Judicial propriety in an age of scandal

 

Judicial propriety in an age of scandal

Judicial propriety in an age of scandal

ARGHYA SENGUPTA IN THE HINDU

Why Justice Dalveer Bhandari‘s election to the International Court of Justice while serving as a judge of the Supreme Court of India is an unhealthy development

Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.

Judiciary & government

The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”

It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).

Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.

Unheeded lessons from the past

It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.

What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.

Importance of propriety

In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.

For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.

The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.

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

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Reporting guidelines: Supreme Court expands scope of deliberations

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

A petitioner has pleaded the Supreme Court to frame guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

 NEW DELHI: The purview of the Supreme Court’s deliberations to frame guidelines for how media should report sub-judice matters, which arose from indignation over a news report on “leaked” privileged communication between the counsel of Sahara Real Estate Corporation and Sebi, has now been expanded to include related cases which had been pending in the apex court since 1999.

While hearing Sahara’s application, a five-judge bench headed by Chief Justice SH Kapadia had directed that “any party, who desires to make submissions in the matter, may do so by way of intervention”. This prompted several public spirited lawyers and organizations to intervene in the deliberations.

During the discussions, the court had appeared to narrow down the issue before it to a debate on the framing of guidelines for reporting of criminal trials to guard against violation of Article 21 guaranteeing right of an accused to reputation and dignity and to ensure that his trial does not get prejudiced, and the witness protection mechanism is not impacted.

However, on April 4, the court ordered inclusion of four more media guideline-related petitions, two of which were pending since 1999 and 2000, within the zone of consideration by permitting the parties involved to make submissions on “framing of guidelines for reporting of cases in media” when the matter is taken up for hearing on April 10. This at once broadened the scope of the exercise.

The issues raised in these four petitions include norms for news coverage in electronic media, norms and guidelines to minimize presentation of sexual abuse and violence on TV channels, contempt proceedings against journalists for publishing confessional statements of accused before police and making police liable for damages for tarnishing the reputation of an accused by releasing details of investigation into a case.

In Criminal Appeal No. 1255 of 1999 titled PUCL vs State of Maharashtra, the News Broadcasters Association had desired to intervene and assist the apex court on the issue of “what norms should govern news coverage by the electronic media”. On November 5, 2008, a bench headed by Justice Dalveer Bhandari had issued notices to all state and Union Territory governments.

The writ petition (civil) No. 387 of 2000 titled Common Cause vs Union of India last came up for hearing before the court in July 2009. The relief sought by the NGO was to “prescribe definite norms and guidelines for minimization of presentation of scenes of violence and sexual abuse in serials and programmes telecast by TV channels for avoidance of undesirable mental impact on the viewers, particularly children”.

In the transfer case 27 of 2011, NGO Anhad had sought initiation of contempt proceedings against two senior journalists for “publishing confessional statements of accused before police and thereby prejudicing or tending to prejudice the due course of judicial proceedings of those accused”.

Ban sought on cops leaking case information

Anhad had also sought a direction to the government to lay down guidelines “to be followed by both police and media regarding release of evidence or information and its publication against the accused claimed to be obtained by police during interrogation or investigation when the matter is sub-judice”.

The fourth petition included in the list was a writ petition filed by Dr Surat Singh in 2008 in the aftermath of media reporting of UP police’s version of the Aarushi murder case and the role of the accused. He had sought a complete ban on police leaking any information to media about pending investigations. He had also requested the court to make police officers personally liable for rushing to media and “making adverse comments or character assassination of an accused or his family members/friends or about the victim”.

Singh had sought framing of guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

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Journalists may soon need law degree to report on Supreme Court

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Print and electronic media journalists will also need to have at least 7 years and three-and-a-half years of experience, respectively

Nikhil Kanekal in The MINT

New Delhi: New Supreme Court reporting norms, if enforced, will result in 80% of the journalists who have been covering proceedings being disqualified. The Supreme Court can bar any correspondent from coverage without offering any reasons under the new rules.

Issued by the court on Saturday, the norms require that permanent and temporary accredited print journalists have a professional law degree and at least seven years of experience. Electronic media reporters need, apart from the law degree, at least three-and-a-half-years of experience. The circular did not set a deadline for the norms to come into force. Court officials didn’t throw light on when the circular would come into effect, when asked on Tuesday.

