Reasonable restriction to Right of free speech and expression

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Re-Ramlila Maidan Incident Dt … vs Home Secretary And Ors. on 23 February, 2012 – SUO MOTU WRIT PETITION (CRL.) NO. 122 OF 2011

1. At the very outset, I would prefer to examine the principles of law that can render assistance in weighing the merit or otherwise of the contentious disputations asserted before the Court by the parties in the present suo moto petition. Besides restating the law governing Articles 19(1)(a) and 19(1)(b) of the Constitution of India and the parallel restrictions contemplated under Articles 19(2) and 19(3) respectively, I would also gauge the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.’).

2. It appears justified here to mention the First Amendment to the United States (US) Constitution, a bellwether in the pursuit of expanding the horizon of civil liberties. This Amendment provides for the freedom of speech of press in the American Bill of Rights. This Amendment added new dimensions to this right to freedom and purportedly, without any limitations. The expressions used in wording the Amendment have a wide magnitude and are capable of liberal construction. It reads as under :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3. The effect of use of these expressions, in particular, was that the freedom of speech of press was considered absolute and free from any restrictions whatsoever. Shortly thereafter, as a result of widening of the power of judicial review, the US Supreme Court preferred to test each case on the touchstone of the rule of `clear- and-present-danger’. However, application of this rule was unable to withstand the pace of development of law and, therefore, through its judicial pronouncements, the US Supreme Court applied the doctrine of `balancing of interests’. The cases relating to speech did not simply involve the rights of the offending speaker but typically they presented a clash of several rights or a conflict between individual rights and necessary functions of the Government. Justice Frankfurter often applied the above-mentioned Balancing Formula and concluded that “while the court has emphasized the importance of `free speech’, it has recognized that free speech is not in itself a touchstone. The Constitution is not unmindful of other important interests, such as public order, if free expression of ideas is not found to be the overbalancing considerations.

4. The `balancing of interests’ approach is basically derived from Roscoe Pound‘s theories of social engineering. Pound had insisted that his structure of public, social and individual interests are all, in fact, individual interests looked at from different points of view for the purpose of clarity. Therefore, in order to make the system work properly, it is essential that when interests are balanced, all claims must be translated into the same level and carefully labelled. Thus, a social interest may not be balanced against individual interest, but only against another social interest. The author points out that throughout the heyday of the clear-and-present-danger and preferred position doctrines, the language of balancing, weighing or accommodating interests was employed as an integral part of the libertarian position. [Freedom of Speech: The Supreme Court and Judicial Review, by Martin Shapiro, 1966]

5. Even in the United States there is a recurring debate in modern First Amendment Jurisprudence as to whether First Amendment rights are `absolute’ in the sense that the Government may not abridge them at all or whether the First Amendment requires the `balancing of competing interests’ in the sense that free speech values and the Government’s competing justification must be isolated and weighted in each case. Although the First Amendment to the American Constitution provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the constitutional Government to survive. If it is to survive, it must have power to protect itself against unlawful conduct and under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time. In the case of Schenck v. United States [63 L ed 1173], the Court held :

The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force….the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

[Constitution of India, (2nd Edn.), Volume 1 by Dr. L.M. Singhvi]

6. In contradistinction to the above approach of the US Supreme Court, the Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1)(b). However, these rights are not free from any restrictions and are not absolute in their terms and application. Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein.

7. In face of this constitutional mandate, the American doctrine adumbrated in Schenck’s case (supra) cannot be imported and applied. Under our Constitution, this right is not an absolute right but is subject to the above-noticed restrictions. Thus, the position under our Constitution is different.

 8. In `Constitutional Law of India’ by H.M. Seervai (Fourth Edn.), Vol.1, the author has noticed that the provisions of the two Constitutions as to freedom of speech and expression are essentially different. The difference being accentuated by the provisions of the Indian Constitution for preventive detention which have no counterpart in the US Constitution. Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide. {Babulal Parate v. State of Maharashtra [(1961) 3 SCR 423]}.

9. The fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind. For instance, the right to freedom of speech and expression is not violated by a law which requires that name of the printer and publisher and the place of printing and publication should be printed legibly on every book or paper.

10. Thus, there is a marked distinction in the language of law, its possible interpretation and application under the Indian and the US laws. It is significant to note that the freedom of speech is the bulwark of democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a ;basic human right ;a natural right; and the like. With the development of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press.

11. In order to effectively consider the rival contentions raised and in the backdrop of the factual matrix, it will be of some concern for this Court to examine the constitutional scheme and the historical background of the relevant Articles relating to the right to freedom of speech and expression in India. The framers of our Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. This gave to the citizens of this country a very valuable right, which is the essence of any democratic system. There could be no expression without these rights. Liberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression. Placed as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally connected to the liberty of expression. (Ref. Preamble, The Spirit and Backbone of the Constitution of India, by Justice R.C. Lahoti). These valuable fundamental rights are subject to restrictions contemplated under Articles 19(2) and 19(3), respectively. Article 19(1) was subjected to just one amendment, by the Constitution (44th Amendment) Act, 1979, vide which Article 19(1)(f) was repealed. Since the Parliament felt the need of amending Article 19(2) of the Constitution, it was substituted by the Constitution (First Amendment) Act, 1951 with retrospective effect. Article 19(2) was subjected to another amendment and vide the Constitution (Sixteenth Amendment) Act, 1963, the expression "sovereignty and integrity of India was added. The pre-amendment Article had empowered the State to make laws imposing reasonable restrictions in exercise of the rights conferred under Article 19(1)(a) in the interest of the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence. To introduce a more definite dimension with regard to the sovereignty and integrity of India, this Amendment was made. It provided the right spectrum in relation to which the State could enact a law to place reasonable restrictions upon the freedom of speech and expression.

12. This shows that the State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder. {Ref.: State of West Bengal Vs. Subodh Gopal Bose [AIR 1954 SC 92]}.

13. I consider it appropriate to examine the term `liberty’, which is subject to reasonable restrictions, with reference to the other constitutional rights. Article 21 is the foundation of the constitutional scheme. It grants to every person the right to life and personal liberty. This Article prescribes a negative mandate that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure established by law for deprivation of rights conferred by this Article must be fair, just and reasonable. The rules of justice and fair play require that State action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law which prescribed that procedure and, consequently, the action taken thereunder.

14. Any action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the application of two standards – first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established under which that action is taken is itself unreasonable. The concept of `procedure established by law’ changed its character after the judgment of this Court in the case of Maneka Gandhi v. UOI [AIR 1978 SC 597], where this Court took the view as under : "The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this Court took the following view:

Procedure established by law are words of deep meaning for all lovers of liberty and judicial sentinels.

15. What emerges from the above principles, which has also been followed in a catena of judgments of this Court, is that the law itself has to be reasonable and furthermore, the action under that law has to be in accordance with the law so established. Non-observance of either of this can vitiate the action, but if the former is invalid, the latter cannot withstand.

