LAW RESOURCE INDIA

Law-making Amid Moral Outrage

Posted in CHILD RIGHTS, JUVENILE JUSTICE, UNCATEGORIZED by NNLRJ INDIA on December 31, 2015

Editorial Article Published in the Hindu

Legislators acting in response to moral outrage seen on television and during street protests and being apparently influenced by the importunate gaze of victims of crime from the gallery, does not augur well for sound law-making. It may not be right to characterise the quick passage of the Juvenile Justice (Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already been passed in the Lok Sabha in May 2015. The draft too had been slightly modified before that, based on a February 2015 report of a standing committee of Parliament. Yet, it is difficult to overcome the impression that some members may have been gripped by a bout of moral panic after the release of the youngest convict in the Delhi gang rape of December 2012. The seeming sense of urgency was undoubtedly influenced by a section of the media demanding ‘justice’ after the convict was released from a Special Home on completing his three-year term there. An impression is sought to be created that the country’s collective conscience demanded that a tough law be enacted to ensure that juvenile convicts committing heinous crimes do not get away with light sentences. An edifying aspect of this legislative episode is that there are enough voices around that understand that restorative justice is best ensured for this underclass by addressing the fundamental problems that create juvenile offenders in society in the first place, by ensuring universal access to education and social care for all children.

law makingThe Bill, which contains progressive aspects such as streamlining adoption procedures and extending the law’s protection to orphans and abandoned children, still suffers from the problems highlighted by the parliamentary panel. The government, unfortunately, did not accept the view that children in a particular age group being subjected to the adult criminal justice system will violate their right to equality under Article 14 and the objective of protecting children in Article 15(3) of the Constitution. It, however, dropped a clause that provided for treating those who had committed crimes before reaching the age of 18 but were apprehended after they turned 21, agreeing that it was unconstitutional. It extended the period of preliminary assessment (the original draft called it ‘inquiry’) by the Juvenile Justice Board to determine whether a juvenile offender should be sent for rehabilitation or tried as an adult, from one month to three months. The board’s assessment will still be subject to judicial review and may set off litigation over whether one 16-year-old was let off lightly or another was wrongly sent to an adult court. Such decisions may also be influenced by the prevailing public mood. It would have been wiser to have let the law stand in conformity with the UN Convention on the Rights of the Child, which advocates equal treatment of all children under the age of 18. The difference between sober assessment and mercurial action cannot be more starkly emphasised.

Change must respect basic structure

Posted in DEMOCRACY, FUNDAMENTAL RIGHTS, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

Upendra BaxiBY UPENDRA BAXI PUBLISHED IN THE  INDIAN EXPRESS

The relationship between “democracy” and “secrecy” has always been debated, and it has been highlighted by the system of judicial appointments. The proposed judicial appointments commission (JAC) seeks to partly answer that question. Under review is the judicial collegium method of appointments, in use since the 1990s (which consists today in the supremacy of five senior-most justices of the Supreme Court, including the chief justice of India), as against the constitutional method in place between the 1950s and the 1990s (where the executive nominated candidates in consultation with the CJI and such other justices as it deemed fit).

Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.

In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change?

Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice Markandey Katju’s recent expose suggests that the CJI is vulnerable to alleged manoeuvring by the prime minister’s office. The justices in the judges cases seemed to think so, given that they accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of five justices.

To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments and transfers, and contemplated a slew of measures on judicial standards, accountability, non-impeachment offences and transparency of the judicial process. The new government is espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister to say that he had justices in his pockets; this is no longer the signature tune of modern governance. Rather, the state now wants a JAC that would avoid the vices of politicians appointing judges, and of the justices appointing their own.

This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till 2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of the Supreme Court members, provided a

process to identify two eminent citizens, and finally culminated in the 120th constitutional amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred, the Law Commission’s report and other reports make compulsory, if dull, reading on this vexed subject.

In a consultation with eminent jurists convened by the Union law minister on July 28, while most went to the extent of saying that the judicial collegium had failed and agreed that the system of appointments needed to be changed, all the “jurists” endorsed the “dominance” of the CJI and his senior companions. If the advice of the CJI and his companion justices is to have an “edge” or “dominance”, how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?

A greater fundamental difficulty is posed by the basic structure doctrine. I have previously argued in these pages (‘Just governance’, IE, June 10) and at a New Delhi consultation that the best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill, considering whether abolition of the judicial collegium offends the basic structure and if it does, how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it clear that the matter can only be settled in a judicial opinion; since the judges cases were decided judicially, no question arises of a mere administrative order by the court.

The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court.

The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has “failed” the nation. Since almost all the leaders of the Bar believe that the judicial collegium has “failed” in drawing the best and brightest to become justices, they should have little difficulty in persuading the court.

