LAW RESOURCE INDIA

Hanging in balance: No executive interference required

Posted in CONSTITUTION, JUDICIAL REFORMS, JUDICIARY, JUSTICE, LEGISLATURE by NNLRJ INDIA on August 17, 2014

opinion1RAJINDER SACHAR IN THE INDIAN EXPRESS

The judiciary has been praised by some for its role in exposing corruption in politics, while others point to the defective method of selection of judges through the collegium system to criticise it. To prevent further easy public slapping of the judiciary, we must now finalise the method of appointment.

The suggested pattern of a judicial appointments commission broadly fills the void. It is headed by the chief justice of India (CJI) and includes the next two senior judges, the Union law minister, two eminent persons (emphasis added) to be selected by the prime minister, the CJI and the leader of opposition in the Lok Sabha. Some rightly feel that “eminent persons” should be substituted with “eminent jurists”, because “eminence” by itself is too vague. Instead, “eminent jurist” would provide a larger field of academics, authors, outstanding lawyers (no longer practising, of course). The fear that the presence of a lay person would interfere with the independence of the judiciary is misplaced. As the Judicial Commission of New South Wales Annual Report said: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is [the] fundamental principle of our society’s constitutional arrangements.”

The provision with regard to the appointment of high court judges, however, states, unacceptably, that the JAC is only required to elicit (emphasis added) the views of the governor, chief minister and the chief justice of the high court. I can hardly see any relevance of eliciting the view of the chief minister separately from the governor. I, however, take strong objection to reducing the position of the chief justice of a high court to merely eliciting his view. The advice of the chief justice of a high court as to the suitability or otherwise of a person to be appointed a judge of a high court should normally be accepted.

Reportedly, though technically the collegium is being sought to be abolished, the CJI has asked chief justices of the high courts to consult their colleagues, even junior ones, as far as possible. But this suggestion may only be observed in the breach. I remember that in 1977, the Janata government’s informal suggestion that the chief justices of the high courts consult two senior colleagues was observed more in the breach. It was only when the collegium system was established that the chief justices of the high courts had no option but to consult their colleagues.

However, this did not mean that the government has accepted the collegium’s recommendation in all cases. In 1985, the chief justice of a high court and his two senior-most colleagues recommended four names, with the clarification that they must be appointed in the order in which the names were sent. This was done to prevent the government from picking and choosing on the specious argument that some names had not yet been cleared by the CBI and the appointments might be delayed, while those lower down the list could be appointed immediately. This was opposed by the chief justice, and the law ministry was so affronted that the government did not appoint any judge during his tenure. Afterwards, too, the law ministry first appointed new names and only later appointed those recommended by the earlier collegium. So the government’s intervention can only be checked by a strong judiciary. It is for this reason that I have reservations on doing away with collegiums entirely. The collegium system is welcome inasmuch as it constitutes a wider circle of three judges, rather than leaving it solely to the chief justice of the high court. The CJI’s advice to consult two more judges is welcome. I see no reason to abolish the collegium system at the high court level (which, after all, is only recommendatory). The appointments are now to be made under the provisions of the proposed JAC.

I am amazed that, so far, a serious self-inflected injury is being overlooked — that is, appointing the chief justices of high courts outside their parent court. I have never understood the logic of transferring the senior-most judge, whose turn to head the court in which he has worked for almost 10 to 15 years, and with the functioning and lower judiciary of which he is most familiar, has come. To transfer him to a new court for a period of one or two years or even less, to which he is a total stranger and most likely unaware of the names of his colleagues, is strange. At present, one has the embarrassing spectacle of a chief justice being transferred to a state where he cannot even understand the language. The chief justice of a high court should be the senior-most judge of the same court. This alone will lend strength and dignity to the high courts.

Section 8 of the new bill contemplates asking the state and Central governments to send recommendations for the selection of judges. I find this to be a frontal attack on the judiciary. After a JAC is constituted, the state or Central governments have no locus standi and should be outsiders in the process of selection. I agree though that the JAC should make public the names it is contemplating for appointments to high courts and the Supreme Court. This will make the process more open and participatory, and also negate the charge of secret manoeuvring in the appointment of judges.

The writer is a former chief justice of the Delhi High Court

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‘Wholly arbitrary, capricious and contrary to public interest’

Posted in CONSTITUTION, GOVERNANCE, LEGISLATURE by NNLRJ INDIA on February 3, 2012

Supreme Court of India

Reproduced here are excerpts from the concluding paragraphs of the Supreme Court’s verdict cancelling 122 2G licences issued during A. Raja’s term as Minister of Communications and Information Technology.

69. …There is a fundamental flaw in the principle of first-come-first-served inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served principle has inherently dangerous implications. Any person who has access to power corridor at the highest or the lowest level may be able to obtain information from the Government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission would be given. He would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim… the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum etc., the State must always adopt a method of auction by giving wide publicity so that all eligible persons may participate in the process. Any other methodology for disposal of public property and natural resources/national assets is likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values.

70. The exercise undertaken by the officers of the DoT [Department of Telecommunication] between September, 2007 and March 2008, under the leadership of the then Minister of C&IT [Communications & Information Technology] [A.Raja] was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality. The material produced before the Court shows that the Minister of C&IT wanted to favour some companies at the cost of the Public Exchequer and for this purpose, he took the following steps:

(i) Soon after his appointment as Minister of C&IT, he directed that all the applications received for grant of UAS [Universal Access Service] Licence should be kept pending till the receipt of TRAI [Telecommunication Regulatory Authority of India] recommendations.

(ii) The recommendations made by TRAI on 28.8.2007 were not placed before the full Telecom Commission which, among others, would have included the Finance Secretary. The notice of meeting of the Telecom Commission was not given to any of the non permanent members …

(iii) The officers of the DoT who attended the meeting of the Telecom Commission held on 10.10.2007 hardly had any choice but to approve the recommendations made by TRAI [or] they would have incurred the wrath of Minister of C&IT.

(iv) In view of the approval by the Council of Ministers of the recommendations made by the Group of Ministers, DoT had to discuss the issue of spectrum pricing with the Ministry of Finance…However, as the Minister of C&IT was very much conscious of the fact that the Secretary, Finance, had objected to the allocation of 2G spectrum at the rates fixed in 2001, he did not consult the Finance Minister or the officers of the Finance Ministry.

(v) The Minister of C&IT brushed aside the suggestion made by the Minister of Law and Justice for placing the matter before the empowered Group of Ministers. Not only this, within few hours of the receipt of the suggestion made by the Prime Minister in his letter dated 2.11.2007 that keeping in view the inadequacy of spectrum, transparency and fairness should be maintained in the matter of allocation of the spectrum, the Minister of C&IT rejected the same by saying that it will be unfair, discriminatory, arbitrary and capricious to auction the spectrum to new applicants because it will not give them level playing field. He simultaneously introduced cut off date as 25.9.2007 for consideration of the applications received for grant of licence despite the fact that only one day prior to this, press release was issued by the DoT fixing 1.10.2007 as the last date for receipt of the applications. This arbitrary action of the Minister of C&IT though appears to be innocuous was actually intended to benefit some of the real estate companies who did not have any experience in dealing with telecom services and who had made applications only on 24.9.2007, i.e. one day before the cut off date fixed by the Minister of C&IT on his own.

(vi) The cut off date, i.e. 25.9.2007 decided by the Minister of C&IT on 2.11.2007 was not made public till 10.1.2008 and the first-come-first served principle, which was being followed since 2003 was changed by him at the last moment through press release dated 10.1.2008. This enabled some of the applicants, who had access either to the Minister or the officers of the DoT, to get the bank drafts etc. prepared towards performance guarantee etc. of about Rs.1600 crores.