The new norms follow instances in which faults were found in coverage.

Two of these arose from coverage of the Vodafone tax dispute. Vodafone lawyer Harish Salve complained to the Supreme Court that a Press Trust of India (PTI) report on 10 August had misquoted him. Salve had argued that Vodafone could “avoid” tax as tax avoidance was permissible under law. Indian income-tax authorities have alleged that Vodafone evaded tax by structuring its $11.2 billion transaction to buy out Hutchison’s Indian cellular business through tax-saving routes. Salve spent more than a day demonstrating to the bench the difference between tax avoidance and evasion, and that his client had acted in accordance with law.

The court sought a response from PTI on an application made by Salve after the agency’s report.

On 18 August, PTI’s lawyer Shyam Divan issued an unconditional apology to the court, Vodafone and Salve.

Chief Justice S.H. Kapadia’s three-judge bench asked PTI to file a detailed affidavit explaining whether its reporter was present in the court at the time Salve made his argument. The court reportedly observed that norms for journalists needed to be revisited in light of the incident and what it said were other recent inaccurate reports.

Previously, Kapadia had expressed displeasure at a 15 December news report in a national daily that said the judiciary wanted to retain 1% of the Rs. 2,500 crore deposit made by Vodafone to the court’s registry. The report suggested that a “cash-strapped” judiciary was trying to source funds from “novel” methods such as these. Kapadia had then said: “People write whatever they want.” But the court did not initiate any action against the reporter or the newspaper.

Different benches of the court have, in the past, pointed to inaccurate or sensational news reports. However, Mint could not immediately ascertain the immediate reasons for the revision of the norms.

A.I.S. Cheema, secretary general of the court, the senior-most official on the administrative side, did not have time to meet this reporter on Tuesday for clarity on reasons for revising the norms.

The court’s media officials said reporters could make representations that would be forwarded to decision makers.

Justice Dalveer Bhandari, the Supreme Court judge in charge of granting accreditation to journalists, could not be reached on phone. His staff said he would not be available to comment till later this week.

A media law expert said India has an open court system that inspires confidence among people on the judiciary’s functioning.

“In India, unlike in the US, the press has no independent right under the freedom of expression. The journalist exercises his right as a citizen of this country under Article 19 (1)(a) and also acts as a trustee of the public’s right to know. In certain situations, he might get more access than others, but technically under our open court system that shouldn’t be necessary,” said the expert, who did not want to be named.

“Everyone can have access as it’s meant to be a check on the judges. It’s a check on the system. What is to stop me if I go into a court as lay person and write about something which I think is worthy of sharing with the public? As long as I’m not distorting the proceedings, there should be no problem,” this person said.

The Supreme Court has expressed its appreciation for the role played by the press in its annual reports. “Supreme Court attached great importance to the role of media and complementary to that of judicial organ in a democratic polity. In order to strengthen this partnership, the court took certain initiatives for mutual benefit,” said the 2008-09 report as it elucidated programmes organized by it to train court correspondents.

A February 2002 report in Frontline magazine cited a Supreme Court judgement that contained a defence of the freedom of the press. “Public trial in open court is undoubtedly essential for the healthy objective and fair administration of justice. Trial held subject to public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity and impartiality of the administration of justice.”

There are currently 14 permanent accredited correspondents in the Supreme Court and approximately 80 temporary accredited journalists, according to the court’s officials.

Editors react

Newspaper and television editors said the requirement for a law degree might be excessive and that the unilateral provision in the norms to withdraw a journalist’s accreditation was not desirable.

“Reporters need not have a law degree to report on the Supreme Court. They need to have strong news sense and an acquaintance of legal nuances,” said Arnab Goswami, editor-in-chief, Times Now.

“The new norms seem overly restrictive and will make it more difficult for the media to cover the Supreme Court properly,” said Siddharth Varadarajan, editor of The Hindu. “While I share the concerns of the honourable judges that court proceedings are sometimes not reported accurately, the solution lies in proper editorial supervision by our newspapers and TV channels, rather than by specifying, with mathematical precision, the onerous qualifications court reporters must possess in order to be given access to a court room.”

“In the absence of access, there may actually be a greater likelihood of inaccurate reporting as journalists will be forced to rely on one-sided accounts of courtroom proceedings by lawyers representing their clients,” he said.