The argument against an advisory opinion is that it would take undue time. But the 2G reference was relatively expeditiously disposed; the non-collegium justices would be justified in accelerating the opinion. In any event, the time taken for the reference will be democratically well-invested. The alternative of an adversarial proceeding, where the court may continue via a stay order to make appointments and transfers, scarcely advances the cause. Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

Why India needs democracy

Posted in DEMOCRACY, FUNDAMENTAL RIGHTS, JUSTICE by NNLRJ INDIA on November 26, 2011
Sansad Bhavan, parliament building of India.

Image via Wikipedia

JUSTICE MARKANDEY KATJU IN THE TIMES OF INDIA

What is our national aim? To my mind, our national aim must be to make India a highly prosperous country for its citizens, and for that it is necessary to have a high degree of industrialization.

Even setting up and running a single primary school requires a lot of money, e.g. for buying land, erecting the school building and providing for the recurrent expenditure for salaries of teachers, staff, etc. We have to set up in our country not just one primary school, but hundreds of thousands of primary schools, tens of thousands of high schools and colleges and engineering colleges, technical institutes, medical colleges, scientific research centres, hospitals, libraries etc.

Where is the money for all these to come from? Money does not fall from the sky. It can only come from a highly developed industry, and it is industrialization alone which can generate the wealth we need for the welfare of our people. Today India is a poor country. Nobody respects the poor. It is for this reason that we do not have much respect in the world community (whatever we may think of ourselves). One proof of this is that we are not given a permanent seat in the U.N. Security Council, although we have a population of 1200 million, whereas Britain and France with populations of 60 million each have permanent seats.

It is industrialization alone which can abolish poverty and unemployment, which are the main causes of crime and terrorism, and get us respect in the world community. Also, when there is rapid industrialization, which should be our national target, millions of jobs will be created which will solve the problem of unemployment. For industrialization, development of science is absolutely necessary, and for that freedom is also absolutely necessary, freedom to think, freedom to write, freedom to discuss with others, freedom to explain, freedom to criticize and freedom to dissent.

The growth of science requires certain supportive values, particularly liberty. This is because the thought process cannot develop without freedom. The values of a scientific community viz., pluralism, tolerance, individual freedom and free flow of information are very similar to the values of a democratic society (see ‘Science and the Making of the Modern World’ by John Marks).

A democratic society permits freedom of speech and expression, freedom to practice one’s own religion, which is based on tolerance, and freedom to dissent and criticize. These are precisely the values of a scientific community. In other words, in scientific matters authoritarianism and dogmatism are wholly out of place. Scientists must be largely left free to govern themselves, and have large amount of freedom which is necessary for innovation and creativity. Hence, democracy and liberty go hand in hand with the growth of science because both are based on tolerance, individual freedom and free flow of ideas. In democracy, as in a scientific community, there is freedom to speak, freedom to discuss, freedom to criticize and freedom to dissent.

Justice Louis D. Brandeis, of the U.S. Supreme Court in Whitney vs. California 274 U.S. 357, writing in 1927 observed:

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed”

Similarly, Justice William O. Douglas in Terminiello vs. Chicago 337 US 1 (1949) observed: “….[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest… There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups”.

In our own country, in ancient times the method of Shastrarthas had been developed. These were debates in which the thinkers of those times had full freedom to speak and to criticize their opponents in the opponent’s presence, and also in the presence of a large assembly of people. There are hundreds of references to such Shastrarthas in our epics and other literature. It was this freedom to freely discuss and criticize in ancient India which resulted in tremendous growth of knowledge even in such ancient times, including not only in philosophy, grammar law, etc. but also scientific knowledge, e.g. mathematics, astronomy, medicines, etc. The names of Aryabhatt, Brahmagupta, Bhaskar, Sushrut and Charak are known to all. With the aid of science we had built mighty civilizations e.g. the Indus Valley Civilization when people in Europe were living in forests.

In this connection, we may also mention about modern European history. England was the first country in the world to industrialize and modernize. This economic process was accompanied with the political struggle for liberty and democracy in the 17th and 18th centuries, which was particularly a struggle between the King and Parliament. As we all know, Parliament won, and this laid the foundation of freedom and civil liberties in England, which was necessary to create the atmosphere which science requires to prosper.

Similarly, in France, before the French Revolution of 1789, the thinkers of the Enlightenment — Rousseau, Voltaire, Diderot, Holbach, etc. who attacked feudalism and religious dogmatism paved the way for the Revolution of 1789 which destroyed feudalism, and led to scientific progress. On the other hand, in Italy, Spain and some other countries the Inquisition stifled free thinking and thereby scientific growth. All scientific ideas which were not consistent with the Bible were regarded as crimes e.g. the theory of Copernicus which stated that the earth moved around the sun and not the sun around the earth. As a result, these countries were left far behind England and France, and remained in the feudal dark ages for centuries.