16. Article 13 is a protective provision and an index of the importance and preference that the framers of the Constitution gave to Part III. In terms of Article 13(1), the laws in force before the commencement of the Constitution, in so far as they were inconsistent with the provisions of that Part were, to the extent of such inconsistency, void. It also fettered the right of the State in making laws. The State is not to make any law which takes away or abridges the rights conferred by this Part and if such law is made then to the extent of conflict, it would be void. In other words, except for the limitations stated in the Articles contained in Part III itself and Article 13(4) of the Constitution, this Article is the 13 reservoir of the fundamental protections available to any person/citizen.

17. While these are the guaranteed fundamental rights, Article 38, under the Directive Principles of State Policy contained in Part IV of the Constitution, places a constitutional obligation upon the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice – social, economic and political – shall inform all the institutions of the national life. Article 37 makes the Directive Principles of State Policy fundamental in governance of the country and provides that it shall be the duty of the State to apply these principles in making laws.

18. With the development of law, even certain matters covered under this Part relating to Directive Principles have been uplifted to the status of fundamental rights, for instance, the right to education. Though this right forms part of the Directive Principles of State Policy, compulsory and primary education has been treated as a part of Article 21 of the Constitution of India by the courts, which consequently led to the enactment of the Right of Children to Free and Compulsory Education Act, 2010.

 19. Article 51A deals with the fundamental duties of the citizens. It, inter alia, postulates that it shall be the duty of every citizen of India to abide by the Constitution, to promote harmony and the spirit of common brotherhood, to safeguard public property and to abjure violence.

20. Thus, a common thread runs through Parts III, IV and IVA of the Constitution of India. One Part enumerates the fundamental rights, the second declares the fundamental principles of governance and the third lays down the fundamental duties of the citizens. While interpreting any of these provisions, it shall always be advisable to examine the scope and impact of such interpretation on all the three constitutional aspects emerging from these parts. It is necessary to be clear about the meaning of the word "fundamental as used in the expression ;fundamental in the governance of the State to describe the directive principles which have not legally been made enforceable. Thus, the word "fundamental has been used in two different senses under our Constitution. The essential character of the fundamental rights is secured by limiting the legislative power and by providing that any transgression of the limitation would render the offending law pretendo void. The word fundamental in Article 37 also means basic or essential, but it is used in the normative sense of setting, before the State, goals which it should try to achieve. As already noticed, the significance of the fundamental principles stated in the directive principles has attained greater significance through judicial pronouncements.

21. As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, equally difficult it is to imagine the existence of a right not coupled with a duty. The duty may be a direct or indirect consequence of a fair assertion of the right. Part III of the Constitution of India although confers rights, still duties and restrictions are inherent thereunder. These rights are basic in nature and are recognized and guaranteed as natural rights, inherent in the status of a citizen of a free country, but are not absolute in nature and uncontrolled in operation. Each one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by the Parliament or the State Legislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable. It is for the State to place on record appropriate material justifying the restriction and its reasonability. Reasonability of restriction is a matter which squarely falls within the power of judicial review of the Courts. Such limitations, therefore, indicate two purposes; one that the freedom is not absolute and is subject to regulatory measures and the second that there is also a limitation on the power of the legislature to restrict these freedoms. The legislature has to exercise these powers within the ambit of Article 19(2) of the Constitution.

22. Further, there is a direct and not merely implied responsibility upon the Government to function openly and in public interest. The Right to Information itself emerges from the right to freedom of speech and expression. Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure security of the State as well as the social and public order. It has to give utmost regard to the right to freedom of speech and expression which a citizen or a group of citizens may assert. The State also has a duty to provide security and protection to the persons who wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech or otherwise. In the case of S. Rangarajan v. Jagjivan Ram [(1989) 2 SCC 574], this Court noticed as under : The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg

23. Where the Court applies the test of `proximate and direct nexus with the expression’, the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.

24. Now, I would examine the various tests that have been applied over the period of time to examine the validity and/or reasonability of the restrictions imposed upon the rights.

Upon the Rights Enshrined in the Constitution

 25. No person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:-

a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in Article 19(2).

 26. The questions before the Court, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V.G. Row [AIR 1952 SC 196] held :- "It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases.

27. For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict. [See: ChintamanraoAnr. v. State of Madhya Pradesh (AIR 1951 SC 118)].

 28. The courts must bear a clear distinction in mind with regard to `restriction’ and `prohibition’. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a `prohibition’ is imposed, besides satisfying all the tests of a reasonable `restriction’, it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case. This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as under:- "75. Three propositions are well settled: (i) ‘restriction’ includes cases of ‘prohibition’; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right…..

29. The obvious result of the above discussion is that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution.

 30. As already noticed, rights, restrictions and duties co-exist. As, on the one hand, it is necessary to maintain and preserve the freedom of speech and expression in a democracy, there, on the other, it is also necessary to place reins on this freedom for the maintenance of social order. The term `social order’ has a very wide ambit. It includes `law and order’, `public order’ as well as `the security of the State’. The security of the State is the core subject and public order as well as law and order follow the same. In the case of Romesh Thappar v. State of Madras [1950 SCR 594], this Court took the view that local breaches of public order were no grounds for restricting the freedom of speech guaranteed by the Constitution. This led to the Constitutional (First Amendment) Act, 1951 and consequently, this Court in the case of Dr. Ram Manohar Lohia v. State of Bihar [AIR 1966 SC 740] stated that an activity which affects `law and order’ may not necessarily affect `public order’ and an activity which might be prejudicial to `public order’ may not necessarily affect `security of the State’. Absence of `public order’ is an aggravated form of disturbance of public peace which affects the general current of public life. Any act which merely affects the security of others may not constitute a breach of `public order’.

31. The expression `in the interest of’ has given a wide amplitude to the permissible law which can be enacted to impose reasonable restrictions on the rights guaranteed by Article 19(1) of the Constitution.

 32. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty. When the courts are called upon to examine the reasonableness of a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article 51A are of relevant consideration. Article 51A requires an individual to abide by the law, to safeguard public property and to abjure violence. It also requires the individual to uphold and protect the sovereignty, unity and integrity of the country. All these duties are not insignificant. Part IV of the Constitution relates to the Directive Principles of the State Policy. Article 38 was introduced in the Constitution as an obligation upon the State to maintain social order for promotion of welfare of the people. By the Constitution (Forty-Second Amendment) Act, 1976, Article 51A was added to comprehensively state the fundamental duties of the citizens to compliment the obligations of the State. Thus, all these duties are of constitutional significance. It is obvious that the Parliament realized the need for inserting the fundamental duties as a part of the Indian Constitution and required every citizen of India to adhere to those duties. Thus, it will be difficult for any Court to exclude from its consideration any of the above-mentioned Articles of the Constitution while examining the validity or otherwise of any restriction relating to the right to freedom of speech and expression available to a citizen under Article 19(1)(a) of the Constitution. The restriction placed on a fundamental right would have to be examined with reference to the concept of fundamental duties and non-interference with liberty of others. Therefore, a restriction on the right to assemble and raise protest has also to be examined on similar parameters and values. In other words, when you assert your right, you must respect the freedom of others. Besides imposition of a restriction by the State, the non-interference with liberties of others is an essential condition for assertion of the right to freedom of speech and expression. In the case of Dr. D.C. Saxena v. Hon’ble the Chief Justice of India [(1996) 5 SCC 216], this Court held:

If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others’ right to person or reputation. Therefore, freedom of speech and expression is tolerated so long as it is not malicious or libellous, so that all attempts to foster and ensure orderly and peaceful public discussion or public good should result from free speech in the market-place. If such speech or expression was untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right.

