common law and national constitutions. In international law, it rests upon the concept of sovereignty and seeks to respect the principle of permanent sovereignty (of peoples and nations) over (their) natural resources as asserted in the 17th Session of the United Nations General Assemble and then affirmed as a customary international norm by the International Court of Justice in the case opposing the Democratic Republic of Congo to Uganda. Common Law recognizes States as having the authority to protect natural resources insofar as the resources are within the interests of the general public. The State is deemed to have a proprietary interest in natural resources and must act as guardian and trustee in relation to the same. Constitutions across the world focus on establishing natural resources as owned by, and for the benefit of, the country. In most instances where constitutions specifically address ownership of natural resources, the Sovereign State, or, as it is more commonly expressed, ‘the people’, is designated as the owner of the natural resource.

Spectrum has been internationally accepted as a scarce, finite and renewable natural resource which is susceptible to degradation in case of inefficient utilisation. It has a high economic value in the light of the demand for it on account of the tremendous growth in the telecom sector. Although it does not belong to a particular State, right of use has been granted to States as per international norms.

 In India, the Courts have given an expansive interpretation to the concept of natural resources and have from time to time issued directions, by relying upon the provisions contained in Articles 38, 39, 48, 48A and 51A(g), for protection and proper allocation/distribution of natural resources and have repeatedly insisted on compliance of the constitutional principles in the process of distribution, transfer and alienation to private persons. The doctrine of public trust, which was evolved in Illinois Central Railroad Co. v. People of the State of Illinois 146 U.S. 387 (1892), has been held by this Court to be a part of the Indian jurisprudence in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and has been applied in Jamshed Hormusji Wadia v. Board of Trustee, Port of Mumbai (2002) 3 SCC 214, Intellectuals Forum, Tirupathi v. State of A.P. (2006) 3 SCC 549 and Fomento Resorts and Hotels Limited v. Minguel Martins (2009) 3 SCC 571. In Jamshed Hormusji Wadia’s case, this Court held that the State’s actions and the actions of its agencies/instrumentalities must be for the public good, achieving the objects for which they exist and should not be arbitrary or capricious. In the field of contracts, the State and its instrumentalities should design their activities in a manner which would ensure competition and not discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods. In Fomento Resorts and Hotels Limited case, the Court referred to the article of Prof. Joseph L. Sax and made the following observations:

The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.

 The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets.Professor Joseph L. Sax in his classic article, “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.

The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people’s rights and the people’s long-term interest in that property or resource, including down slope lands, waters and resources.”

In Secretary, Ministry of Information & Broadcasting, Govt. of India v.Cricket Assn. of Bengal, (1995) 2 SCC 161, the Court was dealing with the right of organizers of an event, such as a sport tournament, to its live audiovisual broadcast, universally, through an agency of their choice, national or foreign. In paragraph 78, the Court described the airwaves/frequencies as public property in the following words:“There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies.”

In Reliance Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC 1, P. Sathasivam J., with whom Balakrishnan, C.J., agreed, made the following observations:  “It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.” Learned Judge then referred to the judgments, In re Special Reference No. 1 of 2001 (2004) 4 SCC 489, M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and observed:

“This doctrine is part of Indian law and finds application in the present case as well. It is thus the duty of the Government to provide complete protection to the natural resources as a trustee of the people at large.”

 The Court also held that natural resources are vested with the Government as a matter of trust in the name of the people of India, thus it is the solemn duty of the State to protect the national interest and natural resources must always be used in the interests of the country and not private interests.

 As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly placed private parties.

In Akhil Bharatiya Upbhokta Congress v. State of M.P. (2011) 5 SCC 29, this Court examined the legality of the action taken by the Government of Madhya Pradesh to allot 20 acres land to an institute established in the name of Kushabhau Thakre on the basis of an application made by the Trust. One of the grounds on which the appellant challenged the allotment of land was that the State Government had not adopted any rational method consistent with the doctrine of equality. The High Court negatived the appellant’s challenge.

 Before this Court, learned senior counsel appearing for the State relied upon the judgments in Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3 SCC 635, State of U.P. v. Choudhary Rambeer Singh (2008) 5 SCC 550, State of Orissa v. Gopinath Dash (2005) 13 SCC 495 and Meerut Development Authority v. Association of Management Studies (2009) 6 SCC 171 and argued that the Court cannot exercise the power of judicial review to nullify the policy framed by the State Government to allot Nazul land without advertisement.