The struggle to establish the scientific outlook was not an easy one. Scientific ideas initially were condemned because they were regarded as opposed to religious dogma. Voltaire and Rousseau had to fly for their lives to other countries. The Church persecuted the greatest scientists with blind cruelty, burning them at the stake (e.g. Bruno), torturing them (e.g. Galileo), and forbidding or destroying their works. As recently as in 1925 the teaching of Darwin’s theory of evolution was forbidden in the state of Tennessee in U.S.A., and a teacher John Scopes was tried in the famous ‘Monkey Trial’ for teaching that theory. For centuries the Church in Europe played an extremely reactionary role and fought pitilessly against the scientific conception of the world, and against the democratic movements. In India, if we are to progress and rise as a world power, we have to spread the scientific outlook to every nook and corner in our country, and destroy superstitions, e.g. the belief in astrology and palmistry, and the feudal ideas of casteism and communalism.

Science is that knowledge by which we can understand nature (and human society) and use this knowledge for our benefit. For doing so, the scientists rely on reason, observation and experiment. This obviously cannot be done on the dictates of anyone (though the government can certainly create the atmosphere where these can flourish). Science and democratic values go hand in hand.

In science, there is no final word, unlike in religion. Science questions everything and does not take anything for granted. Obviously, this approach is not permitted in an undemocratic society, e.g. feudal society (which is governed by religion) or fascist society (in which there is a dictator). Thus, Hitler, with his Nazi racial philosophy, caused an enormous setback to science in Germany by persecuting Jewish scientists and banning their works (e.g. Einstein).

Indeed, in India, after the Constitution was adopted in 1950, there was an atmosphere of liberal freedom in view of the fundamental rights guaranteed by the Constitution e.g. the right to free speech (Article 19), liberty (Article 21), equality (Articles 14 to 17), religious freedom (Article 25), etc. This helped growth of science and technology in our country, because it created an atmosphere of freedom where people including the scientists, could freely discuss and dissent. If we compare our country with the neighbouring countries, there were no such freedoms in those countries and hence those countries lagged far behind in economic growth.

Apart from the above, the advanced sections of society who want to take the country forward, and have the knowledge to do so, must have a lot of freedom to discuss, debate and criticize each other. They are the pioneers and are often entering into a new field, much of which is unknown. Hence, they must have freedom to think, discuss and criticize.

As pointed out by John Stuart Mill in his celebrated essay ‘On Liberty’, all progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc. which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. As pointed out by Mill, in any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress. The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e. majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that scientific progress can take place.

As Justice Oliver Wendell Holmes of the U.S. Supreme Court in his dissenting judgment in Abrams vs. United States, (1919) observed : “…The best test of truth is the power of the thought to get itself accepted in the competition of the market…”

The importance of the judiciary in India in this connection must also be highlighted in this country. In this connection reference may be made to two decisions of the Supreme Court delivered by me viz., Govt of A.P. and others vs. P. Laxmi Devi [2008 (4) SCC 720, JT 2008 (2) 639 and Deepak Bajaj vs. State of Maharashtra and others [JT 2008 (11) SC 609]. In these cases, I emphasized the importance of liberty for progress, and have observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism. I have also in my judgments spoken out against honour killing, fake encounters, dowry deaths, etc. India needs democracy and scientific knowledge, and that means patiently spreading scientific ideas amongst the vast masses, raising their cultural level and involving them actively in the task of nation building.

To my mind, harsh and draconian laws will curb liberty, and that will not only violate the right to liberty granted by Article 21 of the Constitution, but will also lead to great evils e.g. increase in corruption in the police and other law enforcing agencies, which will have much more opportunities to extort money from the citizens, apart from impeding scientific and economic growth, which is vital for our country.

I have gone into some detail on this subject because I wished to clarify that I am a strong votary for liberty and have been misunderstood. However, liberty cannot be equated with licence to do anything one wishes. Should one be given the liberty to spread superstitions, to fan caste/or communal hatred, or put over emphasis on film stars, pop music, fashion parades and cricket in a poor country like ours? I think not. All freedoms are coupled with responsibilities, and no freedom is absolute. It is for this reason that I believe that while ordinarily issues relating to the media should be resolved by the democratic method of discussion and dialogue, in rare and exceptional cases (which may not be more than 5 per cent) harsh measures may be required, but that too not by the government but by any independent statutory authority e.g. the Lokpal.

(Justice Markandey Katju is the Chairman of Press Council of India)

http://timesofindia.indiatimes.com/home/opinion/edit-page/Why-India-needs-democracy/articleshow/10857038.cms

Checking on the House

Posted in CONSTITUTION, DEMOCRACY, FUNDAMENTAL RIGHTS, JUSTICE by NNLRJ INDIA on April 25, 2011
Indian Parliament Building Delhi India

Image via Wikipedia

ARUN JAITELY IN THE INDIAN EXPRESS

Middle-class cynicism is frequently directed against the functioning of Indian democracy, political parties and Parliament. An impression that all politicians are dishonest and that Parliament is only disrupted, however erroneous, has caught the public imagination. The truth is to the contrary.

