National Law Day: Two Constitutional Scholars who upheld the values of our Constitution

Supreme Court of India

PUBLISHED IN THE BAR AND BENCH 

The Constitution of India was adopted by the Constituent Assembly on “November 26”, 1949. Thirty years after, under the leadership of Dr. L. M. Singhvi, the Supreme Court Bar Association declared November 26th as the National Law Day. Thereafter, every year, this day is celebrated as the Law Day, all over India, especially by members of the legal fraternity. This day is celebrated to honour the 207 eminent members of the Constituent Assembly who are considered the founding fathers of the Constitution of India.

 Shri M. N. Krishnamani, President, Supreme Court Bar Association, on a Law Day address said that the main objective of celebrating Law Day is, “We want to be a coherent democracy governed by the rule of law. In fact, true democracy and the rule of law always go together. It is the rule of law which guards the democratic polity. Therefore, the real purpose of celebrating Law Day is to rededicate ourselves to the following cardinal principles which formed the solid foundation on which this grand constitutional edifice is erected: (i) the rule of law, (ii) independence of the Judiciary, and (iii) the independence of legal profession. These three principles are intimately interconnected. The main purpose of independent judiciary and an independent bar is only to ensure that there is the rule of law.”

 Law Day is an important day for the members of legal profession in India and also for the people of India. Lawyers and the Indian judiciary have time and again been the last resort of protecting rights and liberties of individuals. It is a special day we all should celebrate and recognize those who have played active role in upholding the rule of law and protected our rights and liberties.

On this day we would like to recognize two legal luminaries who have played an important role in promoting the spirit of our Constitution through their judgments, Justice B. Sudershan Reddy and Justice G. S. Singhvi. While the former retired recently on July 7, 2011, the latter continues to serve  and is scheduled to retire on December 12, 2013. The Indian Supreme Court recently pronounced some path breaking decisions. It is interesting to note that at least one of the two above mentioned judges have been a part of the bench which has delivered such eye-opening judgments.

In Ram Jethmalani & Ors vs. Union of India & Ors, Justice Reddy criticised the Union government, strongly, for loosening its strings when it came to investigation of black money related cases and asked the government to tighten its grip over perpetrators of such crimes. He reiterated his point by constituting a Special Investigation Team (SIT) to monitor the investigation and the steps being taken to bring back black money stashed away in foreign banks. Also, Pune-based businessman Hasan Ali Khan’s bail plea was stayed and he was made available for custodial interrogation only because of the earlier directions issued by Justice Reddy .

 In the Salwa Judum case, Justice Reddy came down heavily on the Chattisgarh government and the Centre for appointing tribals as Special Police Officers (SPOs) and training them to counter Maoists and held the action to be “unconstitutional” by highlighting the importance of human rights.

In 2008, he was also a part of the bench which laid down the guidelines for dealing with Public Interest Litigation, based on which the government is, presently considering a Bill. He reiterated that the High Court judges could not order suo motu investigation merely by treating anonymous letters and petitions listing allegations against individuals or institutions as PILs.

The fight for relevance of PILs has gained momentum again this year, due to Justice Singhvi’s judgment in Delhi Jal Board Appellant v/s National Campaign for Dignity and Rights of Sewerage and Allied Workers & others. The bench, in the above mentioned case, stated that it would be denial of justice if the courts denied addressing the genuine petitions filed by individuals, social workers and NGOs. The Court reminded that it is the duty of the judicial constituents of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity.

While dealing with Justice Dinakaran’s petition, the Apex Court, comprising of a bench of which Justice Singhvi was a part of, refused to be bogged down by the delay tactics used by Justice Dinakaran. It ruled that former Sikkim High Court Chief Justice, Justice Dinakaran’s known silence with regard to P. P. Rao’s appointment to the Rajya Sabha Committee for a period of almost ten months, militates against the bona fides of his objection to the appointment of P. P. Rao as member of the Committee. As a result of this decision Justice Dinakaran had to resign to save his face from an impeachment proceeding.

Further, it was Justice Singhvi’s(pictured) order in the 2G case which asked the Central Bureau of Investigation to conduct investigation without being influenced by politicians or other influential persons, which finally led to the numerous charges, arrests and trials against the elite class of influential people who were involved in the scam. If not for his order, trial of this scam may have gone on for years without any ultimate result due to overreaching hands of corruption. This shows that Justice Singhvi is unperturbed by who is the government in the Centre and believes in only doing his job and upholding the values and goals of our Constitution.

