Emergency turns 39‏

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It has been 39 years since the ill-fated day in the Indian history, when political expediency presided over rule of law and emergency was declared. It was that period of free India which exists as the biggest blotch on democracy.

It all began with the High Court of Allahabad declaring Indira Gandhi’s election to the Lok Sabha, void on grounds of electoral malpractice. Indira Gandhi had won her 1971 election from Rai Bareilly against the Socialist Leader Raj Narain. Raj Narain had filed an election petition in the Allahabad High Court challenging the validity of Mrs. Gandhi’s election. His lawyer in the Allahabad High Court was Shanti Bhushan. On June 12, 1975, Justice Jagmohan Lal Sinha found the sitting Prime Minister of India Mrs Indira Gandhi guilty. He declared her election “null and void” and forbade her from fighting elections for six years.

In his brilliant essay, Justice with a Fine Balance, the noted lawyer AG Noorani discloses the concluding words of Justice Sinha: “I regret my inability to accept her evidence, on one point; her plea has no legs to stand on, on another; and that it does not bear any scrutiny, on a third.”

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“Justice Sinha”, wrote Noorani, “was heir to the older tradition – dispensing justice according to the law, not personal whim or political philosophy. They do not make men like him anymore.”

She then got surrounded by appeals from all corners to resign. On June 24, 1975, Justice Krishna Iyer granted a conditional stay of the order on the usual terms. Indira Gandhi could not vote or participate in the proceedings as a Member of Parliament but could sign the Register of Attendance to save the seat. She could participate in the proceedings as Prime Minister, but without a vote. “There will be no legal embargo on her holding the office of Prime Minister,” Justice Krishna Iyer pointedly added. He referred to the dharma of politics and insisted that equal protection of the law could not make a difference in favour of the Prime Minister, the great proposition being “Be you ever so high, the law is above you.” Justice Krishna Iyer recalls the darkest hour of the Supreme Court when except Justice (H R) Khanna, the other four judges of the Bench upheld the Emergency with all its macabre implications. That was the darkest hour of the Supreme Court. Justice Krishna Iyer rightly stated that if the Dred Scott case decided by the US Supreme Court upheld slavery, our court was in soulful company when upholding the Emergency.

The very next day, in the dead of night, Indira Gandhi imposed Emergency, imprisoned leaders of the Opposition and imposed press censorship.

On August 5-6, the Election Laws (Amendment) Act was enacted to amend the law retrospectively and power to disqualify an elected candidate was solely vested in the President, excluding even the Election Commission. On August 7-8, Parliament enacted the Constitution 39th Amendment Act, 1975. Its effect was to exclude the court’s jurisdiction on disputed elections to higher offices, including the Prime Minister’s, but without setting up an alternative forum. At about 11pm she, accompanied by Siddhartha Shankar Ray, West Bengal’s chief minister and a leading lawyer, went to Rashtrapati Bhavan to get President Fakhruddin Ali Ahmed’s signatures on the Emergency proclamation. Ray explained to him that the prime minister’s word was enough. No cabinet resolution was needed. The president complied.

Within a matter of minutes, people standing in opposition, including Morarji Desai and JP Narayan were awaken from their sleep and arrested.

The Government was suddenly  became all-powerful, mighty with absolute powers without checks. As John Grigg wrote in The Spectator, “Nehru’s ‘tryst with destiny’ seemed to have been turned into a tryst with despotism — and by his own daughter”. Others commented that with a single stroke of a “pliant president’s pen”, the world’s largest democracy was reduced to a “tin-pot dictatorship”, the likes of which then thrived in the Third World.

The declaration of emergency under Article 352 of the Constitution was convoyed with a Notification under Article 359 suspending fundamental rights under Articles 14, 19, 21 and 22.

All the newspapers were subjected to pre-censorship. No news critical of the Government could be published. The right to oppose the Government was taken away. No protests were allowed anywhere in the country.

The Supreme Court in the habeas corpus case ruled that even though political detainees have been illegally detained, they have no right to approach the court and seek relief. The Government took the position that even if a detainee was physically killed, he could not approach the court.

Civil rights stalwart Rajni Kothari describing this period, states that, “It was a state off-limits, a government that hijacked the whole edifice of the state, a ruling party and leader who in effect treated the state as their personal estate. It was the imposition of a highly concentrated apparatus of power on a fundamentally federal society and the turning over of this centralized apparatus for personal survival and family aggrandizement. It was one big swoop overtaking the whole country spreading a psychosis of fear and terror with the new upstarts (Sanjay and all) storming away through whatever came their way, pulling it all down and calling boo to it all. And it happened in this country after 28 years of democratic functioning”.

July 1975 Review paper by the Government explained: “The declaration of Emergency and the various actions taken by the Government to restore discipline, order and stability in the country have been welcomed by people from various strata of Indian society. The Prime Minister has said that the attempt of the Government is to put democracy back on the rails.”

But the citizens weren’t impressed. They asserted their mandate in early 1977, after the end of the Emergency and dethroned the Congress government, an Opposition combine came to power with near two-third majority.

Even after 39 years since the darkest hour of Indian democracy, the remnants of such a situation have still been evident. When the state threatened Maoist sympathizers with imprisonment under the repressive Unlawful Activities (Prevention) Act, civil rights activists retorted: “We consider this as an attack on civil society reminiscent of ‘Emergency’ era.’