This Court rejected the argument, referred to the judgments in Ramanna Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489, S.G. Jaisinghani v. Union of India AIR 1967 SC 1427, Kasturilal Lakshmi Reddy v. State of J & K (1980) 4 SCC 1, Common Cause v. Union of India (1996) 6 SCC 530, Shrilekha Vidyarthy v. State of U.P. (1991) 1 SCC 212, LIC v. Consumer Education and Research Centre (1995) 5 SCC 482, New India Public School v. HUDA (1996) 5 SCC 510 and held:

 “What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.”

In Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295, the Court referred to some of the precedents and laid down the following propositions:

“State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.”

In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.

 Can the Courts interfere in Policy decisions of the Government

In majority of judgments relied upon by learned Attorney General and learned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters. There cannot be any quarrel with the proposition that the Court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters. When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights and, at the same time, are bound to perform the duties enumerated in Article 51A. Reference in this connection can usefully be made to the judgment of the three Judge Bench headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India (2011) 4 SCC 1.

Before concluding, we consider it imperative to observe that but for the vigilance of some enlightened citizens who held important constitutional and other positions and discharged their duties in larger public interest and Non Governmental Organisations who have been constantly fighting for clean governance and accountability of the constitutional institutions, unsuspecting citizens and the Nation would never have known how the scarce natural resource spared by Army has been grabbed by those who enjoy money power and who have been able to manipulate the system.

Don’t sit on sanction for prosecution in corruption cases, says Supreme Court

Supreme Court of India

In a blow to every corrupt politician or bureaucrat shielded by the executive’s unwillingness to let them stand trial, the Supreme Court on Tuesday set a three-month deadline for governments to decide whether or not to grant sanction for prosecution under Section 19 of the Prevention of Corruption Act.

A Bench of Justices G.S. Singhvi and A.K. Ganguly was allowing a petition filed by Janata Party president Subramanian Swamy, who questioned the delay on the part of Prime Minister Manmohan Singh, the sanctioning authority, in granting sanction for prosecution of the former Telecom Minister, A. Raja, in the 2G spectrum allocation case.

The Bench gave two concurring judgments and held that Dr. Swamy had the locus standi to file a private complaint and seek sanction for prosecution. Justice Singhvi said: “Keeping in view the fact that the Special Judge, CBI, has already taken cognisance of the offences committed by Mr. A. Raja under the PC Act, we do not consider it necessary to give any other direction in the matter.”

Justice Singhvi held that had the Prime Minister been apprised of the true, factual and legal position on Dr. Swamy’s representation, he would surely have taken an appropriate decision and would not have allowed the matter to linger for more than one year.

Justice Ganguly said: “Delay in granting sanction has spoilt many a valid prosecution and is adversely viewed in [the] public mind that in the name of considering a prayer for sanction, protection is given to a corrupt public official as a quid pro quo for services rendered by the official in the past or maybe [to be rendered] in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds.”

The Bench rejected Attorney-General G.E. Vahanvati’s argument that the question of grant of sanction for prosecution of a public servant charged with any of the offences enumerated under Section 19(1) would arise only when the court decided to take cognisance and any request made prior to that was premature.

Justice Singhvi, however, said: “At the same time, we deem it proper to observe that in future every competent authority shall take appropriate action on the representation made by a citizen for sanction of prosecution of a public servant strictly in accordance with the direction [of the Supreme Court] in [the case of] Vineet Narain vs Union of India and the guidelines framed by the Central Vigilance Commission. While considering the issue regarding grant or refusal of sanction, the only thing which the competent authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.”

Justice Ganguly said: “Parliament should consider the constitutional imperative of Article 14 enshrining the rule of law wherein ‘due process of law’ has been read into it by introducing a time limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner.” Making it clear that the power under Section 19 must be reasonably exercised, he said “Parliament and the appropriate authority must consider restructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play.”

The judge said: “Where consultation is required with the Attorney-General or the Solicitor-General or the Advocate-General of the State, as the case may be, and the same is not possible within the three months, an extension of one-month period may be allowed, but the request for consultation is to be sent in writing within the three months. A copy of the request will be sent to the prosecuting agency or the private complainant to intimate him about the extension of the time limit.”

At the end of the extended period, “if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.”

Several cases in which sanction was unduly delayed were quashed by the Supreme Court, the judge pointed out. “Thus, in many cases public servants whose sanction proposals are pending before authorities for long periods of time are being allowed to escape criminal prosecution.”

Justice Ganguly said: “By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against [a] corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right.”

Justice Ganguly :

Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end.

 Corruption devalues human rights, chokes development and undermines justice, liberty,equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.