The Indian Parliament has evolved over the last six decades. There would be no better system to suit Indian conditions than parliamentary democracy. A country with diverse opinions, regions, religions, communities and tribes can find no system better than the present one where all sections of society and shades of opinions become a part of the parliamentary decision-making process. The feeling of involvement and inclusion is the strength of the Indian Parliament.

One of the greatest challenges before Indian democracy is to curb the use of money power in elections. Sixty-four years after Independence we have still not been able to evolve a transparent mechanism for funding politics. This certainly lowers the credibility of our parliamentary democracy.

Parliament is a forum where governments are held accountable through questions, motions and debates. It is an empowered forum for legislation. It is the appropriate forum where issues of public concern and importance are raised. Conventions have a very important role in parliamentary functioning. Thus, knee-jerk reforms have to be avoided. What we must lean in favour of is the strengthening of established institutions and conventions. Changes must be well-thought-out, debated and then implemented on the strength of consensus. The establishment of department-related standing committees is one of the key reforms that Parliament has evolved in recent years. Standing committees deal with raw legislation drafted by the government. They hear various stakeholders, they examine each clause almost word by word. Contentious legislations are scrutinised by standing committees for months together. The strength of a standing committee is its predominant non-partisan functioning. There are no whips and no public gaze. Members belonging to the same party can express contrary viewpoints. The maturity of the Indian Parliament is evident from the fact that most reports of the department-related standing committees on legislation are unanimous. Occasionally, there are dissenting notes. It has been suggested that the committees should now be subjected to the public gaze and even telecasting be permitted. However populist the measure is, I would hate to jump to any hasty conclusion at this stage. The committee system has evolved over the last two decades. The standing committee system should be allowed to mature before we move to the next step.

The biggest weakness of the Indian Parliament is the lack of long duration. India’s population is growing; so are the problems. To meet for less than 70 days in a year is inadequate. Short durations lead to paucity of time available for debates, issues of public importance and legislation. When members, particularly from the opposition, want to raise several issues, the privilege is denied for paucity of time. The gagging of debate leads to obstructionism. Parliamentary obstructionism then becomes an acceptable mode to highlight an issue of public importance. More time is lost. Legislations are then cleared in haste in order to cover up the backlog. There have been suggestions in recent years to legislatively provide for a minimum 100 days’ session every year.

However, the duration may have to be enhanced a lot more. Similar reform is required in the states where the number of days of each assembly is being curtailed. Many governments find parliamentary accountability inconvenient and hence resort to shorter sessions. State assemblies are now meeting for 20 to 50 days a year. This flaw needs to be corrected.

A parliament is judged by the quality of its debates. Live telecast of Parliament, even as a substitute for adequate print media reportage, has incentivised members to prepare better and conduct themselves properly. In times to come, the quality of performance of an MP on the floor of the House will impact the prospects of returning in the next elections. His performance in the House has to be a relevant consideration in how his constituents judge him. In the last few decades the participation of prime ministers in parliamentary debates has declined. Their effective intervention is confined to reading written texts prepared by their offices. This is unacceptable. Even on the Prime Minister’s Question day it is the minister of state in the PMO who responds to most questions. The prime minister is the chief executive in a parliamentary democracy. He must be the most accountable executive. He cannot be accountable through a proxy system. It is, therefore, important that prime ministerial accountability in a democracy through parliamentary procedures is strengthened. In Britain, the system of Prime Minister’s Questions (PMQ) has successfully evolved over the years. Every Wednesday morning the PM faces impromptu questions in the House of Commons. Short questions with crisp and direct answers render the Wednesday morning thriller before television audiences. People judge the PM by the content and the quality of his responses. Opposition leaders and other members are judged by the quality of their intervention. The PM has to be the most accountable in a democracy. His depleting presence in Parliament compels one to suggest that the PMQ be successfully replicated in India. It will add to the quality of debate, a popular interest in Parliament, restoration of faith in India’s parliamentary democracy and certainly be the most effective mode of exercising one’s right to know.

The government and the opposition both have a key role to play in Parliament. Conflicting opinions and at times even tensions between the two bring out the best in Indian democracy. However, there must be healthy communication between the political leadership in government and the opposition. Of late, there is a decline in this consultation. The initiative for this consultation must come from the government. This consultation has to be real rather than formal. It is for the government of the day to consider whether the decline in this consultation is deliberate or attributable to the introvertish character of the UPA’s political leadership.