In the gruesome Bhopal episode, those faulting Rajiv Gandhi for the ‘escapade’ of Union Carbide chief Warren Anderson were dubbed as ‘unpatriotic’ by Congress minions, reminiscent of Emergency days when anyone criticizing Indira Gandhi was imprisoned.

The disgraceful amendments to the election law survive to this day. The revised definition of “candidate” survives. He becomes one only when he files his nomination papers (Section 79 b), even if he has spent a fortune earlier on his campaign or committed other abuses. Under a new Explanation 3 in Section 123, resignation of a government official takes effect on its publication in the official gazette.

There have been several promises since then. On September 12, 1979, Chief Election Commissioner S.L. Shakhdhar called for their repeal. In June 1977, Parliament passed a Bill restoring to the Supreme Court the power to decide disputes relating to presidential and vice-presidential elections. The Bill was supported by all sections of the House, including the Congress. Law Minister Shanti Bhushan said that he proposed to bring forth a comprehensive measure on the reform of the election law. His article on Independence Day cited the amendments to the election law and the Constitution, among “the more glaring distortions” of the former regime.

In his address to Parliament on March 28, 1977, acting President B.D. Jatti said that the government would take steps to secure the repeal of the amendments which “defined corrupt practices and afforded protection to electoral offences by certain individuals by placing them beyond the scrutiny of the courts”. Such a measure was promised in the Janata Party’s manifesto as well. The pledges were listed along with others for the repeal of the repressive laws. They were broken.

Even after 4 decades, the future course of action is muddled with remnants of the hour that was. The blotch on the world’s biggest democracy remains, as do the survivor antiquities of the era. Winston Churchill’s famous quote “Those who fail to learn from history are doomed to repeat it” sums it up our situation well. The popular mandate brought Mrs. Gandhi to power, and the same overthrew her, reinstating their power. This will be done whenever a similar power rises to destroy the country’s democratic makeup, that is if the lessons are still unlearnt.

The controversial supersession of Justice Hegde was another unfortunate episodes in the history of Indian judiciary. On April 25, 1973 the then Prime Minister, Indira Gandhi, superseded three senior Supreme Court judges- J.M. Shelat, A.N. Grover and K.S. Hegde and appointed A.N. Ray as Chief Justice of India. Hegde resigned in protest.

The reason for this supersession was that when Mrs. Gandhi appealed in Supreme Court against the admission of certain evidence in the Indira Gandhi election case from Allahabad High Court, the SC had ruled that the evidence is admissible. The judge who led the bench was K.S Hegde. The PM and her advisers didn’t want a similar fate in her appeal to the Supreme Court. Next to have a similar fate was Justice Grover. Even he did not have a pro-government record, so he too was superseded.

The day A.N Ray took oath 7000 lawyers in Bombay High Court and 3000 lawyers in Madras High Court boycotted the court in protest.

This time it’s Mr. Gopal Subramanium who has been denied his due, the post of a Supreme Court judge which he rightly deserved. He blames his independence and integrity for the denial. Differences between the organs of the Constitution cannot be trounced. It is in fact, the core theme of democracy to debate on the debatable issues and determine them in the best interests of the people. However independence of the Judiciary cannot be trumped for achieving the same.

Appointment of cabinet ministers with criminal past must be left to the wisdom of PM: Supreme Court.

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An apex Court bench comprising of Chief Justice R.M. Lodha, Justice Dipak Misra, Justice Madan B. Lokur, Justice S.A. Bobde and Justice Kurian Joseph delivered a land mark judgment on Wednesday, observing that the Prime Minister’s power to choose members of his cabinet cannot be restricted. It has left it to the wisdom of the PM and CMs not to recommend such names to the President and Governor.

Drawing a line between executive discretion and judicial review, the verdict laid down the constitutional trust held by the office of the Prime Minister and said “.. it can always be legitimately expected… the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a minister of the council of ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less.”

The writ petition under Article 32 of the Constitution of India was filed by the petitioner, Manoj Narula, as pro bono public assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes.

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The Court interpreted the scope and purpose of Articles 75 and 164 of the Constitution of India regard being had to the text, context, scheme and spirit of the Constitution.

Criminalisation of politics was discussed as being an anathema to the sacredness of democracy. Commenting on criminalization of politics, the Bench noted the Court’s observation in the case of Dinesh Trivedi, M.P. and others v. Union of India and others, where the faults and imperfections which have impeded the country in reaching the expectations which heralded its conception, were lamented.

The Bench asserted, “It is worth saying that systemic corruption and sponsored criminalization can corrode the fundamental core of elective democracy and, consequently, the constitutional governance.”

In this context, there are recommendations given by different committees constituted by various Governments for electoral reforms.

Justice J.S. Verma Committee Report on Amendments to Criminal Law has proposed insertion of Schedule 1 to the 1951 Act enumerating offences under IPC befitting the category of ‘heinous’ offences. It recommended that a provision should be engrafted that a person in respect of whose acts or omissions a court of competent jurisdiction has taken cognizance under Section 190(1) (a), (b) or (c) of the Code of Criminal Procedure or who has been convicted by a court of competent jurisdiction with respect to the offences specified in the proposed expanded list of offences under Section 8(1) shall be disqualified from the date of taking cognizance or conviction, as the case may be. It further proposed that disqualification in case of conviction shall continue for a further period of six years from the date of release upon conviction and in case of acquittal, the disqualification shall operate from the date of taking cognizance till the date of acquittal.