 Time and again this Court has expressed its dismay and shock at the ever growing tentacles of corruption in our society but even then situations have not improved much. [See Sanjiv Kumar v. State of Haryana & ors., (2005) 5 SCC 517; State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319; Shobha Suresh Jumani v. Appellate Tribunal Forfeited Property & another, (2001) 5 SCC 755; State of M.P. & ors. v. Ram Singh, (2000) 5 SCC 88; J. Jayalalitha v. Union of India & another, (1999) 5 SCC 138; Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394.]

 Learned Attorney General in the course of his submission fairly admitted before us that out of total 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, in more than 1/3rd cases of request for prosecution in corruption cases against public servants, sanctions have not been accorded. The aforesaid scenario raises very important constitutional issues as well as some questions relating to interpretation of such sanctioning provision and also the role that an independent judiciary has to play in maintaining rule of law and common man’s faith in the justice delivering system.

 Both rule of law and equality before law are cardinal questions in our Constitutional Laws as also in International law and in this context the role of the judiciary is very vital. In his famous treatise on Administrative Law, Professor Wade while elaborating the concept of rule of law referred to the opinion of Lord Griffith’s which runs as follows:

 “the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”

[See R. v. Horseferry Road Magistrates’ Court ex p. Bennett {1994) 1 AC 42 at 62]

I am in respectful agreement with the aforesaid principle. In this connection we might remind ourselves that courts while maintaining rule of law must structure its jurisprudence on the famous formulation of Lord Coke where the learned Law Lord made a comparison between “the golden and straight metwand of law” as opposed to “the uncertain and crooked cord of discretion”.

The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar and Others, (1987) 1 SCC 288 at page 315:

 “……It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness inthe society that certain acts are constituted offences and the right is given to any citizen to set the

machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak this Court pointed out that (SCC p. 509, para 6) “punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi……”

 Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on

prosecutors from approaching Court against corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption. Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under P.C. Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the rule of law and cause of justice is advanced. In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds. I may hasten to add that this may not be factual position in this but the general demoralizing effect of such a popular perception is profound and pernicious. By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. In this connection, if we look at Section 19 of the P.C. Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.

 There are instances where as a result of delayed grant of sanction prosecutions under the P.C. Act against a public servant has been quashed. See Mahendra Lal Das vs. State of Bihar and Others, (2002) 1 SCC 149, wherein this Court quashed the prosecution as the sanctioning authority granted sanction after 13 years. Similarly, in the case of Santosh De vs. Archna Guha and Others, (1994) Supp.3 SCC 735, this Court quashed prosecution in a case where grant of sanction was unduly delayed. There are several such cases. The aforesaid instances show a blatant subversion of the rule of law. Thus, in many cases public servants whose sanction proposals are pending before authorities for long periods of time are being allowed to escape criminal prosecution.

 Article 14 must be construed as a guarantee against uncanalized and arbitrary power. Therefore, the absence of any time limit in granting sanction in Section 19 of the P.C. Act is not in consonance with the requirement of the due process of law which has been read into our Constitution by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India and Another, (1978) 1 SCC 248.

I may not be understood to have expressed any doubt about the constitutional validity of Section 19 of the P.C. Act, but in my judgment the power under Section 19 of the P.C. Act must be reasonably exercised. In my judgment the Parliament and the appropriate authority must consider restructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play.

In my view, the Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein ‘due process of law’ has been read into by introducing a time limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may, in my opinion, consider the following guidelines:

a)All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.

b)Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.

 c)At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit. With these additional reasons, as indicated, I agree with Brother Singhvi, J., and allow the appeal and the judgment of the High Court is set aside.

‘Amending power is unique’

T.R. ANDHYARUJINA: "In the Kesavananda case external political forces operated for over 66 days."
T.R. ANDHYARUJINA: "In the Kesavananda case external political forces operated for over 66 days."

V. VENKATESAN IN THE FRONTLINE

 Interview with T.R. Andhyarujina, Senior Advocate in the Supreme Court.

TEHMTAN R. ANDHYARUJINA, a Senior Advocate in the Supreme Court of India, faced a lot of criticism from his colleagues, especially Soli J. Sorabjee, who was a junior to Nani Palkhivala during the hearing of the Kesavananda case, that his latest book, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament, was a wasted effort. The former Solicitor-General took the flak in his stride, saying, “The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law.” Excerpts from an interview he gave Frontline:

Your book suggests that the inviolability of the basic structure doctrine was a dubious view of the majority of the Kesavananda Bench. What should have been the ratio of that judgment?