The anti-defection law emphasises the rigidity of the whip. A whip regulates the house. It enforces political discipline on members of a political party. The whip should be confined merely to voting. It should not regulate the content of the debate. The debates must be thought-provoking, buoyant and based on ingenuity. That will add to the strength of Indian democracy.

The writer, a BJP MP, is leader of the opposition in Rajya Sabha, express@expressindia.com

http://www.indianexpress.com/news/checking-on-the-house/780826/0

Establishing circuit benches can help reduce the burden

Posted in ACCESS TO JUSTICE, CONSTITUTION, COURTS, DEMOCRACY, FUNDAMENTAL RIGHTS, SUPREME COURT by NNLRJ INDIA on May 13, 2010
Somnath Chatterjee, Former Speaker, Lok Sabha  IN THE ECONOMIC TIMES
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

It is not just a question of the Supreme Court (SC) needing to shed some of its works. It is a question about how the functioning the entire legal system can be improved to make it serve the real purpose of a judiciary in the country, particularly to deliver speedy justice to the ordinary people at an affordable cost.

So far as the SC is concerned, we need to introspect whether ordinary citizens are really able to approach the apex court, given the geographical distance from different corners of the country, the problem of finding accommodation and the arduous process of engaging a good lawyer in Delhi. Ordinary citizens cannot dream of approaching the SC.

So, the inevitable question: is this the situation that was contemplated by the founding fathers of our Constitution? Every person concerned with judiciary should give a serious thought to this problem.

Recently, the prime minister said speedy justice should be provided to ordinary citizens at an affordable cost. But the situation today is such that only the rich, corporate or ‘some people with sponsors’ can approach the apex court. I have the highest respect for the SC. But, to my mind, to provide real justice to ordinary people at the apex court, it is essential to set up circuit benches in different parts of the country. The usual argument against it was that it will bifurcate/trifurcate the SC itself and diminish its authority and status. Such an argument must be rejected. Question can never be of all learned judges sitting at the same place but, dispersing justice to the litigants, including ordinary citizens, in an appropriate manner.

I was asked whether it was necessary to curtail the SC’s jurisdiction to only very important issues and not burden it with ordinary litigation, including appeals. I feel 2-3 SC judges could constitute the circuit benches and dispose of the appeals at different centres in their capacity as SC judges, making their judgements final. The Chief Justice of India will remain in Delhi with other learned judges who would decide on issues of constitutional importance or of great national importance — those cases that may be so designated by the bench in Delhi or other circuit benches.

I am not suggesting this is the only method that can be applied. But at least serious thought be given and action taken to ensure speedy and efficient justice for common man at reasonable cost. Also, identifying maladies and then expecting changes will happen on their own will not do. I had the privilege of seeing the first bench of SC functioning at Parliament building. They had the most difficult judicial work to do in the formative years after Independence and the constitution of the SC. Yet, they have delivered judgements that have endured forever.

The problems that have cropped up today are not due to the increase in the number of litigation with population growth. But one needs to examine what types of litigation before the SC that have multiplied and what innovation has been introduced. Also, we need to consider whether enlargement of the scope of litigation in different high courts and Supreme Court have caused proliferation of litigation.

http://economictimes.indiatimes.com/opinion/et-debate/Establishing-circuit-benches-can-help-reduce-the-burden/articleshow/5924122.cms

Legislation to Avoid Custodial deaths

Legislation to avoid Custodial deaths


17:33 IST
The number of custodial deaths reported to the National Human Rights Commission during the last three years are as follows:

Year                            Custodial deaths

2007-2008                               2267

2008-2009                               1943

2009-2010                               1794

The State-wise details are as under :-

Sl. No. NAME OF STATE & UTs YEAR
2007-08 2008-09 2009-10
1. ANDAMAN & NICOBAR 0 1 0
2. ANDHRA PRADESH 143 149 116
3. ARUNACHAL PRADESH 1 3 1
4. ASSAM 31 38 21
5. BIHAR 231 142 142
6. CHANDIGARH 2 5 3
7. CHHATISGARH 48 42 44
8. DADAR & NAGAR HAVELI 1 1 0
9. DELHI 63 44 43
10. GOA 0 2 1
11. GUJARAT 71 97 68
12. HARYANA 69 60 45
13. HIMACHAL PRADESH 4 7 6
14. JAMMU & KASHMIR 8 1 4
15. JHARKHAND 81 63 80
16. KARNATAKA 82 77 35
17. KERALA 62 45 50
18. MADHYA PRADESH 108 93 96
19. MAHARASHTRA 384 270 223
20. MEGHALAYA 3 4 3
21. NAGALAND 2 3 2
22. ORISSA 57 58 48
23. PONDICHERRY 2 2 2
24. PUNJAB 112 78 112
25. RAJASTHAN 59 64 84
26. SIKKIM 2 0 2
27. TAMIL NADU 111 80 77
28. TRIPURA 5 8 2
29. UTTAR PRADESH 356 330 364
30. UTTARAKHAND 20 14 16
31. WEST BENGAL 149 162 104

TOTAL

2267 1943 1794

A Bill titled “The Prevention of Torture Bill, 2010” has been introduced in Lok Sabha on 26/4/2010. The Bill, inter alia, provides for  punishment to those involved in the incident of torture and specifies the time limit for taking cognizance of the offence of torture. The bill would act as a deterrent for Public Servants from indulging in custodial deaths and abuse of power by police authorities.   This was stated  by the Minister of State in the Ministry of Home Affairs, Shri Ajay Maken in written reply to a question  in the Rajya Sabha  today.