33. Every right has a corresponding duty. Part III of the Constitution of India although confers rights and duties, restrictions are inherent thereunder. Reasonable regulations have been found to be contained in the provisions of Part III of the Constitution of India, apart from clauses (2) to (4) and (6) of Article 19 of the Constitution {See Union of India v. Naveen Jindal and Anr. [(2004) 2 SCC 510]}.

34. As I have already discussed, the restriction must be provided by law in a manner somewhat distinct to the term `due process of law’ as contained in Article 21 of the Constitution. If the orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the test of reasonableness, which requires it to be free of arbitrariness, to have a direct nexus to the object and to be proportionate to the right restricted as well as the requirement of the society, for example, an order passed under Section 144 Cr.P.C. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 Cr.P.C. and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable restriction.

35. The distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.

36. It is keeping this distinction in mind, the Legislature, under Section 144 Cr.P.C., has empowered the District Magistrate, Sub- Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this Section exists and immediate prevention and/or speedy remedy is desirable. By virtue of Section 144A Cr.P.C., which itself was introduced by Act 25 of 2005, the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organizing or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of the public order. Section 144 Cr.P.C, therefore, empowers an executive authority, backed by these provisions, to impose reasonable restrictions vis-`-vis the fundamental rights. The provisions of Section 144 Cr.P.C. provide for a complete mechanism to be followed by the Magistrate concerned and also specify the limitation of time till when such an order may remain in force. It also prescribes the circumstances that are required to be taken into consideration by the said authority while passing an order under Section 144 Cr.P.C.

37. In Babu Lal Parate (supra) where this Court was concerned with the contention raised on behalf of the union of workers that the order passed in anticipation by the Magistrate under Section 144 Cr.P.C. was an encroachment on their rights under Articles 19(1)(a) and 19(1)(b), it was held that the provisions of the Section, which commit the power in this regard to a Magistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable. While examining the law in force in the United States, the Court further held that an anticipatory action of the kind permissible under Section 144 Cr.P.C. is not impermissible within the ambit of clauses (2) and (3) of Article 19. Public order has to be maintained at all times, particularly prior to any event and, therefore, it is competent for the legislature to pass a law permitting the appropriate authority to take anticipatory action or to place anticipatory restrictions upon particular kind of acts in an emergency for the purpose of maintaining public order.

38. In the case of Madhu Limaye v. Sub Divisional Magistrate and Ors. [AIR 1971 SC 2481], a Constitution Bench of this Court took the following view:

 The procedure to be followed is next stated. Under Sub-section (2) if time does not permit or the order cannot be served, it can be made ex parte. Under Sub-section (3) the order may be directed to a particular individual or to the public generally when frequenting or visiting a particular place. Under sub-section (4) the Magistrate may either suo motu or on an application by an aggrieved person, rescind or alter the order whether his own or by a Magistrate subordinate to him or made by his predecessor in Office. Under Sub-section (5) where the magistrate is moved by a person aggrieved he must hear him so that he may show cause against the order and if the Magistrate rejects wholly or in part the application, he must record his reasons in writing. This sub-section is mandatory. An order by the Magistrate does not remain in force after two months from the making thereof but the State Government may, however, extend the period by a notification in the Gazette but, only in cases of danger to human life, health or safety or where there is a likelihood of a riot or an affray. But the second portion of the sub-section was declared violative of Article 19 in State of Bihar v. K.K. Misra [1969] S.C.R. 337. It may be pointed out here that disobedience of an order lawfully promulgated is made an offence by Section 188 of the Indian Penal Code, if such disobedience causes obstruction, annoyance or injury to persons lawfully employed. It is punishable with simple imprisonment for one month or fine of Rs. 200 or both.

25. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence : see Mst. Jagrupa Kumari v. Chotay Narain Singh (1936) 37 Cri.L.J. 95 (Pat) which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.

 26. The criticism, however, is that the section suffers from over broadness and the words of the section are wide enough to give an absolute power which may be exercised in an unjustifiable case and then there would be no remedy except to ask the Magistrate to cancel the order which he may not do. Revision against his determination to the High Court may prove illusory because before the High Court can intervene the mischief will be done. Therefore, it is submitted that an inquiry should precede the making of the order. In other words, the burden should not be placed upon the person affected to clear his position. Further the order may be so general as to affect not only a particular party but persons who are innocent, as for example when there is an order banning meetings, processions, playing of music etc.

27. The effect of the order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. As was pointed out in Babulal Parate case where two rival trade unions clashed and it was difficult to say whether a person belonged to one of the unions or to the general public, an order restricting the activities of the general public in the particular area was justified.

28. …A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general the order may be questioned by appropriate remedies for which there is ample provision in the law. In the case of Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. [(1973) 1 SCC 227], again a Constitution Bench of this Court, while dealing with a situation where a person seeking permission to hold a public meeting was denied the same on the ground that under another similar permission, certain elements had indulged in rioting and caused mischief to private and public properties, held Rule 7 framed under the Bombay Police Act, 1951 as being arbitrary and observed as under :.It is not surprising that the Constitution makers conferred a fundamental right on all citizens ‘to assemble peaceably and without arms’. While prior to the coming into force of the Constitution the right to assemble could have been abridged or taken away by law, now that cannot be done except by imposing reasonable restrictions within Article 19(3). But it is urged that the right to assemble does not mean that that right can be exercised at any and every place. This Court held in Railway Board v. Narinjan Singh (1969) 3 SCR 548; 554 : (1969)1 SCC 502 that there is no fundamental right for any one to hold meetings in government premises. It was observed: `The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please’.

 40. Section 144 Cr.P.C. is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquility or a riot or an affray. These features must co-exist at a given point of time in order to enable the authority concerned to pass appropriate orders. The expression `law and order’ is a comprehensive expression which may include not merely `public order’ but also matters such as `public peace’, `public tranquility’ and `orderliness’ in a locality or a local area and perhaps some other matters of public concern too. `Public order’ is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. This concept came to be illustratively explained in the judgment of this Court in the case of Dr. Ram Manohar Lohia (supra) wherein it was held that when two drunkards quarrel and fight, there is `disorder’ but not `public disorder’. They can be dealt with under the powers to maintain `law and order’ but cannot be detained on the ground that they were disturbing `public order’. However, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of `law and order’ but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to `public order’. Section 144 Cr.P.C. empowers passing of such order in the interest of public order equitable to public safety and tranquility. The provisions of Section 144 Cr.P.C. empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquility is not ultra vires the Constitution.