(vii) The manner in which the exercise for grant of LoIs [letters of intent] to the applicants was conducted on 10.1.2008 leaves no room for doubt that every thing was stage managed to favour those who were able to know in advance change in the implementation of the first-come-first served principle…

71. The argument of Shri Harish Salve, learned senior counsel that if the Court finds that the exercise undertaken for grant of UAS Licences has resulted in violation of the institutional integrity, then all the licences granted 2001 onwards should be cancelled does not deserve acceptance because those who have got licence between 2001 and 24.9.2007 are not parties to these petitions and legality of the licences granted to them has not been questioned before this Court.

72. 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 [this]. However, when it is clearly demonstrated before the Court 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 …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 …

73. Before concluding, we consider it imperative to observe that but for the vigilance of some enlightened citizens … 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 scarce natural resource spared by the Army has been grabbed by those who enjoy money power and who have been able to manipulate the system.

74. In the result, the writ petitions are allowed in the following terms:

(i) The licences granted to the private respondents on or after 10.1.2008 pursuant to two press releases issued on 10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and are quashed.

(ii) The above direction shall become operative after four months.

(iii) Within two months, TRAI shall make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band.

(iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction.

(v) Respondent Nos.2, 3 and 9 who were benefited by a wholly arbitrary and unconstitutional action taken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band and who off-loaded their stakes for many thousand crores in the name of fresh infusion of equity or transfer of equity shall pay cost of Rs.5 crores each. Respondent Nos. 4, 6, 7 and 10 shall pay cost of Rs.50 lakhs each because they too had been benefited by the wholly arbitrary and unconstitutional exercise undertaken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band.

(vi) 50% of the cost shall be deposited with the Supreme Court Legal Services Committee for being used for providing legal aid to indigent litigants. The remaining 50% cost shall be deposited in the Prime Minister’s Relief Fund.

(vii) However, it is made clear that the observations and conclusions contained in this order shall not, in any manner, affect the pending investigation by the CBI, Directorate of Enforcement and others agencies or prejudice the defence of those who are facing prosecution in the cases registered by the CBI and the Special Judge, CBI shall decide the matter uninfluenced by this judgment.

Justice G.S. Singhvi

Justice Asok Kumar Ganguly

New Delhi

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

Posted in CONSTITUTION, JUDICIAL ACTIVISM, JUDICIARY, LEGISLATURE, SUPREME COURT by NNLRJ INDIA on February 1, 2012

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.

Independents will not lose separate identity on joining coalition government: court

Posted in CONSTITUTION, LEGISLATURE by NNLRJ INDIA on January 26, 2012
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

J VENKATESANIN THE HINDU

Bench lists reasons for setting aside disqualification of five Independents for expressing lack of faith in Yeddyurappa regime

By joining a coalition government and becoming Ministers, Independents will not lose their separate identity, and later by expressing lack of faith in the Chief Minister, they will not attract disqualification, the Supreme Court ruled on Wednesday.

A Bench of Justices Altamas Kabir and Cyriac Joseph gave this ruling while setting aside the Karnataka Assembly Speaker’s order disqualifying five Independents for expressing lack of faith in the government, led by the former Chief Minister B.S. Yeddyurappa. In May 2011, the Bench quashed the order and said it would give detailed reasons later.

Writing the judgment, Mr. Justice Kabir interpreted the provisions of the Tenth Schedule of the Constitution relating to defections and held that the fact that the Independents had joined the BJP government would not mean that they had sacrificed their identities.

The Bench said: “It is no doubt true that an Independent legislator does not always have to express his intention to join a party in writing, but the mere extension of support to Mr. Yeddyurappa and the decision to join his Cabinet, in our view, were not sufficient to conclude that the appellants had decided to join and/or had actually joined the BJP, particularly on account of the subsequent conduct in which they were treated differently from the members of the BJP.”

“In the facts of this case, there is no material or evidence to show that the appellants had, at any time, joined the BJP. Even as Independents, the appellants could extend support to a government formed by a political party and could become a Minister in such government. There is no legal bar on… such extension of support or joining the government. Hence, such extension of support or joining the government as Minister by an Independent does not by itself mean that he has joined the political party which formed the government. There is also no evidence to show that the appellants were accepted and treated as members of the BJP by that … party. It is to be noted that the petitioners before the Speaker had no grievance about the appellants supporting the BJP government and becoming Ministers in the government for more than two years.”

The Bench said: “Only when the appellants withdrew support to the government led by Mr. Yeddyurappa and a confidence vote was scheduled to be held did the petitioners rake up the issue of alleged disqualification. The appellants, D. Sudhakar and others, even while participating in the meetings of the BJP Legislature Party, were shown separately in a category different from the other participants in such meetings, which clearly indicates that the appellants, though Ministers in the government led by Mr. Yeddyurappa, were treated differently from members of the BJP and were considered to be only lending support to the government…, without losing their independent status. Mere participation in the rallies or public meetings organised by the BJP cannot lead to the conclusion that the appellants had joined the BJP.”

The Bench said: “The order of disqualification passed by the Speaker was against the constitutional mandate in para 2(2) of the Tenth Schedule of the Constitution.”

Indicting the Speaker for the procedure adopted by him to disqualify the MLAs, the Bench said: “It is obvious from the procedure adopted by the Speaker that he was trying to meet the time schedule set by the Governor for the trial of strength in the Assembly and to ensure that the appellants and the 13 BJP MLAs stood disqualified prior to the date on which the floor test was to be held. Having concluded the hearing on October10, 2010, by 5.00 p.m., the Speaker passed detailed orders, in which various judgments, both of Indian courts and foreign courts, and principles of law from various authorities, were referred to, … holding that the appellants and the other MLAs stood disqualified as Members of the House.”

The Bench pointed out that the vote of confidence took place on October 11 2010, in which the disqualified members could not participate, and in their absence Mr. Yeddyurappa was able to prove his majority. Unless it was to ensure that the trust vote did not go against the Chief Minister, there was hardly any reason for the Speaker to have taken up the disqualification applications in such a great haste.”

On the contention that the Speaker was not amenable to court jurisdiction, the Bench, citing various decisions, held that under the Constitution, “the Speaker discharges quasi-judicial functions, which makes an order passed by him in such capacity subject to judicial review.”

http://www.thehindu.com/news/national/article2832406.ece

What will happen, if the protectors themselves become poachers? The then Chief Minister has let down the people of the city and the state, and the children.

Posted in ACCOUNTABILITY, CORRUPTION, GOVERNANCE, LEGISLATURE by NNLRJ INDIA on October 16, 2011
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

LAW RESOURSCE INDIA

What will happen, if the protectors themselves become poachers? The then Chief Minister has let down the people of the city and the state, and the children. This iswhat the Supreme Court said about Mr Manohar Joshi former Speaker of Lok Sabha .

New Delhi:  The Supreme Court has slammed Shiv Sena leader and former Maharashtra Chief Minister Manohar Joshi for handing over prime government land in Pune to his son-in-law for building a housing complex in 1998. In a severe indictment of Mr Joshi – also a former Lok Sabha Speaker – the court observed, “It is rather unfortunate that the then chief minister, who claims to be an educationist, took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law.”

The case, dating back to 1998, pertains to the change of land use of a plot meant for a primary school in Pune to favour a builder who was close to Mr Joshi’s son-in-law Girish Vyas. The nod for the change in the land use was given by Mr Joshi himself. The court has imposed a fine of Rs 15,000 on Mr Joshi and has asked his son-in-law, Mr Vyas, to surrender his claim on the ten-storied building that has come up on that land, failing which the structure would be demolished.