Extracting the ratio from the 11 judgments should have been the task of either the 13-judge Bench or a subsequent Bench. It is difficult to say what would have been the ratio on a proper judicial exercise. Had that exercise been done, there may not have been a majority holding that there is a limitation of the basic structure of the Constitution in amending the Constitution. There was no majority for any implied limitation on the amending power as Justice [H.R.] Khanna had rejected the implied limitations on the Constitution. What would have been extracted as the ratio of the Kesavananda case by a later Bench is a matter of speculation. This difficult exercise was purposely avoided by Chief Justice [S.M.] Sikri when he created the so-called View by the Majority note and passed it around for signatures of the judges on April 24, 1973.

In the concluding chapter, you concede that the basic structure doctrine is so deeply enshrined in our constitutional law that it would not be shaken even by the knowledge of the process by which it came to be formulated. What then is the purpose of the book, if it is not to make readers question that long-held belief?

It is correct that the basic structure theory has become an axiom of our constitutional law and one cannot imagine any Bench of the Supreme Court annulling that theory. It is also true that for whatever reason and method the majority view was arrived at, the axiom of unamendability of the basic structure of the Constitution has had a salutary check and control on the amending power. The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law. After this case, Parliament and the government gained by different approaches on its social and economic policies, which the court did not interfere with merely because some fundamental right was perceived to be violated. In that sense, the judgment served a useful purpose to society.

Can you explain how the then government sought to appoint judges before the hearing of the case?

After the Golaknath case, the government took a predominant role in the appointment process. By and large the new government nominees, though men of eminence and distinction, decided in favour of the unlimited power of Parliament except Justice A.K. Mukherjea. After Golaknath, the initiative came from the government. Justice Sikri was initially reluctant to appoint Justices [M.H.] Beg and [S.N.] Dwivedi. The government prevailed upon him. He selected Justice Khanna. The government accepted it. The relations between Justice Sikri and Indira Gandhi were also strained.

Justice Sikri had to choose 13 out of the then total strength of 15 judges to hear the Kesavananda case [the earlier relevant case, Golaknath, was decided by 11 judges and the Kesavananda Bench had to be bigger than that]. There were just two remaining judges who did not have a long tenure: Justice [V.] Alagirisamy and Justice Inder Dev Dua. But their tenure could have been extended in the form of ad hoc judges [and could have been chosen to be part of the Kesavananda Bench to replace Justices Sikri and J.M. Shelat]. The general practice is when your view is being reviewed, propriety requires that you recuse yourself from the Bench. But nobody raised objections [against Justices Sikri and Shelat being on the Kesavananda Bench because they were earlier part of the majority judges on the Golaknath Bench].

You mention that there was a move to exclude Justice Beg, a pro-government judge, from the Bench after 66 days of hearing on his hospitalisation. Who was behind this move?

It is unfortunate that a strong attempt was made by the petitioners and the CJI [Chief Justice of India] to exclude him on his third and last illness. His exclusion would not have changed the number of the majority, as the majority would have still prevailed with 7:5 instead of 7:6. In a case with such political overtones, the [likely] exclusion of Justice Beg at the last moment created tensions. It was felt that if the case was adjourned for the return of Justice Beg, the case would have prolonged beyond the retirement of CJI Sikri and the whole effort of the 13-judge Bench would have come to naught. Therefore, the petitioners and the CJI wanted to drop Justice Beg from the Bench and proceed as if there were 12 judges. The illness of Justice Beg at the crucial moment was interpreted as some sort of a game plan of the government to put an end to the case. The petitioners believed that it was a move to favour the government. As a result, Justice Beg was retained on the Bench, with Palkhivala being asked to give written submissions. It was a serious illness, but the question was whether his illness would go beyond the tenure of Justice Sikri.

The Attorney-General had threatened to walk out if Justice Beg was dropped. [Justice H.M.] Seervai supported him. Without one judge on the Bench, the legitimacy of the judgment would have come into question. Palkhivala, therefore, submitted to the government’s wish, and agreed to close his oral arguments on the 66th day.

By signing the View by the Majority note, did the neutral judges not apply their minds? You suggest that some of them reluctantly signed it because of constraints of time as Justice Sikri was due to retire.

The only judge who said that he signed the View by the Majority note to accommodate Sikri was Justice Y.V. Chandrachud. The rest of the judges, except Mukherjea, were by and large committed to the view of Parliament not having the amending power to change the basic structure. It would not have made any difference to the ultimate result, as at least five of the judges were clearly in favour of limiting Parliament’s amending power, and, one judge, Justice Khanna, was in favour of limiting its powers only on the grounds of basic structure. The absence of judicial conference does not invalidate the judgment. The view by the majority cannot be considered invalid because of the absence of a judges’ conference [preceding it], but it had become dubious because it was a hurriedly prepared paper passed on for signatures just before the judgment was delivered.