 41. In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia, [(2004) 4 SCC 684], this Court, while observing that each person, whatever be his religion, must get the assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and the freedom of conscience, held more emphatically that the courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They are by and large the best to assess and handle the situation depending upon the peculiar needs and necessities within their special knowledge.

42. The scope of Section 144 Cr.P.C. enumerates the principles and declares the situations where exercise of rights recognized by law, by one or few, may conflict with other rights of the public or tend to endanger the public peace, tranquility and/or harmony. The orders passed under Section 144 Cr.P.C. are attempted to serve larger public interest and purpose. As already noticed, under the provisions of the Cr.P.C. complete procedural mechanism is provided for examining the need and merits of an order passed under Section 144 Cr.P.C. If one reads the provisions of Section 144 Cr.P.C. along with other constitutional provisions and the judicial pronouncements of this Court, it can undisputedly be stated that Section 144 Cr.P.C. is a power to be exercised by the specified authority to prevent disturbance of public order, tranquility and harmony by taking immediate steps and when desirable, to take such preventive measures. Further, when there exists freedom of rights which are subject to reasonable restrictions, there are contemporaneous duties cast upon the citizens too. The duty to maintain law and order lies on the concerned authority and, thus, there is nothing unreasonable in making it the initial judge of the emergency. All this is coupled with a fundamental duty upon the citizens to obey such lawful orders as well as to extend their full cooperation in maintaining public order and tranquility.

43. The concept of orderly conduct leads to a balance for assertion of a right to freedom. In the case of Feiner v. New York (1951) 340 U.S. 315, the Supreme Court of the United States of America dealt with the matter where a person had been convicted for an offence of disorderly conduct for making derogatory remarks concerning various persons including the President, political dignitaries and other local political officials during his speech, despite warning by the Police officers to stop the said speech. The Court, noticing the condition of the crowd as well as the refusal by the petitioner to obey the Police requests, found that the conduct of the convict was in violation of public peace and order and the authority did not exceed the bounds of proper state Police action, held as under: It is one thing to say that the Police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of arguments or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the Police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder couples with petitioner’s deliberate defiance of the Police officers convince us that we should not reverse this conviction in the name of free speech.

44. Another important precept of exercise of power in terms of Section 144 Cr.P.C. is that the right to hold meetings in public places is subject to control of the appropriate authority regarding the time and place of the meeting. Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an imminent breach of peace. Such orders constitute reasonable restriction upon the freedom of speech and expression. This view has been followed consistently by this Court. To put it with greater clarity, it can be stated that the content is not the only concern of the controlling authority but the time and place of the meeting is also well within its jurisdiction. If the authority anticipates an imminent threat to public order or public tranquility, it would be free to pass desirable directions within the parameters of reasonable restrictions on the freedom of an individual. However, it must be borne in mind that the provisions of Section 144 Cr.P.C. are attracted only in emergent situations. The emergent power is to be exercised for the purposes of maintaining public order. It was stated by this Court in Romesh Thapar (supra) that the Constitution requires a line to be drawn in the field of public order and tranquility, marking off, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of peace of a purely local significance, treating for this purpose differences in degree as if they were different in kind. The significance of factors such as security of State and maintenance of public order is demonstrated by the mere fact that the framers of the Constitution provided these as distinct topics of legislation in Entry III of the Concurrent List of Seventh Schedule to the Constitution.

45. Moreover, an order under Section 144 Cr.P.C. being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of the Cr.P.C., such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In the case of Dr. Praveen Bhai Thogadia (supra), this Court took the view that the Court, while dealing with such orders, does not act like an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimization by those in power. Normally, interference should be the exception and not the rule.

46. A bare reading of Section 144 Cr.P.C. shows that : (1) It is an executive power vested in the officer so empowered; (2) There must exist sufficient ground for proceeding; (3) Immediate prevention or speedy remedy is desirable; and (4) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.

47. These are the basic requirements for passing an order under Section 144 Cr.P.C. Such an order can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 Cr.P.C. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility. This Court in the case of Babulal Parate (supra) had clearly stated the following view : "the language of Section 144 is somewhat different. The test laid down in the Section is not merely `likelihood’ or `tendency’. The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.

48. The above-stated view of the Constitution Bench is the unaltered state of law in our country. However, it needs to be specifically mentioned that the `apprehension of danger’ is again what can inevitably be gathered only from the circumstances of a given case.

49. Once an order under Section 144 Cr.P.C. is passed, it is expected of all concerned to implement the said order unless it has been rescinded or modified by a forum of competent jurisdiction. Its enforcement has legal consequences. One of such consequences would be the dispersement of an unlawful assembly and, if necessitated, by using permissible force. An assembly which might have lawfully assembled would be termed as an `unlawful assembly’ upon the passing and implementation of such a preventive order. The empowered officer is also vested with adequate powers to direct the dispersement of such assembly. In this direction, he may even take the assistance of concerned officers and armed forces for the purposes of dispersing such an assembly. Furthermore, the said officer has even been vested with the powers of arresting and confining the persons and, if necessary, punishing them in accordance with law in terms of Section 129 Cr.P.C. An order under Section 144 Cr.P.C. would have an application to an `actual’ unlawful assembly as well as a `potential’ unlawful assembly. This is precisely the scope of application and enforcement of an order passed under Section 144 Cr.P.C.

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Book on Kesavananda Bharati case to be released on Tuesday

J VENKATESAN IN THE HINDU

A 13-judge Bench of the Supreme Court, the largest so far, decided the Kesavananda Bharati case after hearing arguments by eminent lawyers spread over 66 days. The judgment, delivered by a majority of 7:6 on April 24, 1973, held that Parliament could not alter the basic structure of the Constitution by an amendment. Chief Justice of India S.H. Kapadia will release a book dealing with this case at a function here on October 18. The senior advocate and former Solicitor- General, T.R. Andhyarujina, has written the book, explaining the culmination of a struggle for supremacy over the power to amend the Constitution between Parliament and the government on the one hand, and the Supreme Court on the other.

Mr. Andhyarujina says: “This book is a gripping story of the conflict and tensions in the Kesavananda Bharati case and its aftermath, which has not been disclosed so far. It is based on the author’s recollection and [the] detailed notes maintained by him as counsel in the case, and on later interviews by him with some of the judges in the case.” The book reveals that prior to the hearing, the government attempted to influence the court by appointing judges who it expected would decide in its favour. It shows the preconceived views of some of the judges on Parliament’s power to amend the Constitution, the internal conflicts and factions among the judges, and the charged atmosphere in the court till the delivery of their judgments.

In the words of Mr. Andhyarujina, the battle began when the Supreme Court, in the Golak Nath case in 1967, held that fundamental rights could not be amended by Parliament. Parliament and the government were not reconciled to the ‘view by majority’ in the Kesavananda case and were determined to get it overruled. On the day of the judgment (April 24, 1973), the government superseded three senior-most judges, who had decided against the government and appointed Justice A.N. Ray as the next Chief Justice on the retirement of Chief Justice S.M. Sikri. In 1975, with the help of Mr. Ray, the government tried in vain to reverse the majority view in the Kesavananda case by another Bench of 13 judges.