“Governors owe their allegiance to Constitution”

Posted in CONSTITUTION, DEMOCRACY, LEGISLATURE by NNLRJ INDIA on May 8, 2010

FROM THE HINDU

A Governor is not an agent or employee of the Union government who can be arbitrarily removed by the Centre during change of party in power, the Supreme Court held on Friday. A Constitution Bench headed by the Chief Justice of India K.G. Balakrishnan said: “the doctrine of pleasure [under Article 156 of the Constitution] is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.” The Bench was disposing of a writ petition filed as a public interest litigation in the wake of the removal of the Governors of Uttar Pradesh, Gujarat, Haryana and Goa on July 2, 2004 by the then President of India on the advice of the Union Council of Ministers.

The Bench said:

“In the early days of Indian democracy, the same political party was in power both at the Centre and the States. The position has changed with passage of time. Now different political parties, some national and some regional, are in power in the States. Further one single party may not be in power either in the Centre or in the State. Different parties with distinct ideologies may constitute a front, to form a government. “On account of emergence of coalition politics, many regional parties have started sharing power in the Centre. Many a time there may not even be a common programme, manifesto or agenda among the parties sharing power. As a result, the agenda or ideology of a political party in power in the State may not be in sync with the agenda or ideology of the political parties in the ruling coalition at the Centre, or may not be in sync with the agenda or ideology of some of the political parties in the ruling coalition at the Centre, but may be in sync with some other political parties forming part of the ruling coalition at the Centre. “Further, the compulsions of coalition politics may require the parties sharing power to frequently change their policies and agendas. In such a scenario of myriad policies, ideologies, agendas in the shifting sands of political coalitions, there is no question of the Union government having Governors who are in sync with its mandate and policies. Governors are not expected or required to implement the policies of the government or popular mandates. Their constitutional role is clearly defined and bears very limited political overtones.

“Reputed elder statesmen, able administrators and eminent personalities, with maturity and experience are expected to be appointed as Governors. While some of them may come from a political background, once they are appointed as Governors, they owe their allegiance and loyalty to the Constitution and not to any political party and are required to preserve, protect and defend the Constitution.

“We, therefore, reject the contention of the respondents that Governors should be in “sync” with the policies of the Union government or should subscribe to the ideology of the party in power at the Centre. As the Governor is neither the employee nor the agent of the Union government, we also reject the contention that a Governor can be removed if the Union government or party in power loses ‘confidence’ in him.” The Bench noted that persons of calibre, experience, and distinction “are chosen to fill these posts. Such persons are chosen not to enable them to earn their livelihood but to serve society. It is wrong to assume that such persons having been chosen on account of their stature, maturity and experience will be demoralised or be in constant fear of removal, unless there is security of tenure. The doctrine of pleasure is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously.”

http://beta.thehindu.com/news/article424455.ece

Awaiting winds of change

The new CJI will inherit heavy dockets, impeachment proceedings against two HC judges and debate over RTI

M J Antony / New Delhi May 05, 2010,IN THE BUSINESS STANDARD

The change of guard at the top level in the judiciary in a few days comes at a time when the Supreme Court of India is adding more arrears to the dockets and visions of reform have remained empty dreams. In recent times, it had to deal with two cases of impeachment of high court judges and corruption cases against several others. On top of it, the Supreme Court became a petitioner before itself in the right to information controversy.

Soon after Justice K G Balakrishnan took over as chief justice of the Supreme Court, he declared with gusto that “in a democratic set-up, information is empowerment, since it promotes transparency, integrity and accountability. It is necessary to keep the people informed on vital aspects of the functioning of a public institution so as to enlighten them and enable them to form an informed opinion on its working and performance. I am happy that the Supreme Court of India has taken a lead in this direction.”

As in a cinematic anticlimax, soon after he wrote his above editorial for the Supreme Court journal, he got himself into a running controversy over the right to information regarding the assets of judges in the appellate courts and the consultation process in their appointment. Responding to the public outcry, the assets of the judges were put on the Web. But details of the consultation process was another matter, on which the Supreme Court moved a petition before itself challenging the Delhi High Court judgment which stated that the information was not privileged. The petition is still pending.

