Constitutional excesses

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

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Justice Katju was part of the Bench that gave landmark judgments

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

J VENKATESAN IN THE HINDU

Contribution of Supreme Court judge hailed on his retirement

Justice Markandey Katju retired on Monday as judge of the Supreme Court on his attaining the age of superannuation. He was given a farewell by members of the Bar and the Bench at a function organised by the Supreme Court Bar Association amid a standing ovation from lawyers.

Justice Katju was appointed Supreme Court judge in April 2006 and during his tenure spanning a little over 5 years, he has rendered several landmark judgments on various branches of law, in particular criminal jurisprudence, constitutional, and human rights issues. With his smiling face, he endeared himself to members of the Bar and the Bench. Justice Katju was a judge of the Allahabad High Court, the Chief Justice of the Madras and Delhi High Courts, before being elevated to the Supreme Court.

Chief Justice of India S.H. Kapadia paid encomiums to Justice Katju, saying he spoke his mind in no uncertain terms. “He is very outspoken and he stood for institutional integrity. Today we live in a world of hypocrisy and to speak the truth one needs courage.”

Attorney-General G.E. Vahanvati said, “there was never a dull moment in his court.” President of SCBA P.H. Pareikh described Justice Katju as one who always encouraged young lawyers. “When young lawyers sought ‘pass over’ for seniors, Justice Katju used to ask the juniors to argue themselves.”

Justice Katju said: “I do believe that a tribute coming from the Bar is the highest reward a judge can aspire for. As regards my performance as a judge, that is for others to decide. All I can say is that I always tried to do my duty sincerely and honestly. It was a great privilege for me to serve in this august institution. I am sure that this court will continue serving the country honourably in the role assigned to it by the Constitution.”

Justice Katju was part of the Bench that gave several landmark judgments. To cite a few, he was very harsh on honour killings. To stamp out the barbaric and feudal practice of ‘honour killings,’ he directed the trial/High Courts to award death sentence to the accused who perpetrated such offences. For criminal offences relating to dowry death or bride-burning cases, he awarded death sentences unmindful of the demand for abolition of death penalty, saying that as long as the provision remained in the statute, courts would have to award death sentence in the rarest of rare cases.

In another historic judgment, he allowed passive mercy killing of a patient in a permanent vegetative state (PVS) by withdrawing the life support system with the approval of a Medical Board and on the directions of the High Court concerned.He, however, did not accept the plea of Pinky Virani of Mumbai seeking permission to withdraw the life support extended to Aruna Ramachandra Shanbaug lying in a PVS at KEM hospital, Mumbai for 37 years. Though the court dismissed the petition filed by Pinky Virani on the ground that she did not have the locus standi and only the hospital could seek such a request, it allowed passive euthanasia (mercy killing) and laid down guidelines.

In an unusual step, Justice Katju went out of the way and appealed to the Pakistan government to consider granting remission of sentence to Gopal Dass, an Indian detained in the Lahore Central Jail for about 27 years, on humanitarian grounds and to release him. Acting on the appeal, the Pakistan government released him.

In a controversial judgment, Justice Katju said: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a ‘relationship in the nature of marriage’ for her to claim the benefit of live-in to get maintenance under the Protection of Women from Domestic Violence Act, 2005.” He rejected the plea for review of this judgment.

Justice Katju, who had granted bail to Binayak Sen, arrested on sedition charges, while dealing with an ULFA case held that mere membership of a banned organisation would not make a person criminal under the TADA unless he resorted to violence or incited people to violence or created public disorder by violence or incitement to violence.

In a strong indictment of a judge of the Allahabad High Court for passing orders for extraneous considerations, Justice Katju asked the Chief Justice of the High Court to take appropriate action against the judge and against certain other judges facing complaints.

He said: “Something is rotten in the Allahabad High Court, as this case illustrates.” Recently, he passed orders for rehabilitation of sex workers and asked the Centre and the States to formulate schemes to provide them employment.

http://www.thehindu.com/news/national/article2468372.ece

Objection, your honour

THE ROT IN JUDICIARY

THE ROT IN JUDICIARY

SATYA PRAKASH IN THE HINDUSTAN TIMES

As Justice Soumitra Sen of the Calcutta High Court faces impeachment proceedings, the focus is back on corruption in the Indian judiciary, often accused of opposing measures to introduce transparency and accountability in an institution that also judges the works of the Legislature and the

Executive.

During the debate on the resolution in the Rajya Sabha to remove Justice Sen, cutting across party lines, MPs attacked the judiciary for corruption, lack of accountability and the collegium system of appointments, in which the executive hardly has any role to play. No wonder, in his farewell speech, Justice VS Sirpurkar of the Supreme Court described the statements against the judiciary as “indigestible”.