However, during the emergency, the government nullified the Kesavananda case judgment by the 42nd amendment, but this was overruled in the Minerva Mills case in 1980, when Y.V. Chandrachud was the Chief Justice. Mr. Andhyarujina says the purpose of the book, coming as it does after 38 years of the event, was “an interaction of constitutional law with the politics of the day; the story of the Kesavananda case requires to be widely known.” Though such an exercise is being done in the United States, it has not been done in respect of any leading case in India, hence his attempt.

http://www.thehindu.com/news/national/article2543671.ece

‘Genuine movement’

Arun Jaitley

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VENKITESH RAMAKRISHNAN & AJOY ASHIRWAD MAHAPRASHASTA IN THE FRONTLINE

Interview with Arun Jaitley, BJP leader and Leader of the Opposition in the Rajya Sabha.

THE interventions in the monsoon session of Parliament by Arun Jaitley, the Leader of the Opposition in the Rajya Sabha, have been rated as “masterly” by a large number of seasoned Parliament-watchers. During the course of these interventions, which saw him make important observations on the legal and constitutional dimensions of the issues relating to corruption and the Lokpal Bill, the Bharatiya Janata Party leader also adopted the role of an “in-depth political analyst and visionary” who had cast off the limitations of a “narrow, sectarian politician”. In this interview to Frontline, Jaitley elaborated on these interventions and delineated his understanding of the future course of action on issues such as the Lokpal Bill. Excerpts:

Parliament has conceded three points raised by Team Anna on the Lokpal Bill, and the Standing Committee is going to look at the provisions of the Bill. What will be the broad road map on the issue?

Logically, all issues and viewpoints on which parliamentary consensus was built up after the recent debates will be placed before the Standing Committee. The committee should hold extensive public consultations and come out with a report expeditiously so that the final draft, with amendments, can be approved by the Cabinet. Hopefully, the government will introduce the amended Bill in the winter session.

What is the BJP’s position on the Lokpal issue?

There are two underlying principles that should guide the issue. There should be wide scope for government offices coming under the Lokpal’s jurisdiction. It should be a strong, independent Lokpal. The judiciary should have an alternative mechanism, where I prefer the National Judicial Commission. The appointment mechanisms should be completely independent; not excluding the government, but the government should not be able to be dominate or control it. So it should be an institutional mechanism. And it should be a mechanism where we are able to eventually bring in various other institutions. The institution of Lokpal should follow fair procedures. For instance, we should be able to bring in [under its purview] civil servants who work in state instrumentalities.

The only other factor that should be taken into consideration is that the Lokpal Bill should be consistent with constitutional requirements. There are four areas that need to be stressed in this connection. One, when you deal with the judiciary, you have to keep it independent of the executive. Therefore, the mechanism for the judiciary should be separate and not executive-centric.

Two, the principles of federal polity enshrined in the Constitution should not be affected by the Lokpal Bill. The Centre pressing for Lokayuktas in the States can compromise the federal principles of the Constitution. For instance, can the Centre legislate on a law dealing with State bureaucracy? My prima facie view is that with regard to some criminal law procedures, the Centre can, but not with regard to disciplinary and inquiry procedures against the State bureaucracy. The Centre can at best pass an enabling law under Article 252 of the Constitution [Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State] or a model law, but not a binding law. The States will have to do it. Therefore, the fight against corruption should not compromise the federal principles. I have already spoken about the issue to Team Anna.

Three, in relation to the conduct of the Members of Parliament inside the House, the Bill should be consistent with Article 105 of the Constitution [power and privileges of the Houses of Parliament and of the members and committees].

Four, in relation to who takes disciplinary action – those who hold a civil post in the Central and State governments have protection under Article 307; that constitutional protection should not be affected.

Now, having covered all these areas, we can say that the Prime Minister should be covered but we can exclude certain functions; functions predominantly in the areas of public order and national security.

There is a suggestion that the functions of intelligence agencies relating to external affairs should not be covered. These are issues that should be fine-tuned by the Standing Committee.

There are other questions, too. Such as whether the entire bureaucracy should be covered and whether it should be entirely under the Lokpal. I think we would like the entire bureaucracy to be accountable. But the government has said there can be a splitting of functions in which the lower bureaucracy can come under the Central Vigilance Commission. There is a third proposal, that the lower bureaucracy can be put under a CVC, which in turn could be monitored by the Lokpal.

Should MPs be covered? Yes, obviously, but what they say inside the House, protected by the privileges of Article 105, should not be covered. These are issues of workability and accountability, which the Standing Committee can look into keeping the major principles in mind.

I have objected to only one point that is found in both the Bills [the Jan Lokpal and the government’s Bill], that is, the bugging of telephones. This can compromise national security. It violates personal liberty. I hope the Standing Committee will consider this.

The idea of attaching property of those charged with corruption has also raised objections.

There are already laws in some States that address this issue. There is a law of 1945 called Criminal Law Amendment Ordinance. The principle behind attaching property is that you cannot profit out of corruption. The court can attach corrupt money, not an executive authority, and use it for national development. The money should not wither away or you should not be able to dispose of the corrupt money. Proceeds of narcotics and smuggling money are invested in the state. Why not in the case of corrupt money? Bihar has brought this law. Other States are following suit.

There is a view that the BJP has spoken in different voices, especially with regard to the Jan Lokpal Bill.

The positions I have enunciated in Parliament are the party’s positions.

 Several votaries of the Jan Lokpal Bill hold the view that the existing anti-corruption laws are completely faulty and inefficient. Do you agree?

I think to say they are completely faulty may not be correct. They are a bit lax, a bit liberal, and capable of misuse. At times the law works, at times it does not. Seeing the enormity of corruption, you do not see so many people punished. A Lokpal may not be able to eliminate corruption but the fear of the Lokpal and of being tried under a fair mechanism may certainly be some kind of a deterrent.

Do you think this movement has created an unprecedented public sensibility?

I think this movement was genuine. No major parties participated. Sympathisers and workers did join it, but in their capacity as citizens. It was genuinely a citizens’ movement. It had a lot of goodwill. Such kind of consciousness is a positive development in India.

Do you subscribe to the view that such protest methods are symbolic of bypassing representative democracy?

I do not think it is fair to say that they were bypassing [representative democracy]. They were not saying they had the power to legislate, and not Parliament. Yes, they did bring pressure on Parliament. But we should treat them as a pressure group. They have the right to campaign and we have an obligation to listen to them. I think the government did not have a game plan. I have spoken to Team Anna at least three times. And on most issues, I have found its stand to be extremely reasonable, and after a little diversion we have converged on the same opinion. On the question of excluding certain functions of the Prime Minister, we are of the same view. Regarding the judiciary, we are of the same opinion also.

 There is a feeling in many quarters that the political class as a whole has lost the moral authority in the context of the movement.