The Court in a wide ranging order while reminding the duties of the various agencies said that ” People of a state look up to the Chief Minister and those who occupy the high positions in the Government and the Administration for redressal of their grievances. Citizens are facing so many problems and it is expected of those in such positions to resolve them. Children are particularly facing serious problems concerning facilities for their education and sports, quality of teaching, their health and nutrition. It is the duty of those in high positions to ensure that their conduct should not let down the people of the country, and particularly the younger generation. The ministers, corporators and the administrators must zealously guard the spaces reserved for public amenities from the preying hands of the builders. What will happen, if the protectors themselves become poachers? Their decisions and conduct must be above board. Institutional trust is of utmost importance. In the case of Bangalore Medical Trust (supra) this court observed in paragraph 45 of its judgment that the directions of the Chief Minister, the apex public functionary of the State, was in breach of public trust, more like a person dealing with his private property than discharging his obligation as head of the State administration in accordance with law and rules Same is the case in the present matter where Shri Manohar Joshi, the then Chief Minister and Shri Ravindra Mane, the Minister of State have failed in this test, and in discharge of their duties. Nay, they have let down the people of the city and the state, and the children.”

We reproduce some important paragraphs from this judgement :

The Responsibility of the Municipal Commissioner and the Senior Government Officers

The Municipal Commissioner is the Chief Executive of the Municipal Corporation. It is his responsibility to act in accordance with these laws and to protect the interest of the Corporation. The Commissioner is expected to place the complete and correct facts before the Government when any such occasion arises, and stand by the correct legal position. That is what is expected of the senior administrative officers like him. That is why they are given appropriate  protection under the law. In this behalf, it is worthwhile to refer to the speech of Sardar Vallabhbhai Patel, the first Home Minister of independent India, made during the Constituent Assembly Debates, where he spoke about the need of the senior secretaries giving their honest opinions which may not be to the liking of the Minister. While speaking about the safeguards for the Members of Indian Civil Service (now Indian Administrative Service), he said-…To-day, my Secretary can write a note opposed to my views. I have given that freedom to all my Secretaries. I have told them `if you do not give your honest opinion for fear that it will displease your Minister, please then you had better go. I will bring another Secretary.’ I will never be displeased over a frank expression of opinion. That is what the Britishers were doing with the Britishers. We are now sharing the responsibility. You have agreed to share responsibility. Many of them with whom I have worked, I have no hesitation in saying that they are patriotic, as loyal and as sincere as myself(Ref: Constituent Assembly Debates. Vol.10 p. 50)

Now unfortunately, we have a situation where the senior officers are changing their position looking to the way the wind is blowing.

Expectations from the Political Executive

Same are the expectations from the political executive viz. that it must be above board, and must act in accordance with the law and not in furtherance of the interest of a relative. However, as the time has passed, these expectations are belied. That is why in the case of Shri Shivajirao Nilangekar (supra) this Court had to lament in paragraph 51 of the judgment as follows:- "51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The  pollution in our values and standards in (sic is) an equally grave menace as the pollution of the environment. Where such situations cry out, the courts should not and cannot remain mute and dumb

People of a state look up to the Chief Minister and those who occupy the high positions in the Government and the Administration for redressal of their grievances. Citizens are facing so many problems and it is expected of those in such positions to resolve them. Children are particularly facing serious problems concerning facilities for their education and sports, quality of teaching, their health and nutrition. It is the duty of those in high positions to ensure that their conduct should not let down the people of the country, and particularly the younger generation. The ministers, corporators and the administrators must zealously guard the spaces reserved for public amenities from the preying hands of the builders. What will happen, if the protectors themselves become poachers? Their decisions and conduct must be above board. Institutional trust is of utmost importance. In the case of Bangalore Medical Trust (supra) this court observed in paragraph 45 of its judgment that "the directions of the Chief Minister, the apex public functionary of the State, was in breach of public trust, more like a person dealing with his private property than discharging his obligation as head of the State administration in accordance with law and rules Same is the case in the present matter where Shri Manohar Joshi, the then Chief Minister and Shri Ravindra Mane, the Minister of State have failed in this test, and in discharge of their duties. Nay, they have let down the people of the city and the state, and the children.

Importance of the spaces for public amenities

As we have seen, the MRTP Act gives a place of prominence to the spaces meant for public amenities. An appropriately planned city requires good roads, parks, playgrounds, markets, primary and secondary schools, clinics, dispensaries and hospitals and sewerage facilities amongst other public amenities which are essential for a good civic life. If all the spaces in the cities are covered only by the construction for residential houses, the cities will become concrete jungles which is what they have started becoming. That is how there is need to protect the spaces meant for public amenities which cannot be sacrificed for the greed of a few landowners and builders to make more money on the ground of creating large number of houses. The MRTP Act does give importance to the spaces reserved for public amenities, and makes the deletion thereof difficult after the planning process is gone through, and the plan is finalized. Similar are the provisions in different State Acts. Yet, as we have seen from the earlier judgments concerning the public amenities in Bangalore (Bangalore Medical Trust (supra) and Lucknow (M.I Builders Pvt. Ltd. (supra), and now as is seen in this case in Pune, the spaces for the public amenities are under a systematic attack and are shrinking all over the cities in India, only for the benefit of the landowners and the builders. Time has therefore come to take a serious stock of the situation. Undoubtedly, the competing interest of the landowner is also to be taken into account, but that is already done when the plan is finalized, and the landowner is compensated as per the law. Ultimately when the land is reserved for a public purpose after following the due process of law, the interest of the individual must yield to the public interest.

As far as the MRTP Act is concerned, as we have noted earlier, there is a complete mechanism for the protection of the spaces meant for public amenities. We have seen the definition of substantial modification, and when the reservation for a public amenity on a plot of land is sought to be deleted completely, it would surely be a case of substantial modification, and not a minor modification. In that case what is required is to follow the procedure under Section 29 of the Act, to publish a notice in local newspapers also, inviting objections and suggestions within sixty days. The Government and the Municipal Corporations are trustees of the citizens for the purposes of retention of the plots meant for public amenities. As the Act has indicated, the citizens are vitally concerned with the retention of the public amenities, and, therefore deletion or modification should be resorted to only in the rarest of rare case, and after fully examining as to why the concerned plot was originally reserved for a public amenity, and as to how its deletion is necessary. Otherwise it will mean that we are paying no respect to the efforts put in by the original planners who have drafted the plan, as per the requirements of the city, and which plan has been finalized after following the detailed procedures as laid down by the law. Suggested safeguards for the future

Having noted as to what has happened in the present matter, in our view it is necessary that we should lay down the necessary safeguards for the future so that such kind of gross deletions do not occur in the future, and the provisions of the Act are strictly implemented in tune with the spirit behind.

(i) Therefore, when the gazette notification is published, and the public notice in the local newspapers is published under Section 29 (or under Section 37) it must briefly set out the reasons as to why the particular modification is being proposed. Since Section 29 provides for publishing a notice in the `local newspapers’, we adopt the methodology of Section 6 (2) of the L.A. Act, and expect that the notice shall be published atleast in two daily newspapers circulating in the locality, out of which atleast one shall be in the regional language. We expect the notice to be published in the newspapers with wide circulation and at prominent place therein.

(ii) Section 29 lays down that after receiving the suggestions and objections, the procedure as prescribed in Section 28 is to be followed. Sub-section (3) of Section 28 provides for holding an inquiry thereafter wherein the opportunity of being heard is to be afforded by the Planning Committee (of the Planning Authority) to such persons who have filed their objections and made suggestions. The Planning Committee, therefore, shall hold a public inquiry for all such persons to get an opportunity of making their submission, and then only the Planning Committee should make its report to the Planning Authority. (iii) One of the reasons which is often given for modification/deletion of reservation is paucity of funds, which was also sought to be raised in the present matter by the Municipal Commissioner for unjustified reasons, in as much as the compensation amount had already been paid. However, if there is any such difficulty, the planning authority must call upon the citizens to contribute for the project, in the public notice contemplated under Section 29, in as much as these  public amenities are meant for them, and there will be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. That was also the approach indicated by this Court in Raju S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222].