Even the Law Commission, in its 244th Report, 2014, has suggested amendment to the 1951 Act by insertion of Section 8B after Section 8A, after having numerous consultations and discussions, with the avowed purpose to prevent criminalization of politics. It proposes to provide for electoral reforms.

Article 84 of the Constitution provides for qualifications for membership of Parliament. Article 102 provides for disqualifications for membership. Similarly, Article 173 provides for qualification for membership of the State Legislature and Article 191 enumerates the disqualifications similar to Article 102.

The Parliament by the 1951 Act has prescribed further qualifications and disqualifications to become a Member of Parliament or to become a member of Legislative Assembly.  Section 8 of the Act stipulates the disqualification on conviction for certain offences.

The scheme of disqualification upon conviction laid down by the 1951 Act clearly upholds the principle that a person who has been convicted for certain categories of criminal activities is unfit to be a representative of the people. Criminal activities that result in disqualification are related to various spheres pertaining to the interest of the nation, common citizenry interest, communal harmony, and prevalence of good governance.

The Court also considered the “Doctrine of Implied Limitation” with regard to the question that whether taking recourse to this  principle of interpretation, this Court can read a categorical prohibition to the words contained in Article 75(1) of the Constitution so that the Prime Minister is constitutionally prohibited to give advice to the President in respect of a person for becoming a Minister of the Council of Ministers who is facing a criminal trial for a heinous and serious offence and charges have been framed against him by the trial Judge.

The Court was of the opinion that this would come within the criterion of eligibility and would amount to prescribing an eligibility qualification and adding a disqualification which has not been stipulated in the Constitution.  Hence, in the absence of any constitutional prohibition or statutory embargo, such disqualification, in our considered opinion, cannot be read into Article 75(1) or Article 164(1) of the Constitution.

With respect to the “Principle of Constitutional Silence or Abeyance”, the bench recognised the question to be posed here being whether taking recourse to this doctrine for the purpose of advancing constitutional culture, can a court read a disqualification to the already expressed disqualifications provided under the Constitution and the 1951 Act.  The answer was the inevitable negative, for there are express provisions stating the disqualifications and second, it would tantamount to crossing the boundaries of judicial review.

Next to be considered was the “Doctrine of Constitutional implications”. The Court observed that it was not possible to accept the submission that while interpreting the words “advice of the Prime Minister” it can legitimately be inferred that there is a prohibition to think of a person as a Minister if charges have been framed against him in respect of heinous and serious offences including corruption cases under the criminal law.

Besides, the bench also discussed the concept of Constitutional morality, good governance and Constitutional trust.

The use of the words “on the advice of the Prime Minister”, as per the Court, could not be allowed to operate in a vacuum to lose their significance.  It asserted, “There can be no scintilla of doubt that the Prime Minister’s advice is binding on the President for the appointment of a person as a Minister to the Council of Ministers unless the said person is disqualified under the Constitution to contest the election or under the 1951 Act, as has been held in B.R. Kapur’s case.  That is in the realm of disqualification.”

Two substantive reliefs were claimed in the writ petition. The first relief is for a declaration that the appointment of the Respondents as Ministers in the Government of India is unconstitutional.

The second substantive relief was for the framing of possible guidelines for the appointment of a Minister in the Central or State Government.

With regard to the second relief, the Court observed, “As far as this substantive relief is concerned, it is entirely for the appropriate Legislature to decide whether guidelines are necessary, as prayed for, and the frame of such guidelines. No direction is required to be given on this subject.”. 

Justice Madan B. Lokur expressed his views on the contentions raised and appreciated the Parliament for making a distinction between an accused person and a convict.

He concluded,

(i) To become a legislator and to continue as a legislator, a person should not suffer any of the disqualifications mentioned in Section 8 of the

Representation of the People Act, 1951; 

(ii) There does seem to be a gap in Section 8 of the Representation of the People Act, 1951 inasmuch as a person convicted of a heinous or a serious offence but awarded a sentence of less than two years imprisonment may still be eligible for being elected as a Member of Parliament; 

(iii) While a debate is necessary for bringing about a suitable legislation disqualifying a person from becoming a legislator, there are various factors that need to be taken into consideration; 

(iv) That there is some degree of criminalization of politics is quite evident; 

(v) It is not for this Court to lay down any guidelines relating to who should or should not be entitled to become a legislator or who should or should not be appointed a Minister in the Central Government.

Judicial Appointments Commission Bill: Kapil Sibal and Fali Nariman decide to challenge Constitutional Validity of the two Bills

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The two amendment Bills aimed at scrapping the collegiums system that has been in place for two decades now, will now reportedly come under scrutiny by the apex Court of the country. Former Union Law Minister Kapil Sibal and eminent Jurist Fali Nariman have decided to challenge the Constitutional validity of Constitution (121st Amendment) Bill, 2014, and the National Judicial Appointments Commission Bill, 2014.