Should the Judiciary be under Lokpal?
Gandhian Anna Hazare, who had been on an indefinite fast since August 16 to demand a strong Lokpal (anti-corruption ombudsman), first demanded that the judiciary be brought under the Lokpal. However, team Anna is now said to have agreed to keep the judiciary out of the purview of the Lokpal if the government simultaneously brings the Judicial Standards and Accountability Bill with strong provisions to deal with judicial corruption.

“Judiciary can’t be covered by this (proposed) Lokpal. It should be covered by another alternative mechanism. We call it the National Judicial Commission,” leader of Opposition in the Rajya Sabha Arun Jaitley said on August 18, during the debate on Sen’s impeachment.
According to former Chief Justice of India PN Bhagwati, bringing the judiciary under the Lokpal would “seriously” affect its independence. Only a “specialised agency” should be entrusted to ensure accountability in the judiciary, whose autonomy could be compromised if brought under the Lokpal, Bhagwati said in an open letter to Hazare.

The Judicial Standards and Accountability Bill, 2010
The UPA government introduced the Judicial Standards and Accountability Bill in the Lok Sabha on December 1, 2010. It proposes to lay down judicial standards, provide for the accountability of judges, and requires them to declare their assets and liabilities, and also that of their spouse and children.

The Bill requires judges to practise universally accepted values of judicial life, such as prohibition on close association with individual members of the Bar who practise in the same court as the judge and allowing family members who are members of the Bar to use the judge’s residence for professional work.

Law Commission Vice Chairman KTS Tulsi terms it a historic step, saying, “For the first time judges’ conduct is being defined by a statute.”
The proposed law is to replace the Judges (Inquiry) Act, 1968 that lays down procedure for removal of the Supreme Court and high court judges. But most importantly, it empowers the common man to file complaints against judges of the high courts and the Supreme Court.

The numbers game
Under the present system provided for in the Judges (Inquiry) Act, 1968, the process for removal of a judge can be initiated through a resolution either by 100 Lok Sabha members or 50 Rajya Sabha members.

After the MPs submit a duly signed motion to the Lok Sabha speaker or Rajya Sabha Chairman, the presiding officer constitutes a three-member committee to probe the allegations and determine if it is a fit case for initiating the impeachment process.

If the panel indicts the judge, the resolution for removal has to be passed by two-thirds majority in both Houses in the same session. The resolution is then sent to the President, who orders removal of the judge. The judge is given an opportunity to defend him/her.

While retaining the reference procedure, the Bill proposes to introduce a complaint procedure to empower the aam admi to file complaints against judges of the high courts and the Supreme Court.

It seeks to establish two authorities — a National Judicial Oversight Committee and a Scrutiny Panel — to investigate complaints against judges.

The Oversight Committee will comprise a retired Chief Justice of India as the chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The scrutiny panel shall comprise a former Chief Justice and two sitting judges of that court.

A Parliamentary panel on Law and justice is said to have recommended inclusion of one MP each from the Lok Sabha and the Rajya Sabha in the Oversight Committee.  Initial complaints will be made to the Oversight Committee, and they will be referred to the scrutiny panel constituted in the Supreme Court and in every High Court.

If the scrutiny panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee.

When the panel finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.

If the scrutiny panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to probe into the complaint. The probe panel will comprise three members. It will frame definite charges against the judge and shall communicate the same to the judge, who shall be given an opportunity to present the case, but if the judge chooses not to be heard, the proceedings may be heard without him present.

THE TAINTED GALLERY

THE TAINTED GALLERY

The Removal of a judge

If the Oversight Committee feels that the charges proved against the judge merit his/her removal, it shall request the judge to resign voluntarily, and if the judge fails to do so, it shall advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament, where the rest of the procedure is the same as the one in the case of a motion moved by MPs.

The Bill exempts documents and records of proceedings related to a complaint from the purview of the RTI Act, 2005 but the reports of the investigation committee and the order of the Oversight Committee can be made public. The tainted judges gallery

Why The Collegium stays

Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/High Court has to be appointed by the President after “consultation” with the Chief Justice of India (CJI). The government was not bound by the CJI’s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judge Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. Despite the UPA government criticising the collegium system, the Bill does not propose to change it.

Post-retirement carrots

During his speech on Sen’s impeachment, Jaitley said: “The desire of a job after retirement is now becoming a serious threat to judicial independence.” Tulsi also described it as a menace. “I agree with Jaitley that judges should not be given post-retirement jobs. If a statute requires a judicial person, a sitting judge can be appointed.”

The way forward

Prevention is better than cure. What is needed is a system that ensures only an honest person becomes a judge. If that happens, the occasion for removal of a judge may not arise.  Also, the collegium system must go, says former law minister Ram Jethmalani. “Setting up a National Judicial Commission is the only solution. The Commission must have the powers to appoint, transfer and remove judges,” he said.

He, however, said: “It should be a broad-based body comprising a government representative, the leader of the opposition and representatives of the judiciary, organised Bar, academic world and the world of social sciences.”

http://www.hindustantimes.com/Objection-your-honour/H1-Article1-738669.aspx