Primary Education

Primary education is one of the important responsibilities to be discharged by Municipalities under the Bombay Primary Education Act 1947. Again, to state the reality, even after sixty years after the promulgation of the Constitution, we have not been able to attain full literacy. Of all the different areas of education, primary education is suffering the most. When the Constitution was promulgated, a Directive Principle was laid down in Article 45 which states that the State shall endeavour to provide, within the period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years. This has not been achieved yet. The 86th Amendment to the Constitution effected in the year 2002 deleted this Article 45, and substituted it with new Article 45 which lays down that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. The amendment has made Right to Education a Fundamental Right under Article 21A. This Article lays down that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. In the year 2009 we passed the Right of Children to  Free and Compulsory Education Act 2009. All these laws have however not been implemented with the spirit with which they ought to have been. We have several national initiatives in operation such as the Sarva Shiksha Abhiyan, District Primary Education Programme, and the Universal Elementary Education Programme to name a few. However, the statistical data shows that we are still far away from achieving the goal of full literacy.

Nobel laureate Shri Amartya Sen commented on our tardy progress in the field of basic education in his Article `The Urgency of Basic Education’ in the seminar Right to Education-Actions Now held at New Delhi on 19.12.2007 as follows:-

India has been especially disadvantaged in basic education, and this is one of our major challenges today. When the British left their Indian empire, only 12 per cent of the India population was literate. That was terrible enough, but our progress since independence has also been quite slow. This contrasts with our rapid political development into the first developing country in the world to have a functioning democracy.

The story for Pune city is not quite different. Since the impugned development permission given by the Municipal Corporation was on the basis of no objection of the Chief Minister dated 21.8.1996, we may refer to the Educational Statistics of Pune city, at that time. As per the Census of India 1991, the population of Pune city was 24,85,014, out of which 17,14,273 were the literate persons which comes to just above 2/3 of the population. The percentage of literacy has gone up thereafter, but still we are far away from achieving full literacy and from the goal of providing quality education and facilities at the primary level.

There is a serious problem of children dropping out from the primary schools. There are wide ranging factors which affect the education of the children at a tender age, such as absence of trained teachers having the proper understanding of child psychology, ill-health, and mal-nutrition. The infrastructural facilities are often very inadequate. Large number of children are cramped into small classrooms and there is absence of any playground attached with the school. This requires adequate spaces for the primary schools. Even in the so called higher middle class areas in large cities like Pune, there are hardly any open spaces within the housing societies and, therefore, adequate space for the playgrounds of the primary schools is of utmost importance. Having noted this scenario and the necessity of spaces for primary schools in urban areas, it is rather unfortunate that the then Chief Minister who claims to be an educationist took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law. It also gives a dismal picture of his deputy, the Minister of State acting to please his superior, and so also of the Municipal Commissioner ignoring his statutory responsibilities.

Operative order with respect to the disputed buildings

We have held the direction given by the State Government for the deletion of reservation on Final Plot No.110, and the commencement and occupation certificates issued by the Pune Municipal Corporation in favour of the developer were in complete subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified. As far as the building meant for the tenants is concerned, the developer as well as  PMC have indicated that they have no objection to the building being retained. As far as the ten storied building meant for the private sale is concerned, the developer had offered to hand over half the number of floors to PMC, provided it permits the remaining floors to be retained by the developer. PMC has rejected that offer since the plot was reserved for a primary school. The building must therefore be either demolished or put to a permissible use. The illegal development carried out by the developer has resulted into a legitimate primary school not coming up on the disputed plot of land. Thousands of children would have attended the school on this plot during last 15 years. The loss suffered by the children and the cause of education is difficult to assess in terms of money, and in a way could be considered to be far more than the cost of construction of this building. Removal of this building is however not going to be very easy. It will cause serious nuisance to the occupants of the adjoining buildings due to noise and air pollution. The citizens may as well initiate actions against the PMC for appropriate reliefs. It is also possible that the developer may not be able to remove the disputed building within a specified time, in which case the PMC will have to incur the expenditure on removal. It will, therefore, be open to the developer to redeem himself by offering the entire building to PMC for being used as a primary school or for the earmarked purpose, free of cost. If he is so inclined, he may inform PMC that he is giving up his claim on this building also in favour of PMC.

The High Court has not specified the time for taking the necessary steps in this behalf. Hence, for the sake of clarity, we direct the developer to  inform the PMC within two weeks from today whether he is giving up the claim on the ten storied building named `Sundew Apartments’ apart from the tenants’ building in favour of PMC, failing which PMC will issue a notice to the developer within two weeks thereafter, calling upon him to furnish particulars to PMC within two weeks from the receipt of the notice, as to in what manner and time frame he proposes to demolish this ten storied building. In the event the developer declines or fails to do so, or does not respond within the specified period, or if PMC forms an impression after receiving his reply that the developer is incapable of removing the building in reasonably short time, the PMC will go ahead and demolish the same. In either case the decision of the City Engineer of PMC with respect to the manner of removal of the building and disposal of the debris shall be final.

As far as the ownership of the plot is concerned, the same will abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994 which will be decided in accordance with law. The old tenants will continue to occupy the building meant for the tenants.

The PMC and the State Government have fairly changed/reviewed their legal position in this Court, and defended their original stand about the illegality of the construction. We therefore, absolve both of them from paying costs to the original petitioners. The order with respect to payment of cost of Rs. 10,000/- against the then Chief Minister and the Minister of State to each of the original petitioners however remains. Over and above we add Rs. 15,000/- for each of them to pay to the two petitioners separately towards the cost of these appeals in this Court. Thus, the then Chief Minister and the Minister of State shall each pay Rs. 25,000/- to the two petitioners separately.

The spaces for public amenities such as roads, playgrounds, markets, water supply and sewerage facilities, hospitals and particularly educational institutions are essential for a decent urban life. The planning process therefore assumes significance in this behalf. The parcels of land reserved for public amenities under the urban plans cannot be permitted to be tinkered with. The greed for making more money is leading to all sorts of construction for housing in prime city areas usurping the lands meant for public amenities wherever possible and in utter disregard for the quality of life. Large number of areas in big cities have already become concrete jungles bereft of adequate public amenities. It is therefore, that we have laid down the guidelines in this behalf which flow from the scheme of the MRTP Act itself so that this menace of grabbing public spaces for private ends stops completely. We are also clear that any unauthorised construction particularly on the lands meant for public amenities must be removed forthwith. We expect the guidelines laid down in this behalf to be followed scrupulously.

The conclusions in nutshell and the consequent order

In the circumstances we conclude and pass the following order –

(i) We hold that the direction given by the Government of Maharashtra for the deletion of reservation on Final Plot No. 110, at Prabhat Road, Pune, and the consequent Commencement and Occupation certificates issued by the Pune Municipal Corporation (PMC) in favour of the developer were in complete  subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified.

(ii) The direction of the High Court in the impugned judgment dated 6/15.3.1999 in Writ Petition Nos. 4433 and 4434/1998 for demolition of the concerned building was fully legal and justified.

(iii) The contention of the landowner that his right of development for residential purposes on the concerned plot under the erstwhile Town Planning scheme subsisted in spite of coming into force of Development Plan reserving the plot for a primary school, is liable to be rejected. (iv) The acquisition of the concerned plot of land was complete with the declaration under Section 126 of the MRTP Act read with Section 6 of Land Acquisition Act and the same is valid and legal.