Sibal reportedly stated, “The legislation as passed by the two Houses of Parliament violate the basic structure of the Constitution and it is my duty as a lawyer to seek legal remedy to this serious breach of Constitution by the government. The Supreme Court can and should go into this issue, especially since this pertains to the crucial matter of independence of judiciary.” The Petition is getting readied and will be settled soon.

It is interesting to note that Sibal was also a lawyer in the Second Judges’ case that established the collegium system. Sibal is concerned about some “serious problems” in the Bill. He feels that the Bill infringes upon the independence of the Judiciary, which has been considered as the basic structure of the Indian Constitution. He elaborates, “This Bill allows two members of the proposed NJAC to scuttle the appointment of an individual. How can you give veto power to any two members of the NJAC? Such a provision can be misused, adding that, “The judiciary would be called upon to look at the entire legislation, clause by clause, see if it meets the criteria of independence of the judiciary, the foundation stone of a vibrant democracy. This, I believe, is a basic feature of the Constitution. A judicial determination will have to be made on this issue.”

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Fali Nariman echoes Sibal’s concerns and states, “…The independence of the judiciary is now the cornerstone of the Constitution. And anything that is done which damages it is anathema and the people who decide are the judges of the Supreme Court.”

“Many lawyers including myself will move in that direction,” he said, suggesting that he may challenge the Bills.

Nariman, who was among the experts consulted by Law Minister Ravi Shankar Prasad, said that the composition of the proposed NJAC was not satisfactory as it will have only three judges out of six members. According to him, the procedure that provides a veto power to any of the two members to scamper any proposal made by a majority is not acceptable.

“I am sure the Law Minister did not intend all this. He never said all this. We never knew it was going to be the position. What was the tearing hurry?” Nariman asked, adding that, “I personally think there has been some super important event that has occurred which has left all of us flummoxed…some new development in the party itself of which none of us are aware.”

Earlier, referring to the problem areas in the Bill, former Law Minister Kapil Sibal reportedly said, “The main issue relates to independence of the judiciary. This Bill allows two members of the proposed NJAC to scuttle the appointment of an individual. How can you give veto power to any two members of the NJAC? Such a provision can be misused. Then there is the matter of unanimous reiteration if the President refers the names back for recommendation. Just one member can, through his veto, veto any appointment. The Executive may, through this veto power, reject names till it gets an appointment of its choice.”

Former SC Judge K.T. Thomas also voiced his opinion regarding the Bill and defended the Collegium system. He writes, “What is the guarantee that only persons of impeccable and proven integrity, coupled with the moral strength to assert their dissent (if any) on record, would fill up the JAC? Having been a member of the collegium of the Supreme Court, I know how outsiders seek (and get) access so as to canvass for the decision-making process. I doubt that the situation would change if the proposed composition of the JAC were to be implemented. I am also not prepared to say that the selection of “eminent persons” would not become diluted in due course, particularly because of the vagueness in standardizing who these “eminent persons” can be. I am skeptical of the outcome of the JAC in the long run, given that the scope for manipulation and favoritism cannot be fully eliminated even within it.”

The Collegium system has off late seen a lot of criticism, especially in light of Justice Katju’s revelations. 

Read the National Judicial Appointments Commission Bill, 2014 and The Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 [Full Text]

National Judicial Appointments Commission: Judges would be transferred from one state to another like Governors, says Justice B.N. Agarwal

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According to former Supreme Court Judge, Justice B.N. Agarwal, the legislation and Constitutional amendment establishing the National Judicial Appointments Commission could lead to the Judges having a fate similar to the Governors, being transferred from one State to another.

He questioned the composition of the Commission, asking, “Why is there no criteria for these eminent persons, it is dangerous two can veto a decision taken by three senior most judges?”

Warning that the bill affects the basic structure of the Indian Constitution, Justice Agarwal stated, “If Judiciary is finished, democracy will be finished. This bill (National Judicial Appointments Commission) affects the independence of the judiciary, there is no doubt about it. The way Governors are being transferred to Mizoram, the Chief Justices and judges of the HCs will be transferred to newly created HCs in North East. No judge will be able to pass strong orders.”

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Justice Agarwal, who retired in 2009, is one of the longest serving members of the Supreme Court collegium. He advocated for the present system of appointment by the Collegium, reasoning that, “In the existing system, there could be differences amongst the judges about a particular choice, but there is no political interference. There is nothing wrong in the institution.”

He agreed that there have been mistakes in the past, stating, “Injustice was done to justice AK Patnaik and Justice GS Singhvi, both brilliant and upright judges. Their elevation (to the apex court) was delayed and they should have become and retired as Chief Justices of India.”

Justice Agarwal recalled instances of injustice meted out by the collegium system. “During UPA 1, advocate Rakesh Kumar was targeted because he represented CBI in fodder scam. A powerful person who was then part of UPA 1, apparently scuttled his appointment. It is only in UPA 2, when this person exited, Rakesh Kumar was appointed as a Judge of the Patna HC, where he is currently serving. His appointment was delayed by over one year, his file was sent back to us for reconsideration but we reiterated the recommendation, but then government sat over it and delayed it.”