Sanjay Gupta, editor, Dainik Jagran, published by Jagran Prakashan Ltd, said: “As an editor, I will anyway not hire a fresher to report on Supreme Court judgements. However, I don’t think there should be a prerequisite for reporters to have a degree in law. If reporters have adequate experience and are reporting judgements intelligently, and if the editors don’t have an issue, I don’t think it’s fair for the court to then have stringent norms.”

“I don’t want to comment much on the revised norm to withdraw the accreditation without giving any reason. Withdrawal of accreditation should be a bilateral dialogue between the authority and the newspaper. The editors have a right to know when a particular legal correspondent’s accreditation is withdrawn,” he added.

Abhilasha Ojha contributed to this story.

Lessons in equity

Supreme Court of India

V. VENKATESAN in New Delhi  – FRONTLINE

The Supreme Court enunciates the virtues of state intervention in ensuring equity in higher education.

THE Supreme Court, in a recent case, examined the question of equity in higher education in India and laid out certain principles that could be relevant in every field of education. The case, Indian Medical Association vs Union of India, related to the Army College of Medical Sciences (ACMS), Delhi Cantonment, devising in 2008 its own admission procedure for the first year MBBS course from a predefined source carved out by itself and its parent society, the Army Welfare Education Society (AWES). The college sought to admit only students who are wards or children of current and former Army personnel and widows of Army personnel.

Students who otherwise would have been eligible for admission challenged the policy in a slew of writ petitions. The Indian Medical Association (IMA) also challenged it. The ACMS is recognised as a private, unaided, non-minority professional institution. According to a judgment of the Supreme Court’s Constitution Bench in TMA Pai Foundation vs State of Karnataka, which was further explained in P.A. Inamdar vs State of Maharashtra, all admissions to private, unaided, non-minority professional institutions should be based only on merit, which is to be taken as inter-se ranking of all students who have taken a common entrance test.

The ACMS’ admission policy was based on the belief that the wards of Army personnel suffer educational disadvantages compared with the civilian population and that this affects the morale of Army personnel. And it reserved 100 per cent of the seats for the wards of Army personnel. The Delhi government erroneously approved this policy. The Delhi High Court, where the petitioners first challenged the policy, too found nothing wrong with it.

The Supreme Court Bench comprising Justices B. Sudershan Reddy and Surinder Singh Nijjar, however, found that the ACMS’ admission policy set at naught the legislative intent in the Delhi Act 80 of 2007 to ensure excellence by mandating that all admissions be made on the basis of inter-se merit within each of the categories of students. The Delhi government’s permission to the ACMS to admit students who may have scored lower marks than others, both within the general category and in the reserved categories, resulted in the defeat of this legislative intent, the court reasoned in its order of May 12.

The Bench held that neither the AWES nor the ACMS was protected by any constitutional provision that allowed it to choose to be an educational institution serving only a small class of students from within the general pool. If indeed Army personnel now constituted a “Socially and Educationally Backward Class”, then under Clause (5) of Article 15, it was for the state to determine the same and provide for reservation to wards of Army personnel, the Bench suggested.

In the case of minority educational institutions, the state can relax its concern for merit on account of Clause (1) of Article 30, provided minority educational institutions maintain their minority status by admitting mostly minority students except for a sprinkling of non-minorities. With respect to non-minority educational institutions, the state can relax such concern for merit only with respect to reservation of seats for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes (SEBCs) as enabled by Article 15(5). Consequently, the Bench held that the choice of students by non-minority educational institutions could only be from the general pool with respect to non-reserved seats. They could not make further distinctions of their own accord, it said.

In the Mandal II case (2008), the Supreme Court left open the question whether the newly inserted Article 15(5) of the Constitution applied to private unaided non-minority educational institutions. This provision, inserted in 2006 by the United Progressive Alliance-I government, enables the state to make any special provision, by law, for the advancement of the SEBCs or the S.Cs or the S.Ts in the matter of admission to educational institutions, including private educational institutions, whether aided or unaided, other than minority educational institutions. The court left this issue open because none of the private, unaided, non-minority institutions had challenged the validity of this provision.

Justice Dalveer Bhandari, however, dissented from the other four judges of the Bench, holding that the imposition of reservation on non-minority unaided educational institutions was an unreasonable restriction on the freedom granted by Article 19(1)(g) to practise any profession or to carry on any occupation, trade or business.