(v) The order passed by the High Court directing the Municipal Corporation to move for the revival of the First Appeal Stamp No. 18615 of 1994 was therefore necessary. The High Court is expected to decide the revived First Appeal at the earliest and preferably within four months hereafter in the light of the law and the directions given in this judgment.

(vi) The developer shall inform the PMC whether he is giving up the claim over the construction of the ten storied building (named `Sundew Apartments’) apart from the tenants’ building in favour of PMC, failing which either the developer or the PMC shall take steps for demolition of the disputed building (Sundew Apartments) as per the time frame laid down in this judgment.

(vii) The former occupants of F.P No. 110 will continue to reside in the building constructed for the tenants on the terms stated in the judgment. (viii) The corporation will not be required to pay any amount to the developer for the tenants’ building constructed by him, nor for the ten storied building in the event he gives up his claim over it in favour of PMC. (ix) The strictures passed by the High Court against the then Chief Minister of Maharashtra Shri Manohar Joshi and the then Minister of State Shri Ravindra Mane are maintained. The prayer to expunge these remarks is rejected. The remarks against the Municipal Commissioner are however deleted.

(x) The order directing criminal investigation and thereafter further action as warranted in law, is however deleted in view of the judgment of this Court in the case of Common Cause A Registered Society Vs. Union of India reported in 1999 (6) SCC 667

(xi) The then Chief Minister and the then Minister of State shall each pay cost of Rs. 15,000/- to each of the two petitioners in the High Court towards these ten appeals, over and above the cost of Rs. 10,000/- awarded by the High Court in the writ petitions payable by each of them to the two writ petitioners.

(xii) The State Government and the Planning authorities under the MRTP Act shall hereafter scrupulously follow the directions and the suggested safeguards with respect to the spaces meant for public amenities.

Khurshid remains consistent on Bail for 2G Scam Accused

Bail is rule, jail exception”, Khurshid reminds SC

In a balancing act, Union Law Minister Salman Khurshid said that while it was for the courts to decide as to who should be locked up, the dictum of bail being the rule and jail an exception has been laid down by the Supreme Court itself. Elaborating on his controversial statement that the judiciary needs to understand the ‘political economy’ in the country, Mr. Khurshid told PTI on Tuesday night that “it is not for me to lock up people, it is for the courts to decide”.

At the same time, he recalled that the Supreme Court had laid down the law “bail is the rule, jail is an exception”. The Law Minister was speaking in the backdrop of his comment, “if you lock up top businessmen, will investment come”, which was termed as “disturbing” by the Supreme Court on Wednesday.

Mr. Khurshid said his comments had nothing to do with the 2G case but agreed with the questioner that a lot of people think that many of those long detained in the scam had been deprived of their liberty.

In a changing society every institution has to respond to the demands of changing time and the courts had done that in the case of protection of environment for which they needed to be complimented.

Similarly, “the demands of our time are that we must appreciate what dissent is”, the minister said adding that it was the Supreme Court that had given bail to Maoist sympathiser Binayak Sen without saying that he was guiltless.

“They (the apex court) said he will be tried. If he is wrong he will be punished. But that is no no reason to keep him in prison. They gave him bail,” Mr. Khurshid said describing the order as “brilliant“. He went on to ask, “But when economic issues come does the Supreme Court pay the same attention to developing economic issues as the rest of us do”.

http://www.thehindu.com/news/national/article2531547.ece

If you lock up businessmen, will investment come: Law Minister

INDIAN EXPRESS

At a time when the judiciary is seized with cases concerning corruption, black money and the 2G spectrum scam, Law Minister Salman Khurshid has said that the judiciary needs to understand the “political economy” in the country.

Speaking to The Indian Express, he said: “What will affect the functioning of the government is if other institutions do not understand the kind of political economy we are faced with today: what is needed to encourage growth and investment? If you lock up top businessmen, will investment come? What optimal structure should be put in place for investment to come?”

Asked if he meant the judiciary when referring to “other institutions”, he replied: “Yes, judiciary is as important a player in the entire effort. Each of the three wings — judiciary, legislature and executive — has to understand the political economy and respond to it. The judiciary can’t be immune to the demands of society in changing times. The judiciary has been making positive interventions in the field of environment, fight against corruption, protection of human rights and social welfare, but it also has to understand the political economy.”

On why the UPA government has been increasingly facing flak from the judiciary, Khurshid said, “It’s not the entire judiciary. There are some judges who have felt that things need to be set right. Sometimes, we may not agree. For instance, we did not agree on the black money verdict and hence sought its recall. Two judges disagreed among themselves. These are difficult issues of political economy. We don’t blame the judges for getting it wrong. On certain things, the executive and the legislature also get it wrong.”

Asked about the controversial Finance Ministry’s note regarding Home Minister P Chidambaram’s stand on the 2G spectrum allocation issue when he was the Finance Minister, Khurshid said, “Even the worst interpretation of that document does not drag in the then FM.”

http://www.indianexpress.com/news/if-you-lock-up-businessmen-will-investment-come-law-minister/857840/0

 

Constitutional excesses

Posted in CONSTITUTION, DEMOCRACY, GOVERNANCE, LEGISLATURE by NNLRJ INDIA on September 20, 2011
BHARAT RATNA DR B R AMBEDKAR

BHARAT RATNA DR B R AMBEDKAR

A.G. NOORANI in FRONTLINE

Recent instances of perceived overreach by Governors and judges can be fraught with grave consequences if left unchecked.

A COUNTRY committed to the rule of law and the norms of democracy is not governed by continuous litigation to set right continuous wrongs, especially if judges who are appointed to check violations of the Constitution by the legislature and the executive themselves commit excesses, testifying to a disregard of not only the established norms of judicial behaviour and the spirit of the Constitution but even the very letter of the Constitution.

For reasons not hard to understand, leading figures of the Supreme Court Bar are quiescent. They deliver the occasional mild criticism when censure is the need of the hour. We do not have a single learned journal that remotely resembles Law Quarterly Review or Harvard Law Review. Academics disappoint. What we have had is instant comment. The quality of the discourse has been lowered by TV channels and most of those who perform for the idiot box. There is another vice – political partisanship. Constitutional values suffer as constitutional excesses proceed unchecked.

Here is a shortlist of some recent ones.

1. Chief Minister Narendra Modi of Gujarat presided over a pogrom of Muslims in March 2002 and should be despised. But should that fact or the fact that he is a member of the hate-spewing BJP becloud one’s judgment on the grave wrong the Governor of Gujarat, Kamla Beniwal, perpetrated on August 25 by appointing Justice (Retd.) R.A. Mehta as the Lokayukta? She claimed to act under Section 3(1) of the Gujarat Lokayukta Act, 1986. It enjoins consultation with the Chief Justice of the High Court and the Leader of the Opposition in the Legislative Assembly. This power is to be exercised and the consultation must be conducted by the Chief Minister, not by the Governor. She is bound to act on his advice. How on earth can she talk to the opposition leader on such a matter ignoring the Chief Minister?

The legal issues thus raised will be decided by the High Court. The Governor’s assertion, however, is fraught with grave consequences. She said: “Although generally the Governor acts as per the aid and advice of the Council of Ministers, headed by the Chief Minister, there might be circumstances where the Governor cannot remain a mute spectator to the happenings in the State and is compelled to use discretion.” The emotive language reveals a lot. She herself will be the judge of those “circumstances” and will “use discretion” which does not belong to her at all under the Constitution.