He recalled the era before the collegium system was set into place and cautioned against the power of the present Government which is clearly stronger than UPA Government. He stated, “Even when there was primacy of the government, whatever Chief Justice said, was final. My father Justice N.L. Untwalia became Judge of Patna High Court, when he 42 years and 4 months, in 1957-1958. My recommendation in favour of my father was forwarded to the then President of India Dr Rajendra Prasad, who returned the file with a note: he is too young, there are older people, who if offered later, they may refuse. The Chief Minister, SK Sinha, however, supported Chief Justice and my father’s recommendation was reiterated, that is character.”

High Court cannot re-appreciate evidence while exercising Revisional Jurisdiction; Constitution Bench

The Constitutional Bench of Supreme Court of India, through its decision in Hindustan Petroleum Corporation Ltd. v Dilbahar Singh declared that the High Court ‘cannot re-appreciate evidence’ and can only find out “legality, regularity and propriety of the impugned” order. The matter was earlier referred to the Constitution Bench in light of conflicting Judgments of the Supreme Court in Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499] and Ram Dass v. Ishwar Chander and others [ AIR 1988 SC 1422]

The Constitution Bench headed by Chief Justice R M Lodha said “the consideration or examination of the evidence by the high court in revisional jurisdiction under these acts (rent control laws of different states) is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law.”

Before this judgment, the point of law in this regard was not clear as one judgment of the Supreme Court held that revisional court is not entitled to re-appreciate evidence while another judgment, also from the Supreme Court held that expression “legality and propriety” empowers the revisional court to reappraise the evidence while considering the findings of the first appellate court.

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Therefore, the matter was referred to the Constitutional Bench, so as to get an authoritative view on this point of law, and the Court declared that “We hold, as we must, that none of the above rent control acts entitles the high court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on because on reappreciation of evidence its view is different from court/authority below.”

The judgment delivered by the Constitutional Bench is a unanimous one, with Chief Justice Lodha being the author. The Bench consisting of Chief Justice Lodha, Justices Dipak Misra, Madan B Lokur, Kurian Joseph and S A Bobde also said “Where the high court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity”.

The Court also upheld the decision laid down in Rukmini Amma Saradamma v. Kallyani Sulochana and others; [(1993) 1 SCC 499]. The Bench also opined that “A finding of fact recorded by court/ authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law.”

It also went on to say “In that event, the high court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper,”

The Supreme Court said that the High Court has the power to satisfy itself the correctness, legality or propriety of the impugned judgment or order before it, however, the High Court “shall not exercise its power as an appellate power to reappreciate or reaccess the evidence for coming to a different finding on facts”

The Supreme Court differentiated between “appellate jurisdiction” and “revisional jurisdiction” to find out the scope and extent of “revisional jurisdiction” under the rent control law. The Court held that “Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not vice-versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision.

An appeal is continuation of suit or original proceeding, as the case may. The power of the appellate court is co-extensive with that of the trial court. Ordinarily, appellate jurisdiction involves re-hearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction,”

Making its stand clear, the Court sates “We are in full agreement with the word ‘propriety’ does not confer power upon the high court to re-appreciate evidence to come to a different conclusion but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it.”

“The High Court does not enjoy an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. This view is the correct view and we approve the same”

NUJS registrar suspended after report highlighting financial mismanagement

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NUJS registrar suspended after report highlighting financial mismanagement

NUJS Kolkata registrar Surajit Mukhopadaya was suspended today over allegations of financial impropriety that were raised by a judicial inquiry into NUJS and its management.

Vice chancellor Ishwara Bhatt said that “the order of suspension has been delivered on the registrar”, and that Mukhopadaya would now have to reply to it.

Bhatt added: “A disciplinary committee has been constituted. Inquiry is pending and it will come out with its observations against the others [named in the report].”

The suspension order was issued from the vice chancellor’s office, to ensure that the disciplinary committee, to be presided over by retired West Bengal civil servant Mihir Kumar Das, could proceed in its investigation in a fair manner, said Bhatt.

Mukhopadaya was not reachable for comment at the time of going to press.

Last month Legal News of India revealed that an inquiry committee led by ex Rajasthan high court Justice NN Mathur and two former government auditors, unearthed facts “indicative of financial mismanagement of funds by the university”.

However, another critical report produced by the Bar Council of India (BCI) in November 2013 on NUJS had been buried until published by Legal News of India last month.

SC proactively backs CCI: DLF to stump up full Rs 630 cr anti-trust penalty pending appeal

SC proactively backs CCI: DLF to stump up full Rs 630 cr anti-trust penalty pending appeal

A Supreme Court bench of justices Ranjana Prakash Desai and NV Ramana told real estate developer DLF that it should deposit with the court the entire penalty of Rs 630 crore that the Competition Commission of India (CCI) had imposed on it in 2011, pending the outcome of its appeal against the Competition Appellate Tribunal (Compat) order of May of this year.

DLF should pay Rs 50 crore within three weeks, Rs 580 crore within three months, and should undertake to pay another Rs 170 crore in interest if its apex court appeal should fail, reported IANS. DLF was fined for “highly abusive” apartment buyers agreements in several of its developments.

Judicial Review of a ‘Bill’ under Article 32: A Constitutionally Impermissible Proposition

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Introduction

Anxiety is fluctuating within the legal community in India as the Supreme Court of India (SC) will hear a batch of similar writ petitions that challenge the National Judicial Appointments Commission Bill, 2014 and the 121^st Constitution Amendment Bill, 2014, today. This anxiety can be explained in two ways; by a political battle on one hand and by pure interpretation of law on the other. This article is only concerned about the latter.