You have also claimed that the then government was in possession of some of the draft judgments before they were delivered. What was the basis of this claim?

The government decided on the supersession of judges even before the judgment was delivered in open court. Kuldip Nayar, in his book, says that Chief Justice Sikri queried Justice Beg. Justice Dwivedi said [after his appointment] that he was going to the Supreme Court to reverse Golaknath. Justice Beg was the nominee of Indira Gandhi. The government had advance notice of the views of the judges. Justice Mukherjea, Justice P. Jagannatha Reddy, Justice Chandrachud and Justice Khanna did not give the impression of being one way or the other. They appeared to be uncommitted. So, they would tilt the balance. Justice Reddy, on his own, came to more or less the same conclusion as the Sikri-led judges.

Justice Mukherjea wrote a joint judgment with Justice Hegde. Justice Khanna took a midway position. Justice Chandrachud was perceived by the petitioners to be in favour of limiting the amending power by some of his statements in the court, and the fact that he had been invited by Justice Sikri to the only judicial conference of like-minded judges. Therefore, his writing a judgment in favour of Parliament was a great surprise. This gave rise to the rumour that he had been influenced by the then Law Minister H.R. Gokhale and retired Chief Justice Gajendragadkar [a family friend of Chandrachud]. Justice Chandrachud later said that he was entitled to change his views. He denied that he was influenced by Gokhale and Justice Gajendragadkar.

Why did Chief Justice A.N. Ray dissolve the 13-judge Bench to review the Kesavananda judgment within two days of its constitution in 1976? You have speculated on the reasons, like his isolation on the Bench, Palkhivala’s letter to the Prime Minister on the eve of the hearing protesting against the move, and so on. Can you elaborate?

I think the 13-judge Bench was constituted by Justice A.N. Ray to review the Kesavananda case without any judicial order and there was no indication why the case was required to be reviewed. This was the strongest reason advanced by Palkhivala. On this point, neither Chief Justice Ray nor Attorney-General Niran De was able to give a convincing answer. And from the observations of other judges, this question was a worrying one. Therefore, in my view, Ray could not carry the majority with him to review the Kesavananda case, and on the third day, he felt compelled to dissolve the Bench without any reason.

How would you interpret Justice Ray’s legacy?

Chief Justice Ray’s acceptance of the CJI post is often misunderstood. It was not he who manoeuvred it but the government. After knowing the views of the judges who were going to decide against Parliament, the government decided that the next CJI should not be a judge from among those judges. It is now known that the government even asked Justice K.K. Mathew whether he would accept the position of the CJI. But he declined. Chief Justice Ray himself was reluctant to be the CJI in such a controversial way, but he was told that if he did not accept the position, the government was determined to go down the line and appoint any other judge who would consent to be the CJI. Therefore, Justice Ray accepted the position with reluctance.

Your mentor H.M. Seervai changed his view after the Emergency that the doctrine of basic structure was required for Indian democracy as without it many of the abuses of power during the Emergency could not have been reversed legally. Do you similarly support the doctrine now, even while legally questioning its birth?

In the Kesavananda case, it was argued that the amending power could be abused. It was not an unknown fact. But that could never be the reason for cutting down any power. Seervai changed his view for personal reasons. Today, after 38 years, one can say that as a matter of political argument a check on the amending power is always to be welcomed. In other countries, the amending power is not subjected to such judicial constraints, except in Bangladesh. Any power is capable of being abused and the fact of the abuse is never a ground for limiting the governing power.

The difficulty in ascertaining the basic structure is that it is a highly nebulous and subjective standard. It gives a vital power to the judiciary, which was never contemplated by the Constitution makers. It is true that Parliamentary and executive misuse is something that requires judicial correction and which is done in the normal course. But the amending power is a unique power, which cannot be compared with the ordinary legislative or executive power. The amending power is a quasi-political power and its validity may not be within the domain of the executive, which is a view taken in most jurisdictions of the world, including, Malaysia, Sri Lanka, Pakistan and South Africa. It is a unique power to create the Constitution. Judges are bound by the Constitution.

All constitutional cases, in a sense, are political. In the Kesavananda case the external political forces operated for over 66 days, and in that sense it was not a normal, constitutional case deciding political issues.

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