Arrears of cases in December 2007, around the time when Chief Justice Balakrishnan took over, stood at 39,780. Last December, it was 55,791. When the Supreme Court was set up in 1950, it was a mere 680. This steady increase in the institution of cases is inevitable, given the rise in literacy and awareness of rights among the people. Since the executive has neglected the judiciary, the disposal rate has steadily slowed down.

This has prompted a debate on whether the Supreme Court should take up all appeals or limit itself to Constitutional cases and those of public importance only. One bench of the court has referred this question to a Constitution bench that is to be constituted by the new chief justice, Sarosh Homi Kapadia.

The Supreme Court has remained static on the reform front, though there were plenty of resolutions at the seminar hall of Vigyan Bhavan in New Delhi, with the promising presence of the Union law minister. Among them were the “redesigning of the justice delivery system”, setting up of a “national arrears grid” to provide infrastructural, managerial, technical and manpower services to the judiciary and a “special purpose vehicle”, a new catchphrase. All these were forgotten after the high tea.

Whether the new chief justice would make a dent in this seemingly insurmountable stack of problems, where his predecessors have failed, is a question in the mind of the legal profession. He has two years and four months to make the attempt.

The corporate sector will note that he is a chartered accountant and a cost accountant rolled into one and in these days of economic reforms he will have a lot to contribute to the commercial laws. His court already functions like the proposed “commercial court”, with counsel struggling to match his familiarity with every interstice in tax laws. Some of his judgments are complex and there is debate over their real import. He recently called for special training for judges and lawyers for brushing up their knowledge in taxation. He has lamented the inadequacy of counsel appearing for the government in tax matters, leading to heavy losses in revenue as private companies field the best lawyers.

Years of delay in filing appeals by revenue departments and the absence of lawyers when the cases are called have been recorded in his orders. On Monday, he told the counsel for the Directorate of Revenue Intelligence that his appeal was delayed by a thousand days.

Though his court has not been dealing with public interest litigation (PIL) on all and sundry issues like that of the outgoing chief justice, he was on the special “green bench” which deals with environment and forest matters. As he would inherit scores of PILs from his predecessor, his handling of this important branch of judicial power would be keenly watched.

His knowledge of fiscal regulation should stand in good stead when he bargains for more funds for the judiciary. The funds crunch is the most serious problem affecting this arm of the state. He recently remarked that his heart “goes out to trial court judges who in remote areas are working even without a fan in this scorching summer.” There is, in fact, a 1989 PIL in which the service conditions of subordinate judges are being agitated. Uneasy would lie the head which bears these burdens.

Should we not have a law to punish politicians for breach of trust?

Posted in CONSTITUTION by NNLRJ INDIA on March 22, 2010

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

The great Indian political factory has never failed to spring surprises on the common man. But the giant anaconda shaped garland made up of Rs 1,000 denomination currency notes has surely caught leaders by surprise. They are surprised not by the number of notes in the garland, for they have seen similar amounts being donated to their parties by industrialists, but by the ingenuity of the explanation about the source of the money — a token of love and affection to the “beloved leader” from dalits who are the poorest of the poor. A vast section of poor still live below the poverty line and survive on ration irregularly distributed through a system that stinks of corruption. He could hardly have seen a single note of Rs 1,000 denomination not to talk of possessing and then donating it. Did the wisecrack say the common man and his brethren donated these seemingly uncountable number of currency notes to their “beloved” leader? Political leaders getting elevated to the status of demi-god is nothing new in India, a practice abhorred by none other than the greatest dalit leader, B R Ambedkar. But, that is a little later. For, the common man deserves first mention. The common man, since independence, has been handing over the keys of governance to politicians thinking these merchants who sell dreams would one day make these a reality for him. Mired in those dreams, he continues to endure hardships which have become intrinsic to his life with unfathomable resilience. How else could one explain his silence when prices of food articles and sugar went up sharply? Why did he ignore an important politician’s teasing comment — no one would die if he did not consume sugar? But the moot question is: Should politicians be allowed to continue selling dreams to the gullible common man? Politicians have business interests in almost every kind of industrial activity — from slaughter houses to sugar factories, from mining to money lending. The contrast between wealth of the politicians and plight of the common man is starker than day and night. There is not yet a law or a legal machinery which would fasten liability on a politician who reneges on his election-eve promise. Defeat in the next election for non-performance is no punishment. It is just a consequence. Why should politicians who trick the common man to hand over the keys of governance on the promise of bringing them prosperity be not punished for breach of trust? Most politicians do not appear to even know the basic amenities which a state must provide to the common man? It was crystallised nicely by the Supreme Court in 1983 in the Bandhua Mukti Morcha case [1984 (3) SCC 161]. It had said every citizen was guaranteed under the Constitution to lead a dignified life, which included “protection of the health and strength of workers, men and women, and of the tender age of children against abuse; opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity; educational facilities; just and humane conditions of work and maternity relief”.