The Modi government had priorities. Circumstances demonstrate that implementing the above mentioned bills that intend to scrap the existing Collegium system of appointment of judges was one of the top priorities. The bills were recently passed by both the Lok Sabha and Rajya Sabha with a huge majority.

Subsequent to the passing of bills in the Parliament, several writ petitions were filed under Article 32 of the Constitution of India challenging the constitutional validity of these bills. The substantive argument raised in the petitions is that these bills violate the basic structure doctrine of the Constitution by diluting core principles like independence of judiciary and separation of powers. However, on a prima facie analysis itself, this so-called Fourth Judges case raises a significant constitutional question before the SC.

‘Law’ under Article 13 of the Constitution

It is needless to state that the impugned bills have not officially acquired the status of ‘law’ under Article 13. As the title of Article 13: ‘Laws inconsistent with or in derogation of the fundamental rights’ suggests, only a law in force, made by the legislative organ of the State can be challenged for violation of fundamental rights or the basic structure of the Constitution (Article 13 (2)). Therefore, under Article 32, the SC can only entertain petitions against laws that can be called so under Article 13.

There is a definite procedure under the Constitution that the legislature is mandated to follow when they formulate a law. In this case, the bills which have been passed by both the Houses have to cross one more constitutional step for it to be termed as a law under Article 13.

Article 111 of the Constitution and the President’s Role

Once a bill is passed by both the Houses, the next step for the Parliament is to present it before the President of India for his assent. This mandate is clearly prescribed under Article 111 which also confers on the President, the power to return a bill if he reasonably deems fit that some provisions or the whole bill needs reconsideration. According to the proviso of Article 111, upon such return by the President, the Houses ‘shall’ reconsider the bill accordingly. Therefore, if the bills regarding the National Judicial Appointments Commission are returned by the President for reconsideration, the Houses of Parliament have to reconsider it mandatorily in light of the word shall that appears in Article 111. This portrays that the President is not a mere rubber stamp authority in terms of giving assent to a bill. It cannot by any stretch of imagination be argued that the text of Article 111 is a mere formality. It is only upon the assent of the President that a bill acquires the status and force of a law as per Article 13.

Judicial Interpretation

The SC and High Courts have not dealt with this question to a great extent. However, there is a momentous Allahabad High Court judgment that throws substantive and healthy legal light on this subject.  In Chotey Lal v State of UP (AIR 1951 All 228), a division bench of the High Court dealt with the Zamindari Abolition & Land Reforms Bill which was challenged by way of a writ petition under Article 226 for violation of fundamental rights under Article 19. The question involved in this case was whether it was open for the courts to interfere with the process of formulating an enactment. The court categorically held that “Until a bill has become law, the legislative process not being complete, courts do not come into the picture at all”. Moreover, based on a textual and logical interpretation, the court held that as President is also part of the Union Legislature (Article 79), the legislative process would not be deemed to be complete unless the President gives assent to a bill. Hence, it is only after a bill has become the law of the land that the courts can assume jurisdiction under Article 32. Interestingly, the court also concluded that the expression ‘shall not make any law’ appearing in Article 13(2) does not confer jurisdiction upon the constitutional courts to interfere with the process of legislation making. The consequence of any other contrary interpretation would have been the dilution of the basic principle of separation of powers within the Constitution. The judgment is definitely sound in terms of interpretation of the Constitution’s text and according to the author, upholds the correct legal position on this issue.

It is noteworthy that in In Re: The Special Courts Bill, 1978 (AIR 1979 SC 478), the SC was consulted by the President under Article 143(1) of the Constitution to consider the question whether the Special Courts Bill, 1978 or any of its provisions, if enacted, would be constitutionally invalid. In this advisory opinion rendered by a seven judge bench of the SC, it was remarked that a bill which is being considered by the Parliament and is yet to receive the President’s assent may undergo extensive changes of fundamental character before it becomes a law finally.

In 2011, a three judge bench of the SC had held that the constitutional validity of a notification relating to a bill which was yet to be passed, cannot be made before the court as the bill is premature. Using the same logic, it can be clearly stated that a challenge against the constitutionality of a bill will be premature because a bill does not have the force and effect of a law according to the Constitution’s provisions.

Therefore, the legal nature of bills introduced in Parliament is such that they are not final in any sense until the President gives assent.

Conclusion

In light of the textual interpretation of the Constitutional provisions and the judicial precedents, the SC should treat the Fourth Judges case with a lens of scepticism. As it is not possible under the Constitution to subject a mere bill to judicial review under Article 32, the aggrieved petitioners have to wait till the President gives assent to the impugned bills in order to challenge their validity under the Constitution.

Since the Supreme Court has time and again sent signals that it favours the unconvincingly existing Collegium system where the judges themselves choose their brother judges, it has to be keenly seen how the highest constitutional court of India deals with this constitutional issue.