 While hearing a public suit by the All India Drug Action Network of several NGOs which challenged the government’s proposed policy on drug pricing, a bench comprising of Justice Singhvi and Justice S. J. Mukhopadhaya communicated to the central government that the prices of medicine should not shoot up further as the prices of medicine and ordinary lab tests were already too high.

On last Wednesday, a division bench of the Supreme Court, comprising of Justices Singhvi and H. L. Dattu granted bail to seven corporate accused in the 2G scam case, who had been in jail even after the charge sheet was filed and the investigation was complete. Justice Singhvi has played a balanced role here. This decision brings an end to the present trend of keeping under-trials in custody for prolonged period of time without any rational justification. While his initial order in the 2G scam paved way for the arrests and a proper investigation, the present order upheld the rights of the accused envisaged under our Constitution and other laws.

The aforementioned judgments of Justice Reddy and Justice Singhvi evidence the fact that the sacrosanct principles which have been envisaged in our diverse and elaborate Constitution by our founders are in the hands of sound judges. Their judgments have acted as eye-openers for not only the state and central government but also for the citizens of India. In an era, where the Judiciary is embroiled in controversies, these two eminent judges have continuously delivered such judgments which have upheld the values imbibed in the Constitution. On this special day, we salute you.

http://www.barandbench.com/brief/2/1867/national-law-day-two-constitutional-scholars-who-upheld-the-values-of-our-constitution

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Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition

Supreme Court of India

Exposure of the Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition, otherwise Government should have welcomed the order dated 4th July, 2011, passed by the Supreme Court, in Writ Petition (civil) 176 of 2009 (Ram Jethmalani and others Vs- Union of India and others).

By Milap Choraria

It is really amazing to note from the some foregoing extract from the Order that despite the strict monitoring and constant scanning by the Supreme Court, the investigative wings did very little to inspire confidence even in the highest court of the land. It goes without saying that the investigations on India’s Black Money have serious implications for both internal and external security of our country. Another relevant part of the judgment brings out the state of one of our investigative agencies and perhaps a case of connivance so brilliantly. The judgment highlighting the investigation and undue haste shown to file the charge sheet without even consulting the High powered committee constituted for the purpose. The way the Government has opposed to the formation of an SIT (Special Investigation Team) by filing Review Petition is clearly mirrored in the following portion of the judgment. 

Extracts:-

 The named individuals were very much present in the country. Yet, for unknown, and possibly unknowable,   though easily surmisable, reasons the investigations into the matter proceeded at a laggardly pace. Even the named individuals   had not yet been questioned with any degree of seriousness. These are serious lapses, especially   when viewed from the perspective of larger issues of security, both internal and external, of the country.”(Para 20)

 “We must express our serious reservations about the responses of the Union of India. In   the   first   instance,  during   the   earlier phases of hearing before us, the attempts were clearly evasive, confused, or originating in the denial mode. It was only   upon   being   repeatedly pressed by us did the Union of India begin to admit that indeed the   investigation   was   proceeding   very   slowly.   It also became clear to us that in fact the investigation had completely   stalled,  in   as   much  as   custodial   interrogation of   Hassan   Ali   Khan   had   not   even   been   sought   for, even though   he   was   very   much   resident   in   India.   Further,   it also now appears that even though his passport had been impounded, he was able to secure another passport from the   RPO   in   Patna,   possibly   with   the   help   or   aid   of   a politician.” (Para35)

 “During   the   course   of   the   hearings   the   Union   of   India repeatedly   insisted   that   the   matter   involves   many    jurisdictions, across the globe, and a proper investigation could be accomplished only through the concerted efforts by   different   law   enforcement   agencies,   both   within   the Central Government, and also various State governments. However,   the   absence   of   any   satisfactory   explanation   of the slowness of the pace of investigation, and lack of any credible   answers   as   to   why   the   respondents   did   not   act with   respect   to   those   actions   that   were   feasible,   and within the ambit of powers of the Enforcement Directorate itself, such as custodial investigation, leads us to conclude that   the   lack   of   seriousness   in   the   efforts   of   the respondents are contrary to the requirements of laws and constitutional obligations of the Union of India. It was only upon the insistence and intervention of this Court has the Enforcement Directorate initiated and secured custodial interrogation over Hassan Ali Khan. The Union of India has explicitly   acknowledged   that   there was much to be desired with the manner in which the investigation had proceeded prior to the intervention of this court.” (Para36)