“These are the minimum requirements which must exist in order to enable a person to live with human dignity and no state — neither the central government nor any state government — has the right to take any action which will deprive a person of the enjoyment of these basic essentials,” the SC had said. There has been improvement but Jawaharlal Nehru’s `Tryst with Destiny’ speech in August 1947 still remains a reminder for politicians. He had said, “The service of India means the service of millions who suffer. It means ending of the poverty and ignorance and disease and inequality of opportunity.” After more than 60 years, millions still continue to suffer. Nehru probably forgot to put a deadline for achieving the goals. Now, a few words about growing culture of worshipping of political leaders by sycophants who react violently to criticism. Cautioning against it, Dr Ambedkar in November 1949 had prophetically said, “Bhakti in religion may be road to salvation of the soul, but in politics, bhakti or hero-worship is a sure road to degradation and the eventual dictatorship.”

dhananjay.mahapatra@timesgroup.com

All the news that’s fit to buy

Posted in DEMOCRACY, ELECTION LAW by NNLRJ INDIA on March 20, 2010

S Y QURAISHI , ELECTION COMMISSIONER , ELECTION COMMISSION OF INDIA IN THE INDIAN EXPRESS

Over the decades, the approach to news has changed quite a bit. But these changes have largely related to presentation and formats. In the increasingly competitive media world, we have come across terms like morning news, evening news, prime time news, headline news, latest news and more recently, breaking news. But paid news? This coinage is the epitome of anti-news. Paid news is downright unethical, and sinister. The malaise has now gone deep, and cuts across print and electronic, regional and national, vernacular and English media.

We at the Election Commission are seriously concerned. Many of us have been dealing with the problem of surrogate advertising for a while. Some instructions are in place to prevent stealthy advertising in favour of or against candidates. The success in this has only been moderate. But the new camouflage for advertising is “news”. To some extent, the menace has played out its role in manipulating real estate and the stock market; but this is not my official headache. We feel directly concerned with the infiltration of this evil into the election arena. We realise with all seriousness the impact of this malpractice. It is against free and fair polls. It could derail democracy.

Paid news is not free speech. The commission is concerned about the undue influence that paid news can create in the mind of the voter. The voter’s right to correct and unbiased information needs protection. Our second concern is that paid news hoodwinks the enforcement of the expenditure ceiling, a key component in election management with particular importance for a level playing field.

I am happy that most political parties are speaking against paid news. I am even happier that there is a conspicuous uprising against it within the media. Not surprisingly, the protest is led by women and men from the editorial desk, because it is their space and their freedom which is in maximum danger. It is heartening to note that the government and Parliament are also seriously engaged to find a redressal. The churning is healthy and holds out hope.

Friends in media and politics have suggested that the Election Commission is powerful enough to deal with this problem. Well, we have some powers defined by the Constitution, acts of Parliament and judicial pronouncements. We have to work within these. Our control runs only during the election period and applies generally to political parties and candidates. Politicians are most powerful. Members of Parliament alone have the power to legislate to bring the culprits of paid news to book. But, it is the media, which, to my mind retains absolute power, derived from absolute freedom. In my estimate, the problem of paid news is best addressed by self-regulation that lends legitimacy to absolute power anywhere. The commission would again call upon politicians and media to press the delete button on paid news through active self-regulation.

Of course, this would require consensus building. Fortunately, in our country, a good cause or a good piece of legislation brings even opposite camps together. Our model code of conduct during the elections is a shining example of restrictions voluntarily accepted by all political parties. This is a unique Indian institution that makes election managers across the world envious. Can there be a code to check the destabilising activity of paid news?

Paid news is like a snake whose hood is down and tail underground. It is not easy to pull it out. There is circumstantial evidence of all type, but little proof. I am happy that the Press Council is finding ways to deal with the element of deceit in paid news. The commission has lent support to their consultations and will do more, if necessary.

As I have often said, in the multi-dimensional mandate of election management, every problem has a solution, but often a good solution leads to a new problem.

After serious consideration of the public damage caused by some campaign methods, the commission put some restrictions on wall writings, hoardings, loudspeakers etc. The question as suggested by some is, has the strict enforcement of defacement laws led to this worse sickness of paid news in the election arena? More importantly, has it denied a level playing field to those candidates and political parties, who by force or by will, are not accomplices in paid news?

In India, the media is one of the strengths of the Election Commission. With all responsibility, I have to state that media has all too often been our eyes and ears in the conduct of elections. I fervently wish that the alliance between the Election Commission, political parties and the media, which fortifies the world’s largest democracy does not weaken in the shadow of paid news.

The writer is an election commissioner.

http://www.indianexpress.com/news/all-the-news-thats-fit-to-buy/593299/0

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