Initially, the framers of the Constitution envisaged an elected Governor. Jayaprakash Narayan was among those who had made suggestions on the draft and his comment on the appointment of Governors was pointed and perceptive:

“The coexistence of a Governor elected by the people and of the Chief Minister responsible to the Legislature may lead to friction. If the Governor is appointed by the President on the advice of the Federal Government out of a panel of four persons chosen by the Provincial Legislature by means of a single transferable vote, the Federal Chief Minister is likely to choose out of the panel a man of his own party even if the latter had not secured the largest number of votes. Such a situation is not likely to promote harmony in the provincial government and may disturb the harmony which must exist between the Federal and State Authorities.”

The drafting committee’s comment on Jayaprakash Narayan’s criticism is quoted below:

“Note: The criticism that the coexistence of a Governor elected by the people and a Chief Minister responsible to the Legislature might lead to friction and consequent weakness in administration will also apply if the Governor is elected by the members of the Legislature of the State and the representatives of the State concerned in the Federal Parliament. To meet the objection to the election of a panel of candidates for appointment to the office of Governor, the Special Committee recommended that the Governors should be directly appointed by the President. It has also been proposed that the Governor should act on the advice of his Ministers in all matters. This would obviate the possibility of any friction between the Governor and his Ministers.”

The drafting committee therefore decided: “That for Article 131, the following be substituted: Appointment of Governor: The Governor shall be appointed by the President by warrant under his hand and seal.”

This is the genesis for the provision as finally adopted by the Constituent Assembly. The Governor would be a constitutional head of state just like the President of India and be governed by identical conventions of the parliamentary system. This was made amply clear by B.R. Ambedkar in the Constituent Assembly on December 30, 1948.

“Under a parliamentary system of government, there are only two prerogatives which the King or the Head of the State may exercise. One is the appointment of the Prime Minister and the other is the dissolution of Parliament. With regard to the Prime Minister it is not possible to avoid vesting the discretion in the President. The only other way by which we could provide for the appointment of the Prime Minister without vesting the authority or the discretion in the President is to require that it is the House which shall in the first instance choose its leader and then on the choice being made by a motion or a resolution, the President should proceed to appoint the Prime Minister.”

Mohammed Tahir asked: “On a point of order, how will it explain the position of the Governors and the Ministers of the State where discretionary powers have been allowed to be used by the Governors?

Ambedkar: “ The position of the Governor is exactly the same as the position of the President and I think I need not over-elaborate that at the present moment because we will consider the whole position when we deal with the State Legislatures and the Governors” (emphasis supplied throughout). ( Constituent Assembly Debates, Vol. VII, page 1158.)

What if the President asserted such a power since his powers are “exactly the same” as those of the Governor? The Governor of Bihar, Debanand Konwar, holds up his assent to Bills passed by the Assembly and appoints Vice-Chancellors without consulting Chief Minister Nitish Kumar. What if the President also behaves thus?

2. On August 24, leading dailies carried a full-page advertisement of the Tamil Nadu government headed by J. Jayalalithaa ostensibly to highlight the “achievements” of a government which had come to power on May 19. The photo/picture of her meeting with U.S. Secretary of State Hillary Clinton alone suffices to expose the falsity of the excuse. The whole page projected J. Jayalalithaa personally. Such a projection is a gross abuse of power and is unconstitutional. The High Court can order her personally to reimburse the treasury with the money spent on the advertisement. In fairness, she was only following the example set over decades by Chief Ministers of all political parties. As H.M. Seervai pointed out, under Article 294 of the Constitution assets and properties are vested in the Union and the State governments for the purpose respectively of the Union and the States, in short for a public purpose. ( Constitutional Law of India, Fourth Edition, Vol. I; page 933). The Federal Constitutional Court of Germany held such ads to be abuse of power, in March 1977 and more recently.

3. The Indian Express of August 24 reported: “Students of government-run primary schools in Madhya Pradesh are now compulsorily reading what their counterparts in the RSS-run Saraswati Shishu Mandirs have been doing for a long time. The first copies of Devputra, a children’s magazine published by Indore-based Saraswati Bal Kalyan Nyas, have reached over 83,400 primary schools across the State.

“The Hindi monthly, which boasts of a circulation of 1.3 lakh, has devoted a special issue to RSS ideologue M.S. Golwalkar in the past. Senior RSS functionary Krishna Kumar Ashthana heads the trust that brings out the magazine. The magazine will cost the exchequer Rs.1.5 crore.”

This outrage should be set at naught by the courts. In R. vs Ealing London Borough Council, ex p. Times Newspapers Ltd. (1986) 85 LGF 316, The Times had the borough council’s decision to exclude it for extraneous reasons struck down. As the venerable Halsbury’s Laws of England sums up: “A decision as to the library stock taken on purely political grounds is a decision for an ulterior motive taken into account an irrelevant consideration is therefore susceptible to judicial review” (Vol. 28, page 188, para 335). The poison spread in textbooks is a menace none should tolerate.

4. But what is the citizens’ recourse against excesses committed by judges of the highest court in the land? It is bad enough that law correspondents and the dailies meekly submitted, bar exceptions, to Justice J.S. Verma’s arbitrary edict that outbursts of individual judges should be attributed to “the Bench”, and thus perpetrate a falsehood. “The Bench” speaks only through its judgment. It is individual judges who make remarks in the course of the hearings.

Read this report in the Indian Express of August 30: “Days after MPs questioned the process of judicial appointment, the Supreme Court (sic) today hit back. ‘We have seen some enlightened people making comments that the standards of judiciary have gone down. Let those people cry from rooftops that the standards of judiciary have gone down,’ said a Bench of Justice G.S. Singhvi and Justice H.L. Dattu.

“ The Judges also attacked the government saying that pople would ‘teach them a lesson’ as was seen recently in the Anna Hazare campaign for the Jan Lokpal. In fact, the Bench suggested that the government could face more such protests and that things could take a ‘worse’ turn’.” By the way, which of the two judges spoke thus. They could not have spoken the same words together in chorus. Why talk of “the Bench” and why “the Supreme Court”?

These brazenly political remarks are not only grossly improper but also violative of Article 122 of the Constitution. Judges have no right to comment on debates in Parliament. Correspondingly, under Article 121 MPs may not comment on judges. Two features stand out: intemperate comments by judges on and off the Bench and aggrandisement of power. The Supreme Court by its own ipse dixit and in violation of the Constitution assumed to itself the power to appoint judges and created a bar, equally unconstitutionally, of police inquiries against a judge save with the permission of the Chief Justice of India. Five of these custodians recently came under a cloud – CJIs K.M. Singh, A.S. Anand, M.M. Punchi, Y.K. Sabharwal and their “distinguished” successor K.G. Balakrishnan. Both this bar so erected and the bogus collegium stand discredited today, but not before they had done incalculable harm (see the writer’s article “Above the law”, Frontline November 7 and November 21, 2008, and “Talking judges”, Frontline, February 25, 2011).

The remarks made recently by Justices B. Sudershan Reddy, A.K. Ganguly and Aftab Alam, in different judgments have aroused much criticism (Vide Krishnadas Rajagopal’s report, Indian Express, August 5, 2011).

5. The correspondent reported in the same paper on August 26 a set of “updated” norms issued by the Supreme Court for accreditation of journalists to the court. It “can be withdrawn, at any time, without assigning any reason” – a pathetic display of arbitrary power by a court whose duty it is to strike down arbitrary power. Judicial excess is more obnoxious than legislative or executive excess. This order is subject to judicial review and deserves to be challenged in court.

Source: http://www.frontline.in/stories/20111007282010400.htm

Mercy plea or Lokayukta: Can Prez and guv act in personal capacity?