Challenge against 121st Amendment and National Judicial Commission Bill 2014 is premature; SC dismisses all the PILs challenging the Bills

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A Three Judges Bench of the Supreme Court consisting of Justice Anil Dave, Justice Chelameswar and Justice Sikri dismissed a batch of PILs challenging the 121st Constitutional amendment and National Judicial Commission Bill 2014 which provides for a new mechanism for appointment of Judges in higher Judiciary and for scrapping the collegium system prevalent for the past two decades. The Court held that the petitions are premature since the constitutional amendment bill is yet to be sent to states for ratification after which the President’s assent would come.

The PILs have been filed by former Additional Solicitor General Bishwajit Bhattacharya, advocates R. K. Kapoor and Manohar Lal Sharma and Supreme Court Advocates on Record Association [http://www.livelaw.in/challenge-121st-constitutional-amendment-scrapping-collegium-system-apex-court-agrees-hear-4-pils-august-25th/]. Senior Advocate Fali Nariman who appeared for the Supreme Court Advocates on Record Association argued that the question whether a bill violating basic structure of the Constitution could be challenged at this stage be referred to the Constitution Bench. But the Supreme Court dismissed the plea.

The Supreme Court Supreme Court Advocates on Record Association in their petition contended that “as a matter of historical record it must be added that almost simultaneously with the introduction and passage of the Constitution (One Hundred Twenty First Amendment) Bill No. 97C of 2014, in the Lok Sabha there was also introduced (in the Lok Sabha) on 11th August, 2014 the National Judicial Appointments Commission Bill No. 96 of 2014: (as a matter of fact the legislative Bill No.96 of 2014 was introduced even prior to the Constitution 121st Amendment Bill No. 97C of 2014).  The Legislative Bill was got passed in both Houses of Parliament by a voice vote taken even at a time when the provisions of Article 124(2) as originally enacted were in force (and even today continue to be in force) making the introduction, consideration and passing of the legislative Bill (the National Judicial Appointments Commission Bill No.96 of 2014) an exercise in futility and a nullity since with Article 124(2) as originally enacted in the Constitution remaining intact, there could be no introduction of or passing by Parliament of the legislative Bill known as the National Judicial Appointments Commission Bill 2014”

It is also contended that “the amending power under Article 368 of the Constitution is subject to the substantive limitations in that the basic structure cannot be altered or the basic features of the constitution destroyed.  This imposes a fetter on the competence of Parliament to amend the Constitution; and any amendment made in disregard of this limitation (it has been authoritatively held) goes beyond the amending power (e.g. Kihoto Hollohan vs Zachillhu And Others: 1992 (Supp) 2 SCC 651 at page 692-693 paras 63 to 65).  It has been authoritatively held by this Hon’ble Court (in a Series of judgments) that the independence of the Judiciary is part of the basic structure of the Constitution and hence unamendable”

The petition is filed on the following main grounds.

1. The proposed Constitution (One hundred and twenty first Amendment) Bill No. 97-C of 2014 as passed by the two houses of Parliament, by providing for a National Judicial Appointments Commission consisting of the Chief Justice of India; two other senior Judges of the Supreme Court next to the Chief Justice of India; the Union Minister in charge of Law and Justice; and two eminent persons to be nominated by a committee consisting of the Prime Minister, Leader of Opposition (or leader of single largest party in Lok Sabha) and the Chief Justice of India, takes away the primacy of the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court of India, next to the Chief Justice of India i.e. even if all three senior most judges of the Supreme Court of India collectively recommend an appointee, the appointment is liable to be vetoed by the other three members – one of whom is part of the executive (Minister in government) and the other two “eminent persons”) not selected unanimously but amongst the Prime Minister, CJI and leader of the Opposition in Lok Sabha.
2. Clause 3 of the proposed Constitution (One hundred and twenty first Amendment) Bill No. 97-C of 2014 as passed by the two houses of parliament introduces Article 124C in the Constitution of India as an integral part of the mode and manner of appointment of Judges which confers unbridled power to Parliament to regulate by ordinary law, inter alia, ‘the manner of selection of persons for appointment’ to the Higher Judiciary without any safeguards whatsoever and in particular without requiring Parliament to ensure at all times the Independence of the Judiciary as envisaged under the Constitution.  It has been held repeatedly by this Court that the doctrine of Basic Structure cannot be used to challenge ordinary legislation (1975 Supp SCC 1; 1996 3 SCR 721; 2006 7 SCC 1; 2010 11 SCC 1;). Therefore as per the law laid down by this Court, it would not be possible to challenge any law made under the proposed Article 124C on the ground that it results in the erosion of the Independence of the Judiciary thereby damaging the Basic Structure of the Constitution. Article 124C leaves open enormous scope for the Parliament, by ordinary legislation, to give primacy to the Executive or Veto powers to the Executive or other unchecked powers to the Executive for the appointment of Judges to the higher Judiciary.  Thus for instance, the second proviso to Sub-Clause 2 of Clause 5 and Sub-Clause 6 of Clause 6 of the proposed National Judicial Appointments Commission Bill No. 96-C of 2014, which has been passed as an ordinary Bill (and not as a Constitution Amendment Bill), provides that ‘the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation’. Not only does this very provision open possibilities for erosion of Independence of the Judiciary but such an ordinary law can even be easily amended to substitute for the words ‘two members’ the words ‘one member’ thus completely negating any effective role of the three senior most members of the Judiciary in appointment of Judges to the Supreme Court and the High Courts, and thus wholly transferring the power of appointment of Judge, of the Higher Judiciary to the Executive
3. The existing “guideline” in the form of the National Judicial Appointments Commission Bill, 2014 – also got passed by both Houses of Parliament – indicates quite plainly that if any two Members of the Commission (a Commission consisting of six Members – three sitting Judges and three non-Judge Members) do not agree to the recommendations of the three seniormost Judges of the Supreme Court of India for appointment, the appointment is not to be made (see second Proviso to Clause 5 and sub-clause (6) to Clause 6 of the Legislative Bill).
4. The criteria of suitability for appointment as a Judges is to be specified by “regulations” and these Regulations are to be made by “the Commission” where the three seniormost judges do not have a predominate vote.   This again is a total negation of the concept of the ‘independence of the judiciary and is violative of the basic structure of the constitution.