“For   instance,   during the continuing interrogation   of   Hassan   Ali   Khan   and   the   Tapurias, undertaken for the first time at the behest of this Court, many   names   of   important   persons,   including   leaders   of some   corporate   giants,   politically   powerful   people,   and international   arms   dealers   have   cropped   up.   So   far,   no significant   attempt   has   been   made   to   investigate   and verify   the   same.   This   is   a   further   cause   for   the   grave concerns   of   this   Court,   and   points   to   the   need   for continued, effective and day to day monitoring by a SIT constituted   by   this   Court,   and   acting   on   behalf, behest and direction of this Court.” (Para36)

 While it would appear, from the Status Reports submitted to this Court, that the Enforcement Directorate has moved in some small measure, the actual facts are not comforting to an appropriate extent. In fact we are not convinced that the situation has changed   to the extent that it ought to so as to accept   that   the investigation would now be conducted with the degree of seriousness that is warranted. According to the Union of India the HLC was formed in order to take charge of and direct the entire investigation, and subsequently, the prosecution. In the meanwhile a charge sheet has been filed against   Hassan Ali Khan. Upon inquiry   by   us   as   to whether the charge-sheet had been vetted by the HLC, and its inputs secured, the counsel for Union of India were flummoxed.  The fact was that   the   charge-sheet   had   not been given even for the perusal of the HLC, let alone securing its inputs, guidance and direction. We are not satisfied by the explanation offered by the Directorate of Enforcement by way   of affidavit after the orders were reserved.” (Para38)

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Govt to seek recall of SC black money verdict

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: The Union government on Thursday decided to move Supreme Court seeking total recall of its stinging judgment taking over the probe into black money while accusing the government of probing the sensitive economic issue laggardly. Riled by the appointment of a Special Investigation Team (SIT) headed by a retired judge of the apex court, the Centre will on Friday file an application faulting the judgment on the ground that it amounted to the judiciary taking over the executive’s statutory functions and that the entire order be scrapped.

The application drafted by the finance ministry traces case laws to drive home the sanctity of separation of powers under the constitutional scheme and says the July 4 judgment by Justices B Sudershan Reddy and S S Nijjar violated the cardinal principle. The government will argue that the executive was not laggardly in its approach to tackle the black money issue as it had respected the court’s sentiments and constituted a high powered committee (HPC) to tackle the menace.

The court while adopting the members of the HPC in its SIT, had included the Director of Research and Analysis Wing (RAW). The Centre objected to this saying RAW Director had always been a “faceless and nameless person” given the sensitiveness of the post. “How can the RAW Director be included and made answerable to the retired Supreme Court Judge who heads the SIT?” the Centre asked.

The government also took objection to the stinging criticism in the first 20 paragraphs of the judgment authored by Justice Reddy appointing former Judges – Justices B P Jeevan Reddy and M B Shah – as chairman and vice-chairman of the SIT. It said the first 20 paragraphs have been written by the bench without any arguments being advanced by then solicitor general Gopal Subramaniam, who has since resigned. Subramaniam had faced flak in the ministerial circles for the adverse order.

The SC had on July 4 stunned the Centre by slamming it for lacking in vigour to probe black money and took over the probe by setting up multi-discipline SIT to investigate the crime in India and abroad as well as accused Hasan Ali Khan. It had directed the Centre to reveal names of Indian who stashed unaccounted money illegally in foreign banks provided they have been issued show cause notices by tax authorities after completing proceedings against them.

It also dismissed as bogey the government’s plea that the double taxation avoidance treaty between India and Germany prohibited revealing names of the 26 Indians who held accounts in Leichtenstein Bank. It had questioned the government’s wisdom in allowing UBS, allegedly the most favoured among Swiss banks for Indians to stash black money, to open retail banking outlet in India.

dhananjay.mahapatra@timesgroup.com