I do not think this is fair. You see, there is a campaign against the political class. The campaign is also against Parliament. I still believe that there are still a large number of good and honest people in various political parties. There are aberrations also. But there is still a space for decency and ethics in politics and that space is being encouraged by such strong public opinion. There is no reason to be cynical. But if you pick up each one of the debates in Parliament in this session, I can tell you some of the debates have been exemplary. For instance, if you see the debate on the day Anna Hazare was arrested, or on the Lokpal Bill, or the impeachment debate, the quality has been very good. The fact is that if private television channels feel that the debates are bringing them TRPs and they cut out to Parliament for speeches, that itself means that people are interested. The stronger the public opinion, the more the viewership of parliamentary speeches, both in the electronic and the print media.

Provocative statements are being made against Parliament. We must not be vindictive in our actions even then. We should not make angry reactions or get provoked. What we do on the issues will be our response to the people. Even without this movement, States such as Madhya Pradesh, Bihar, Uttar Pradesh, Punjab and Himachal Pradesh have brought out Citizens’ Charters. This is a significant response and this is the way it should be.

http://www.frontline.in/stories/20110923281901400.htm

Why is it so hard to budge a judge?

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

INDIAN EXPRESS 

 It was assumed by our Constitution makers that once a judicial committee finds a judge guilty of misbehaviour, Parliament would automatically endorse the finding of the judicial committee and pass the appropriate address to the president with the requisite majority. That was the assumption underlying this provision. Unfortunately, Parliament did not build up a convention on these lines. Therefore, the procedure became difficult and doubtful.

In former Supreme Court judge Justice V. Ramaswami’s case in 1993, the ruling party, the Congress under P.V. Narasimha Rao, did not issue a whip to the members and in fact, told them to abstain from the vote. Ramawami’s supporters prevailed on the party, and this abstention by the Congress defeated the motion, which set a very bad precedent, and earned a bad name for the party. That event has encouraged some judges to take a very rigid stand: not to resign even when serious allegations are made against them by responsible persons. It has had a negative impact on the minds of these people, as errant judges assume nothing will happen to them since impeachment is such a difficult procedure. This has been a serious setback to the independence and the credibility of the judiciary.

Thereafter, there have been a number of cases involving judges of against whom serious allegations of misconduct have been made. There have been cases where criminal prosecution was also initiated. Shamit Mukherjee of the Delhi high court and Nirmal Yadav of the Punjab and Haryana high court are examples. There have also been some cases where the Chief Justice of India did not give his permission to proceed; such permission is required in law. K. Veeraswamy, a former chief justice of the Madras high court, was prosecuted for having disproportionate assets. The real point is that because impeachment is difficult and uncertain, some judges behave irresponsibly.

In the Justice Soumitra Sen case currently before Parliament, a committee was set up, consisting of a sitting judge of the Supreme Court, Justice B. Sudershan Reddy, an eminent lawyer like F.S. Nariman, an eminent judge like Chief Justice Mukul Mudgal of the Punjab and Haryana high court. That committee found this gentleman guilty of retaining the monies of a client that he received as an advocate-receiver, and of holding on to that money in his account even after becoming a judge of the high court. He returned the money only later, after the high court ordered him to do so. This was considered to be misbehaviour on the part of the judge.

Instead of accepting the findings given by an impartial committee, Sen has chosen to challenge the findings in Parliament. This isn’t a healthy development. The Rajya Sabha has since voted for his impeachment. Now it all depends on the vote in the Lok Sabha. According to me, in principle, it is not a wise decision to make MPs the custodians of judicial ethics and judicial conduct. If they are to apply their own standards of probity to the misbehaviour of judges, they might find it difficult to find him guilty of serious misbehaviour warranting removal. Therefore, there should be another method for easier removal of a judge found to be guilty of doubtful integrity.

I suggest an amendment of the Constitution to incorporate a provision permitting the immediate removal of a judge who, in the opinion of the collegium of the Supreme Court is a person of doubtful integrity and doesn’t deserve to remain in office. He can be paid some compensation in lieu of the forsaking of service, instead of having to suffer him on the bench with doubts about his honesty in the minds of the public. The judicial system cannot afford to have such black sheep on its rolls.

If such a provision is made, it can be applied to public servants found to be of doubtful integrity. Proving corruption in a court of law is difficult because the bribe-giver and -receiver will thwart all attempts to prosecute them. The same problem arises with departmental enquiries. Even in those rare cases where prosecution succeeds, it takes a long time and by the time the decision comes, the judiciary would have suffered an irreparable loss. On the other hand, if such people are removed forthwith, on payment of some compensation, the system would be much healthier and will enjoy greater credibility.

Those inclined to accept gratification will also be under check for fear of removal forthwith if discovered. It will have a salutary effect even on the existing judges and will instill fear in their minds, so that they do not resort to corrupt ways, and remain honest. Of all the institutions, the judiciary especially cannot afford to have corrupt persons in its ranks. Therefore I strongly recommend such a provision being made in the Constitution. In that case, the impeachment procedure would become redundant.

There is a judicial accountability bill in the works, but well intentioned as it is, it does not go far enough, and does not have adequate teeth to deal with the problem effectively. There should be a provision for the suspension of a judge when complaints against him are being investigated. At the same time, we must take care to ensure that disgruntled litigants do not level false accusations against judges who might have decided against them. We have to protect judges from such baseless complaints. The judicial accountability bill will have the unintended effect of allowing false complaints to be made, which is not conducive to the independence of the judiciary. There is no provision for the speedy removal of an errant judge.

The Supreme Court has been trying an in-house procedure, but it is not a transparent one. There is a feeling that cases are pushed under the carpet for fear of adverse publicity. Therefore, there is a clear need for a transparent mechanism of accountability for judges. Even in the matter of declaration of assets in public, there was hesitation within the judiciary. It is necessary to ensure transparency in these matters in order to sustain the confidence of the people in the system.

The writer is a senior advocate in the Supreme Court, and an expert in constitutional law

http://www.financialexpress.com/news/why-is-it-so-hard-to-budge-a-judge/834013/0

Amendment to Article 243 D of the Constitution of India for enhancing reservation for women in Panchayats

A representation of the Lion Capital of Ashoka...

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The Cabinet today approved the proposal for moving an official Amendment to the Constitution (One hundred and Tenth Amendment) Bill, 2009 for enhancing reservation for women in Panchayats at all tiers from 1/3rd to at least 50%. The Constitution (One hundred and Tenth Amendment) Bill, 2009 was introduced in the Lok Sabha on 26.11.2009. The official Amendment proposes to add word ‘rural’ before the word ‘population’ as and where the same occur in 1st Proviso of Clause (2) (iii) of the Constitution (One hundred and Tenth Amendment) Bill, 2009. This Provision will apply to the total number of seats filled by direct election, offices of Chairpersons and seats and offices of Chairpersons reserved for Scheduled Castes and Scheduled Tribes. Enhancement of reservation for women in Panchayats will facilitate more women to enter the public sphere and this will lead to further empowerment of women and also make Panchayats more inclusive institutions, thereby improving governance and public service delivery. The addition of word ‘rural’ before word ‘population1 occurring in the 1st Proviso of Clause (2)(iii) of the Rill will reflect appropriate demographic representation of categories of population for whom reservation is made.