Coal Allocation between 1993 and 2009 illegal, arbitrary, non-transparent and were devoid of any procedure; Supreme Court

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In a landmark Judgment the Supreme Court today declared the Coal allocation between 1993 and 2009 illegal, arbitrary, non-transparent and were devoid of any procedure. A three Judge Bench headed by Chief Justice Lodha declared that the  entire  allocation  of  coal  block  as  per recommendations made by  the  Screening  Committee  from  14.07.1993  in  36 meetings and  the  allocation  through  the  Government  dispensation  route suffers from the vice  of  arbitrariness  and  legal  flaws.  “The  Screening Committee has never been consistent, it has not been transparent,  there  is no proper application of mind, it has acted on no material  in  many  cases, relevant factors  have  seldom  been  its  guiding  factors,  there  was  no transparency and guidelines have  seldom  guided  it.   On  many  occasions, guidelines have been honoured more in their breach.  There was no  objective criteria, nay, no  criteria  for  evaluation  of  comparative  merits.   The approach had been ad-hoc and casual.  There  was  no  fair  and  transparent procedure, all resulting in unfair  distribution  of  the  national  wealth.Common good and public interest have, thus, suffered  heavily.   Hence,  the allocation of coal blocks based on the recommendations made in  all  the  36 meetings of the Screening Committee is illegal”, held the Supreme Court.

The PILs were filed by ‘Common Cause’ and Advocate Manohar Lal Sharma. It is also held that “the allocation of coal blocks  through  Government  dispensation route, however laudable the object may be,  also  is  illegal  since  it  is impermissible as per the scheme of the CMN  Act.   No  State  Government  or public sector undertakings of the State Governments are eligible for  mining coal for commercial use.   Since allocation of coal is permissible  only  to those categories under Section 3(3) and (4), the joint  venture  arrangement with ineligible firms is also impermissible.   Equally,  there  is  also  no question of any consortium / leader / association in  allocation.   Only  an undertaking satisfying the eligibility criteria referred to in Section  3(3) of the CMN Act, viz., which has a unit engaged in  the  production  of  iron and steel and generation of power, washing of coal  obtained  from  mine  or production of cement, is entitled to the allocation in addition  to  Central Government,  a  Central  Government  company   or   a   Central   Government corporation.

It is also clarified that “As we have already found that the allocations made,  both  under the Screening Committee route and the  Government  dispensation  route,  are arbitrary and illegal, what should be the consequences, is the  issue  which remains to be tackled.  We are of the view that,  to  this  limited  extent, the matter requires further hearing.” The next hearing of the case will be on 1^st September.

PIL to ensure maximum voting: SC issues notice to Centre, EC

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The Bench of Justice Dattu and Justice Bobde issued notice to Central Government and Election Commission of India seeking a response from them on a public interest litigation seeking regarding maximum voting.

The petition seeks a direction from the Supreme Court to the Centre and ECI to frame guidelines to ensure that more citizens cast their votes in the polls.

Satya Prakash, the petitioner has stated that the concept of mandatory voting has had success in many countries including Argentina, Australia, Belgium and Brazil and seeing the benefits, it should be introduced in India as well.

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It was also said that the citizen of India enjoy a great number of rights granted by the Constitution of India, but when it comes to responsibility and duties, voting is not included in them. The petition also highlights the point that the low voter turnout is a matter of concern.

Concern on low voter turnout is not something new. The Union Government had also appointed a panel headed by late Justice J.S. Verma. The panel was to suggest on the issue of fundamental duties of citizen and the panel, in its report in 1998 had said “duty to vote in an election, especially to participate in a democratic process of the government and pay taxes, should be included in Article 51A of the Constitution.”

Article 51 of the Constitution of India is on fundamental duties and several duties of citizensare mentioned therein.

The petition also highlighted the provisions of Gujarat Local Authority Laws (Amendment) Bill, as per which all eligible voters in Gujarat must cast their ballot in Municipal, Nagarpallika and Panchayat elections or be subjected to punishment and the Non‐voters would have 30 days to explain their absence to avoid punishment.

People in favour of compulsory voting enumerate various benefits, the first being issue based elections as political parties will save time and money by focussing on issues, rather than asking people to vote. The second benefit being the fact that the government formed will also have a stronger mandate. However, the issue of implementation of such law is always in question.

The Supreme Court has seen some action in relation to voting rights off late, firstly in relation to NRI Voting and also in relation to voting rights of defence personnel

It could be the time, when the highest Court of the land starts considering voting as a duty.