Posted in LEGISLATURE, PARLIAMENT by NNLRJ INDIA on September 5, 2011
Canon outside the entrance to Rashtrapati Bhaw...

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DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Recent decisions by constitutional heads – rejection of mercy petitions in the Rajiv Gandhi assassination case by the President and the Gujarat governor’s decision to appoint Lokayukta – have caused debates both on constitutional and political lines.

The Constitution vests sovereign power in the President and governors. Governance in the Centre and states are carried out in their name. But they do not have unbridled power to decide mercy petitions in exercise of exclusive powers conferred on them under Articles 72 and 161. They have to act in aid and advice of the council of ministers, both at the Union and state levels, as have been held conclusively by the SC. The SC had grudgingly agreed with Justice Oliver Wendel Holmes, who had said, “Pardon is not a private act of grace from an individual happening to possess power. It is part of a constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”

So, the President by rejecting the mercy pleas has, on the aid and advice of the Union council of ministers, come to the conclusion that public welfare would not be served by reducing the punishments awarded to the convicts. The Constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction. But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.

Now, it is in the process of examining whether there should be a time limit for deciding mercy petitions, which keep pending for years inflicting mental torture on condemned prisoners awaiting their day. The question of the President and governors, conferred with wide powers under the Constitution, acting in their own capacity without consulting the elected government came in for wide discussion in Shamsher Singh case [1975 SCR (1) 814].

A 7-judge constitution bench was amused by the ingenious arguments by a counsel supporting vesting of discretionary powers with President and governors to step around the SC’s consistent view that India has accepted the Cabinet form of government.

The counsel argued – wherever the Constitution has expressly vested powers in the President or the governors, they belong to them alone and cannot be handled on their behalf by ministers under the relevant rules of business. It is similar to the arguments justifying Gujarat governor Kamla Beniwal‘s decision to appoint Lokayukta without consulting the chief minister.

The SC had answered this question by saying, “How ambitious and subversive such an interpretation can be to parliamentary (and popular) authority unfolds itself when we survey the wide range of vital powers so enunciated in the Constitution. Indeed, a whole host of such Articles exist in the Constitution, most of them very vital for the daily running of the administration and embracing executive, emergency and legislative powers either of a routine or momentous nature.”Discussing the governors, the court said they had “power to grant pardon or to remit sentence, the power to make appointments including of the chief minister, the advocate general, district judges, members of the public service commission”.

It listed such kind of power vested in the President – supreme commander of the armed forces, appointment of judges of the SC and HCs, power to dismiss a state government under Article 356 and an entire army of public servants who continue in service at the pleasure of the President. If President and governors acted on their own, then parliamentary democracy “will become a dope and national elections a numerical exercise in expensive futility”, the court had warned.

The 7-judge bench said if this was true of Indian Constitution and the system of governance, then “we will be compelled to hold that there are two parallel authorities exercising powers of governance of country, as in the dyarchy days, except Whitehall is substituted by Rashtrapati Bhawan and Raj Bhawan. The Cabinet will shrink in political and administrative authority”.

It said such a distortion “would virtually amount to a subversion of the structure, substance and vitality of our Republic, particularly when we remember that governors are but appointed functionaries and the President himself elected on a limited indirect basis”.

Irrespective of who gets appointed and who gets pardon, let politicians not introduce politics into the constitutional scheme, the thread that keeps the country united. In case of Gujarat, there is a difference- the statute clearly provided that Lokayukta will be appointed by the governor in consultation with the chief justice of the HC. The Modi government can amend the statute, which on Shamsher Singh judgment logic, appears untenable. But as long as it is there, why does the BJP want the Modi government to have primacy in Lokayukta appointment but grandstands for an independent process for Lokpal?

http://timesofindia.indiatimes.com/india/Mercy-plea-or-Lokayukta-Can-Prez-and-guv-act-in-personal-capacity/articleshow/9866312.cms

Engaging with Policy Makers

Posted in CONSTITUTION, DEMOCRACY, GOVERNANCE, LEGISLATIONS, LEGISLATURE by NNLRJ INDIA on June 19, 2011

PRS LEGISLATIVE REVIEW

This Primer attempts to explain the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate how civil society groups have been able to engage in the process of law making.

Right to Information Act, 2005

The campaign for the right to information was started by a group of workers in a village in Rajasthan when they were not paid by the government for work done during a famine.  They formed a citizen group, Mazdoor Kisan Shakti Sangathan (MKSS).  This group was supported by several social activists and the press, and led to the formation of the National Campaign for People’s Right to Information (NCPRI) in 1996.

The NCPRI and Press Council of India formulated an initial draft of a right to information law in 1996.  The government introduced the Freedom of Information Bill in 2002. In August 2004, the NCPRI suggested a set of amendments to the Freedom of Information Act, 2002.  The National Advisory Council (NAC) endorsed many of these proposals, and the government introduced the Right to Information Bill in December 2004.  The law was enacted in 2005. 

The RTI Act is an example of how citizens groups can significantly affect government policy. This Primer explains the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate the various ways in which civil society groups have been able to engage with the legislative process. 

Who makes laws?

In India, the lawmaking bodies are Parliament at the central level and Legislative Assemblies and Councils at the state level.  Parliament consists of two Houses:  the Lok Sabha, or “House of the People,” and the Rajya Sabha, or “Council of States.”

How is a law made?

The process of enacting a new law can be broadly divided into four steps:

Step 1:   The need for a new law, or an amendment to an existing piece of legislation, is identified. This may be done either by the government or by citizen groups who can raise public awareness regarding the need for the law.

Sometimes individual Members of Parliament (MPs) can introduce Bills in Parliament, known as private member Bills, as ways to highlight the need for a law.  While such Bills are almost never passed into law, they can provide a framework or a context within which the government can introduce its own legislation on the same issue.

Step 2:   The concerned ministry drafts a text of the proposed law, which is called a ‘Bill’The Bill is circulated to other relevant ministries for inputs. Comments from the public on the proposed draft may also be invited. The draft is revised to incorporate such inputs and is then vetted by the Law Ministry.  It is then presented to the Cabinet for approval.

Step 3:   After the Cabinet approves the Bill, it is introduced in Parliament.  Under the Indian political system, Parliament is the central legislative (or law making) body.  Every Bill goes through three Readings in both Houses before it becomes an Act.

·         During the First Reading the Bill is introduced.  The introduction of a Bill may be opposed and the matter may be put to a vote in the House.  In August 2009, the Law Minister withdrew the motion to introduce the Judges (Disclosure of Assets and Liabilities) Bill as many MPs were opposed to the Bill, on grounds that it violated the Constitution.

After a Bill has been introduced, the Presiding Officer of the concerned House (Speaker in case of the Lok Sabha, Chairman in case of Rajya Sabha) may refer the Bill to the concerned Departmentally Related Standing Committee for examination.  The Standing Committee considers the broad objectives and the specific clauses of the Bill referred to it and may invite public comments on a Bill.

On rare occasions, Bills which come under the ambit of a number of different ministries, may be referred to a Joint Committee.

The Committee then submits its recommendations in the form of a report to Parliament.

In the Second Reading (Consideration), the Bill is scrutinized thoroughly.  Each clause of the Bill is discussed and may be accepted, amended or rejected.

During the Third Reading (Passing), the House votes on the redrafted Bill.

If the Bill is passed in one House, it is then sent to the other House, where it goes through the second and third readings.

During the second reading, the government, or any MP, may introduce amendments to the Bill, some of which may be based on recommendations of the Standing Committee.  However, the government is not bound to accept the Committee’s recommendations.

 Step 4:   After both Houses of Parliament pass a Bill, it is presented to the President for assent.  She has the right to seek information and clarification about the Bill, and may return it to Parliament for reconsideration.  (This may be done only once.  If both Houses pass the Bill again, the President has to assent.)