At present, out of the total elected representatives of Panchayats numbering approximately 28.18 lakh, 36.87% are women. With the proposed Constitutional Amendment, the number of elected women representatives is expected to rise to more than 14 lakh. Having more elected women representatives would benefit the entire population of the States and UTs where Panchayati Raj is in existence.

Ministry of Panchayati Raj had moved a Bill for amendment to Article 243D of the Constitution on 26.11.2009 after approval of the Cabinet for enhancing reservation for women in (i) the total number of seats to be filled by direct election, (ii) offices of chairpersons and (iii) in seats and offices of chairpersons reserved for SCs and STs, to 50% in all tiers of Panchayats. The proposed official amendment, as indicated above, in the original Amendment Bill will be moved in the Lok Sabha at the earliest.

All States / UTs are parts thereof to which Part IX of the Constitution applies would be covered (Part IX does not apply to Nagaland, Meghalaya and Mizoram, tribal areas of Assam and Tripura and hill areas of Manipur).

Background

The Constitutional Amendment Bill for enhancing reservation for women in Panchayats at all tiers from one third to one half was introduced in Lok Sabha on 26.11.2009 with the approval of Cabinet in its meeting on 27.08.2009. The Bill was referred to Parliamentary Standing Committee on Rural Development by Hon’ble Speaker on 21.12.2009. The Committee has recommended that word ‘rural’ be added before word ‘population’ occurring in Clause 2 (iii) of the original Amendment Bill in order to maintain better demographic representation to SCs and STs class. In view of this, it has been decided to make official amendment accordingly in the Bill already under consideration of Lok Sabha.

MORE EQUAL THAN MOST

Indira Gandhi

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Many Indian politicians still like authoritarian democracy

ASHOK MITRA IN THE TELEGRAPH

A dose of cynicism is in order. The corporate sector already occupies all the commanding heights in the polity. Hullabaloo over the contents of the lok pal bill cannot but be only a divertissement: let controversy rage over the modalities of fighting corruption in high places, the interregnum will provide enough breathing space to plan new strategies to cover up shenanigans-by-courtesy-of-neo-liberalism. Most of the Supreme Court judges smitten by the activism bug are also bound to retire meanwhile. Once the judicial passion gets spent, anti-graft crusaders too will return to their cloister. Calm, too, will automatically return to the nation’s capital which is the centre of the Indian universe.

The debate on the modalities of tackling corruption in high places has nonetheless yielded one useful by-product: we now have a clue to how some minds that matter are working. A major issue apparently dividing the government and the motley crowd of so-styled civil society warriors is whether the prime minister should or should not come under the purview of the lok pal’s surveillance. Prima facie, there is no reason why he/she should not. He/she may be primus inter pares, but is still a minister; if other ministers come under the lok pal’s scanner, the prime minister too ought to. The government and the party that heads the government coalition are not willing to go along; they abhor the idea of treating the prime minister on a par with other ministers. As points and counterpoints fly across the television channels, the heavyweight of a cabinet minister who has emerged as the principal spokesperson on behalf of the government shot a rhetorical question: is there any country in the world where its prime minister has ever been charged with corruption? The minister was confident there was none. It is therefore, he concluded, ridiculous — and demeaning to the country by implication — to introduce any legal provision to prosecute our prime minister on grounds of corruption; the lok pal must not be allowed to embark on a fishing expedition to find out whether the prime minister has or has not deviated, in the conduct of public affairs, from the straight and narrow path.

Rhetoric deserves counter-rhetoric. Can the official super spokesperson cite the instance of any other country where a prime minister admits that he had been presiding over a bunch of ministers some of whom were corrupt to the core but he/she will not take responsibility for their misdeeds and feels no reason to resign? Do not certain other facts stare at our face too? In Japan, it is standard political practice for the prime minister to seek forgiveness of the people for any major or minor dereliction of duty on the part of the government or any individual minister and vacate office without further ado. In Britain, Harold Macmillan stepped down as prime minister owning responsibility for some sexual dalliance on the part of one of his junior colleagues. Once the convention is firmly established that under circumstances which embarrass the regime the prime minister resigns, no occasion arises to prosecute him/ her. The person elected president is both head of state and head of government in the United States of America. In not too distant a past, one such president, Richard Nixon, had to resign from his august office on the eve of his impeachment in accordance with procedures spelled in the nation’s constitution.

Caesar’s spouse may be above suspicion, but Caesar himself is not in most parts of what is known as the democratic world. The obtuseness embedded in the argument that the prime minister is no ordinary mortal, therefore, provides food for some thought. Democracy means freedom of choice. Is that freedom being availed of to contribute a new definition of democracy itself? Perhaps the intent is to drop the hint that if there could be such a phenomenon as popular democracy or guided democracy, why not accept the notion of authoritarian or totalitarian — or, for the matter, dynastic — as well; others might abide the question, but the prime minister — conceivably belonging to only one particular family — would be free, the ordinary laws of the land would not apply to him/her. Since, exception supposedly proves the rule, the exceptional treatment of the office and person of prime minister would confirm India’s standing as the world’s largest democracy.

Much of this, though, is not original thought and has a distinguished antecedent. Let there be a flashback to the year 1975. Indira Gandhi was peeved no end by that silly judgment of the up-to-no-good Allahabad High Court holding her guilty of electoral malpractices. The judgment, how annoying, imperilled her tenure as prime minister. Poor she; in the event, declaring an Emergency alongside suspension of the fundamental rights granted by the Constitution was the only alternative left to her. It is however an ill wind that does not yield somebody at least some good. The congenial ambience of the Emergency made it easy for Indira Gandhi to ram through a constitutional amendment. The Constitution (39th Amendment) Act of 1975 introduced a special proviso concerning the election to Parliament of the prime minister and the Speaker of the Lok Sabha; no court in the country was permitted to question, on any ground whatsoever, the validity of the election of these two eminences. The amendment was made retroactive, thereby rendering the Allahabad High Court’s verdict on Indira Gandhi’s election ultra vires of the Constitution; it was like waving a magic wand. Another point is also worth noticing. An authoritarian approach to things does not amount to abandoning a sense of aesthetics: it was a bit inelegant to treat the prime minister as a sui generis case; to keep her/him company, the Speaker of the Lok Sabha was tagged on to constitute the duet the validity of whose election to Parliament would be beyond the reach of the legal process.

Indira Gandhi’s experiment with totalitarian democracy met a sorry end in 1977. The Janata regime that followed could at least take time out from its unending internal squabbles to pilot the Constitution (44th Amendment) Act of 1978 which got rid of the 39th amendment; the prime minister (and the Speaker of the Lok Sabha) re-entered the earth and were once more at par with one billion or thereabouts of other citizens who make up the nation.