In the IMA case, however, the court had an opportunity to examine this issue because counsel for the ACMS challenged the validity of Article 15(5). The Reddy-Nijjar Bench differed with Justice Bhandari and considered the inclusion of Clause 5 of Article 15 by the 93rd constitutional amendment as of great significance. “It clearly situates itself within the broad egalitarian objectives of the Constitution. In this sense, what it does is that it enlarges as opposed to truncating an essential and indeed a primordial feature of the equality code,” the Bench explained.

The Bench justified reservation as it is social circumstances that prevent some individuals from performing to their full potential and thereby competing on a level playing field with those who might satisfy the “desert based” criteria. The Bench disagreed that the principles enunciated in the Mandal II case – that egalitarianism was an intrinsic part of our equality code with respect to the field of education – could be limited to public and aided institutions.

What followed in the judgment was a brilliant articulation of the dangers of LPG – liberalisation, privatisation and globalisation. Agreeing that the extent of the state’s involvement in the field of higher education had dramatically declined on account of its financial position, the Bench linked this fact to the increasing privatisation and liberalisation of the economy. One of the essential elements of privatisation has been the demand of the private sector that the state reduce its deficits, even as tax rates were cut, by reducing its involvement in various social welfare activities. This, according to the Bench, has had an impact on the ability of the state to invest as much as it should have in education, including higher education.

The Bench explained that the burden of the state comprised not merely financial outlays. The burden of the state, it said, also comprised the positive obligations imposed on it on account of the egalitarian component of the equality code, the directive principles of state policy, and the national goals of achievement of an egalitarian order and social justice for individuals and amongst groups that those individuals are located in. “One cannot, and ought not to, deem that the ideologies of LPG have now stained the entire constitutional fabric itself, thereby altering its very identity,” the Bench observed.

Test of merit

The Bench’s reasoning against qualifying examinations or common entrance tests must wake society up. The test of merit, based on some qualifying examinations or a common entrance test, is prone to rewarding an individual who has a better family life, social exposure, and access to better schools and coaching classes, it suggested. The Bench cautioned that complete dependence on such tests would foreclose the possibility of individuals in the disadvantaged groups from gaining access to a vital element of modern life that grants dignity to individuals, and thereby to the group as a whole, both in this generation and in future generations. Therefore, the Bench held, the proper construction of Article 15(2) would in fact be to prohibit complete dependence on such context (social and educational backwardness) insensitive tests.

Under Article 15(2), no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.

Reservation based on social and educational backwardness, the Bench said, would promote the selection of those who were truly meritorious in each group on account of their demonstrated ability to be in the higher rungs of achievement within comparable situations of life’s circumstances and disadvantages.

Therefore, it held that clause 5 of Article 15 strengthened the social fabric in which the constitutional vision, goals and values could be better achieved and served. The provision, the Bench suggested, could be likened to a necessary replacement and in fact an enhancement in the equality code so that it made the Constitution more robust and stable.

Pointing out that nearly 85 per cent or more of all engineering seats and about 50 per cent in the field of medicine are in the private sector, the Bench said the number of aided and government colleges in other fields had just not kept pace with the private sector. It asked: “If a vast majority of our youngsters, especially those belonging to disadvantaged groups, are denied access in the higher educational institutions in the private sector, it would mean that a vast majority of youngsters, notwithstanding a naturally equal distribution of talent and ability, belonging to disadvantaged groups would be left without access to higher education at all.” The Bench added that it would constitute a state of social emergency with a potential for conflagration that would be on an unimaginable scale.

The Bench concluded: “The rights of non-minority educational institutions to admit students of their choice, …if exercised in full measure, would be detrimental to the true nature of education as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems….”

The Bench thus held Article 15(5) and the provisions of Delhi Act 80, with respect to the various categories of reservation provided therein, to be constitutionally valid. The judgment, authored by Justice Reddy, reflects his judicial philosophy, which is also evident in his other judgments against globalisation and marketisation. Observers feel that the Supreme Court’s three-judge Bench currently hearing a case by some unaided private schools challenging the validity of the Right to Education Act will find the principles laid down by Justice Reddy relevant in deciding it.

http://www.frontlineonnet.com/stories/20110729281503700.htm