Step 5:   After the President gives assent, the Bill is notified as an Act.  Subsequently, the Bill is brought into force and rules and regulations to implement the Act are framed by the concerned ministry, and tabled in Parliament.  In some cases, if the provisions in the Bill permit, the ministry may bring the Act into force over a period of time rather than all at once.  For instance, various sections of the Food Safety and Standards Act, 2006 were brought into force in three different stages between August, 2006 and August, 2008.  A number of sections of the Act have not yet been brought into force as of date.

Is the above process always followed?

This process is almost always followed.  However some Bills may not be referred to a Standing Committee. Bills such as the SEZ Bill, 2005 and the National Investigation Agency Bill, 2008 were not sent to a Standing Committee.

How is public participation possible during the process of lawmaking?

Step 1:   The role which can be played by citizen groups before and while the Bill is being drafted.

The case of the Right to Information Act cited on Page 1 is an example of citizen groups coming forward to participate in legislative the process of lawmaking.  Beginning with a movement started by a group of citizens, the law eventually became operational in October 2005.

Step 2:   When the government asks for public feedback on a Bill

Even before a Bill has been drafted, the relevant ministry might choose to advertise and seek inputs from experts and citizens.  This, though, is a rare occurrencen some cases, the concerned ministry drafts a new legislation and seeks public feedback before sending it for Cabinet approval.

A New Police ActThe current Police Act dates back to 1861.  The government felt the need to update this Act.  The Ministry of Home Affairs had invited suggestions from individuals and citizen groups which may be incorporated into a new Bill.

Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007

The Ministry of Women and Child Development had prepared a Bill intended to provide for the protection of women against sexual harassment in the workplace. The ministry had put up a draft of the Bill on its website and had invited comments.

Step 3:   Engaging with Standing Committees.

After a Bill has been introduced, it is usually referred to the concerned Standing Committee which invites various stakeholders and experts for their suggestions.

This provides another opportunity for civil society and the public to get involved in legislation. Fifteen witnesses deposed before the Standing Committee on Rural Development while it was preparing the report on the National Rural Employment Guarantee Bill.  All Standing Committee meetings are closed door sessions which are not open to the general public or the media.  Citizens groups can approach the relevant Committee to ask to be allowed to depose before it.

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

The Bill sought to recognise the rights of forest dwellers to land occupied by them.  The Bill was referred to a joint committee of Parliament, since it involved issues relevant to a number of ministries such as tribal affairs and environment.  The committee received 109 written submissions from organisations and individuals. In addition, 44 witnesses deposed before it.

The Food Safety and Standards Bill, 2005

The Food Safety and Standards Bill, 2005 seeks to consolidate several laws governing the food sector and establish a single reference point for all matters relating to food safety and standards.  The Standing Committee heard the views of a number of stakeholders including citizen groups such as VOICE, New Delhi, and Gandhi Peace Foundation, Kottayam.

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens.

The Standing Committee had received written submissions and oral testimony from several groups as it discussed the Bill between May and July, 2007.  Such groups included the All India Senior Citizens Confederation, the Senior Citizens Service Forum and Age Care India, etc.  The Standing Committee submitted its report in August 2007.  The Bill was finally passed and enacted into law in December, 2007.

The government is not bound to accept the recommendations made by the Standing Committee.  In the case of the Food Safety and Standards Act, 2006, the government did not accept any of the Committee’s recommendations.

Even after the Standing Committee has finalised its recommendations, there is scope to reach out to Members of Parliament and political parties.  There are a number of instances in which political parties – allies in the ruling coalition or the opposition parties – have been able to prevent a Bill from being passed in Parliament or by forcing the government to make amendments to the Bill before being passed.

The Pension Fund Regulatory and Development Authority Bill, 2005

The Pension Fund Regulatory and Development Authority (PFRDA) Bill was introduced in Lok Sabha in March 2005.  The Bill proposes a framework for the development and regulation of pension funds in India in order to promote old age income security.  The Standing Committee presented its report in July 2005.  The Committee was in agreement with most of the provisions of the Bill.  However, the Bill was criticized by a number of trade unions and the Left Parties.

Following the opposition to the Bill, the government deferred the discussion and vote on the Bill. Subsequently, the PFRDA Bill lapsed with the dissolution of the 14th Lok Sabha.

Step 4:   After the Bill is passed by both the Houses and goes to the President.

In some rare cases, the President may ask Parliament to reconsider a Bill.

The Parliament (Prevention of Disqualification) Bill, 2006

Article 102 of the Constitution prohibits MPs from holding any office of profit, except that of a Minister or any office specifically exempted.  The Parliament (Prevention of Disqualification) Act, 1959 lists offices which are exempted.

In 2006, several petitions were filed with the Election Commission that a number of MPs were holding offices of profit.  The government introduced a Bill in May 2006 exempting a number of posts (including those held by some sitting MPs) from the definition of office of profit.  The Bill was passed by both Houses and sent to the President for his assent.

The President returned the Bill, seeking clarification on a number of issues, and asked Parliament to reconsider it.  Parliament passed the Bill again without any changes, following which the President gave his assent.  However, a Joint Parliamentary Committee was set up to go into the issues relating to the holding of offices of profit by MPs.

Step 5:   After the President of India has assented to a Bill and it is notified as an Act.

After an Act is passed by Parliament, it can still be challenged in the courts on grounds that it violates the provisions of the Constitution of India.

The AIIMS (Amendment) Act, 2007

In 2007, Parliament passed the AIIMS (Amendment) Act, 2007, which provided for the retirement of the director of AIIMS at the age of 65.

The Act was challenged in the Supreme Court by the then director of AIIMS, P. Venugopal on grounds that the Act was discriminatory and was introduced specifically to superannuate him.

The Supreme Court upheld this petition and struck down the Act.  It also ordered the reinstatement of Dr. Venugopal as director of the institution.

Step 6:   When the rules and regulations to the Act are being drafted.

The government may ask the public for comments and suggestions before framing rules and regulations under the Act

The Food Safety and Standards Act, 2006The Food Safety and Standards Authority of India has been set up under the Food Safety and Standards Act, 2006 to regulate safety and hygiene standards for different foods.

The regulator recently called for public comments on guidelines drafted by it.  The guidelines were put up by the regulator on its website.

During the process of drafting and the Bill being considered in Parliament, a variety of stakeholders may be involved.  The final Act is usually a compromise between competing interests.  Despite this, there is every reason for concerned citizens and groups to make every effort possible to engage with the process and ensure that they are able to make their voices heard. 

http://www.prsindia.org/parliamenttrack/primers/engaging-with-policy-makers-183/

Looking for knights in black robes

Supreme Court of India

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

PUBLISHED IN THE TRIBUNE

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

The active involvement of Judges in community organisations has also evoked a similar response when their civil society associates appear as litigants before them. Frequent socialising with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the Judge is susceptible to undue influence in the discharge of his duties. In such a situation, Judges must keep the part of impartial, objective, fearless and independent justice alive. A Judge must inevitably choose to be a little aloof and isolated from the community at large.

He should not be in contact with lawyers, individuals or political parties, their leaders or ministers except on purely social occasions. When one enters the Judges’ world, one inevitably has to impose upon oneself certain obvious restrictions. Judges owe a solemn duty to the community at large and from day-to-day they must ask themselves whether they have done or said anything which is inconsistent with the oath of office they have taken and which otherwise are consistent with their obligations as a Judge.

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

Drafting judgements

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

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

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

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

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

Separation of powers

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

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

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

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

Judicial accountability

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

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

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

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

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

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

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

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

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

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

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