It is given to human beings to learn from experience. Since democracy grants freedom of choice, it is equally the privilege of human beings, or any collection of human beings, not to learn from experience. Maybe decision-makers in the country’s largest political party have not ever been able to forsake their passion for authoritarian democracy. Was it not sheer bliss to be ruling during those two heavenly years between 1975 and 1977? The wishes and whimsies of an urchin from you-know-which family had the imprimatur of law, thousands of recalcitrant and potentially recalcitrant elements could be locked up without trial in prison, encounter deaths could take care of cheeky, restless youth, the wretched inmates of ramshackle slums besmirching the texture of metropolitan beauty could be loaded like cattle in trucks and dumped in a wilderness fifty or a hundred kilometres away.

Possibly the memory of that paradise still haunts and the blueprint of a new edition of authoritarian democracy is firmly etched on the subconscious. The occasion of the ersatz debate over the nitty-gritty of the lok pal bill is being put to excellent use. It is a sort of a preview of the re-touched dream: the prime minister is no ordinary citizen, she/he is the be-all and end-all of Indian democracy, not just holier than holy, but the holiest; how can anyone even dare to suggest that he/she should be the target of dirty investigation for this or that piffling alleged misdemeanour while in the pursuit of official duties?

If the incumbent prime minister assumes that such solicitude is to protect his dignity and honour, he was born yesterday

http://www.telegraphindia.com/1110701/jsp/opinion/story_14163144.jsp

Should water be moved to Concurrent List?

Ramaswamy R. Iyer IN THE HINDU

Putting water on the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided.

The Union Ministry of Water Resources has for long been arguing for a shift of water to the Concurrent List without any serious expectation of its happening, but has now begun to pursue the idea more actively. The Ashok Chawla committee, which was primarily concerned with the question of rationalising the allocation of natural resources with a view to reducing the scope for corruption, was reported by the media to have recommended inter alia the shifting of water to the Concurrent List. There seems to be no such specific recommendation in the draft of the Committee’s report that one has seen, but the possibility is referred to in the text and there is an Annexe on the subject. These developments have revived the old debate.

Let us first be clear about the present constitutional position in relation to water. The general impression is that in India water is a State subject, but the position is not quite so simple. The primary entry in the Constitution relating to water is indeed Entry 17 in the State List, but it is explicitly made subject to the provisions of Entry 56 in the Union List which enables the Union to deal with inter-State rivers if Parliament legislates for the purpose. This means that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river, say the Ganga or Yamuna or Narmada, should be “under the control of the Union”, it can enact a law to that effect, and that law will give the Union legislative (and therefore executive) powers over that river. That enabling provision has not been used by Parliament. No law has been passed bringing any river under the control of the Union. Under Entry 56, Parliament did enact the River Boards Act 1956 providing for the establishment of River Boards for inter-State rivers, but no such board has been established under the Act. That Act is virtually a dead letter. The reasons are political, i.e., strong resistance by State governments to any enhancement of the role of the Central government.

Is the present constitutional division of legislative power relating to water between the Union and the States satisfactory? The Centre does not think so. None of the Commissions that has gone into the subject so far has recommended a change, largely because it seemed unrealistic. (The Sarkaria Commission thought that a change was unnecessary.)

The present writer had earlier argued against a move to shift water to the Concurrent List on two grounds. First, a move to put water into the Concurrent List at this stage will be generally regarded as a retrograde step that runs counter to the general trend towards decentralisation and enhanced federalism, and it will face serious political difficulty because there will be stout opposition from the States. Secondly, an entry in the Concurrent List will mean that both the Centre and the States can legislate on water, but the Centre can already do so in respect of inter-State rivers under Entry 56 but has not used that power. It seemed sensible to use that enabling provision, and also re-activate the River Boards Act, rather than pursue the difficult idea of a constitutional amendment to bring water on to the Concurrent List.

It will be seen that the above arguments against pursuing the idea of moving water to the Concurrent List are practical ones: the political difficulty of doing so, and the fact that the Centre can do certain things even without such a shift. That does not amount to a statement that there is no case for the shift. Let us ignore political and practical considerations, and ask: if the Constitution were being drafted for the first time now, where would one put water? The obvious and incontrovertible answer is: in the Concurrent List. There are several reasons for saying so.

First, it appears that to the Constitution-makers ‘water’ meant essentially river waters and irrigation. This is quite evident from the wording of the entries. In that context, it might have appeared appropriate to assign the primary role to the States, and provide a specific role for the Centre in relation to inter-State rivers. However, even from that limited perspective, a primary rather than a secondary or exceptional role for the Centre might well have been warranted: most of our important rivers are in fact inter-State, and inter-State (or inter-provincial) river water disputes were an old and vexed problem even at the time of drafting the Constitution.

Secondly, that limited perspective is in fact inadequate. Water as a subject is larger than rivers; ponds and lakes, springs, groundwater aquifers, glaciers, soil and atmospheric moisture, wetlands, and so on, are all forms of water and constitute a hydrological unity; and there is more to water than irrigation. If the environmental, ecological, social/human, and rights concerns relating to water had been as sharply present to the makers of the Constitution as they are to us, it seems very probable that the entries in the Constitution would have been different. (Incidentally, there are serious concerns now relating to groundwater — rapid depletion of aquifers in many parts of the country, the emergence of arsenic and fluoride in many States, etc. — and it is interesting that there is no explicit reference to groundwater or aquifers in the Constitution.)

Thirdly, the Constitution-makers could not have anticipated the sense of water scarcity and crisis that now looms large. It is clear that while action will be called for at the State and local levels, the perception of a crisis casts a great responsibility on the Centre: national initiatives will definitely be called for.

Fourthly, a new factor not foreseen even a few decades ago is climate change and its impact on water resources. This is a subject which is still under study and research, but it is clear that coordinated action will be called for not only at the national level but also at the regional and international levels. The Central government has necessarily to play a lead role in this regard.

The theoretical case for water being in the Concurrent List is thus unassailable. Of all the subjects that are or ought to be in the Concurrent List, water ranks higher than any other. The practical and political difficulties of shifting it there remain, but these would need to be overcome.

However, if those difficulties prove insuperable, then we have to settle for the second best course (a modest one) of greater use by the Centre of the legislative powers relating to inter-State rivers provided for in Entry 56 in the Union List, and re-activation of the dormant River Boards Act 1956. It would further have to be supplemented by recourse to the wide-ranging provisions of the Environment (Protection) Act 1986 (EPA). It is of course possible for Parliament to legislate on a State subject if a certain number of State assemblies pass resolutions to that effect: that was the route followed in the case of the Water (Control and Prevention of Pollution) Act 1974.

At present, the EPA is being extensively used by the Centre for water-related action. For instance, the Central Groundwater Authority was set up in 1998 by a notification under the EPA. More recently, when it was considered necessary to set up a National Ganga River Basin Authority this was done under the EPA, instead of following the right but difficult course of enacting legislation under Entry 56.

Finally, putting water into the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided. Legislation and executive action must continue to be undertaken at the appropriate level (Central, State or local) in each case. The subsidiarity principle, i.e., the principle that decisions must be taken at the lowest appropriate level, will continue to be valid.

http://www.thehindu.com/opinion/lead/article2113384.ece