Basic structure of the Constitution revisited
T.R. Andhyarujina ,The Hindu May 21,2007
The basic structure theory plays a useful part in our constitutional jurisprudence. But was there truly a judicial formulation by the Supreme Court of India of the basic structure doctrine in the Kesavananda Bharati case? An insider's unravelling of a fascinating story.
THIRTY-FOUR years ago, on April 24, 1973, thirteen judges of the Supreme Court assembled in the Chief Justice's court packed to its capacity with lawyers and laypersons. They delivered eleven judgments in India's most celebrated case in constitutional law — the Kesavananda Bharati case. For over three decades we have believed that in that case a majority of judges decided that Parliament has no power to amend the basic structure of the Constitution.
Revelations of how the Kesavananda case was decided have been disclosed in later interviews with those who were involved in the case, writings of scholars, and by a revealing autobiography of Justice Jaganmohan Reddy, one of the judges in that case. This writer, a counsel in the case, kept detailed notes of the proceedings of the case. We can now piece together a collated account of how the case was decided. At the end of it, the question arises — was there truly a judicial formulation of the theory of basic structure in that case, as it has come to mean today; and was the case decided in an atmosphere conducive to a detached determination of a highly contentious matter with political overtones?
To reverse the Golak Nath case (1967), which had held that Parliament had no power to amend fundamental rights, and in anticipation of a major constitutional battle, we now know that the government carefully selected some judges who would not be obstructive to its reversal. The case became a contest not only between the rival parties but apparently among some of the judges who were committed to their own strong views on Parliament's power to amend the Constitution. Justice Jaganmohan Reddy records this about some his colleagues: "I got the impression [from the first day] that minds were closed and views were determined."
The case was essentially a political fight in a court of law with a political background. It was conducted under continuous and intense pressure the likes of which it is hoped will never be seen again. One author has described the atmosphere of the court as "poisonous." A judge on the bench later spoke about the "unusual happenings" in the case. If the several "unusual happenings" in the case are related in detail, they will make one doubt if the decision in the case was truly a judicial one — expected from judges with detachment from the results of the controversy before them.
On April 24, 1973, the eleven separate judgments were delivered by nine judges; collectively these ran into more than 1000 printed pages. Six judges — Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy, A.N. Grover, and S. Mukherjea — were of the opinion that Parliament's power was limited because of implied and inherent limitations in the Constitution, including those in fundamental rights. Six other judges — Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V. Chandrachud — were of the opinion that there were no limitations at all on Parliament's power to amend the Constitution. But one judge — Justice H.R. Khanna — took neither side. He held that Parliament had the full power of amending the Constitution; but because it had the power only "to amend," it must leave "the basic structure or framework of the Constitution" intact. It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.
How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the eleven judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament's power was limited by inherent and implied limitations, passed on a hastily prepared paper called a "View of the Majority" for signatures by the thirteen judges on the bench. One of the conclusions in the "View of the Majority" was that "Parliament did not have the power to amend the basic structure or framework of the Constitution." This was lifted from one of the conclusions in the judgment of Justice H.R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.
By any reading of the eleven judgments, this conclusion could not have been the view of the majority. It was only the view of one judge — Justice H.R. Khanna. Some judges had no time to read all the eleven judgments as they were prepared under great constraints of time owing to the retirement of the Chief Justice the next day. Justice Chandrachud confessed that he had a chance hurriedly to read four draft judgments of his colleagues. No conference was called of all judges for finding out the majority view. The one conference called by the Chief Justice excluded those judges who were of the opinion that there were no limitations on the amending powers. Nor was the conclusion debated in court, as it ought to have been. The Chief Justice's action has been described by some as an act of statesmanship. Others believe it was a manoeuvre to create a majority that did not exist.
The verdict would have remained in this uncertain state but for accidental events following the decision. On August 1, 1975, with lightning speed and by an outrageous abuse of the amending power during the Emergency, Parliament made the 39th Amendment to the Constitution. This introduced Article 329 A of the Constitution — which sought to validate Indira Gandhi's election set aside by a judge of the Allahabad High Court without any contest, including her pending appeal in the Supreme Court.
On August 11, 1975, Indira Gandhi's election appeal against her disqualification was heard by five judges presided over by Chief Justice A.N. Ray. He had been appointed Chief Justice of India by the government the day after the judgments in the Kesavanada case — superseding three other judges who had decided against the unlimited power of Parliament to amend the Constitution. The government believed that with the amendment to Article 329A of the Constitution, her appeal would simply be allowed. But so outrageous was the amendment that all five judges declared it bad as it violated "the basic structure." Nevertheless, Indira Gandhi's appeal was allowed by an amendment made to the Representation of the People Act, 1951, which cured all illegalities in her election. The court could strike down constitutional law but not an ordinary law that carried out the same purpose. To many this seemed perplexing.
Everyone took it that the court had now approved the basic structure theory by striking down the amendment to Article 329A — everyone, that is, except Chief Justice A.N. Ray. He had stated in Indira Gandhi's case that the hearing would proceed "on the assumption that it was not necessary to challenge the majority view in Kesavananda Bharati case." On November 9, 1975, two days after the Indira Gandhi case was decided, the Chief Justice constituted a new bench of thirteen judges to review the Kesavananda Bharati case.
For two days, N.A. Palkhivala made the most eloquent and passionate argument against the review. On November 12, the third day, the Chief Justice announced suddenly at the very outset of hearing: "The bench is dissolved." Thus ended an inglorious attempt to review the Kesavananda judgment. Whatever the reasons for the dissolution of the bench, Chief Justice Ray's maladroit attempt to review the basic structure limitation gave it a legitimacy that no subsequent affirmation of it could have given.
But the problem could not be avoided. In 1980, in the Minerva Mills case, the question was raised whether there was indeed a majority view on the limitation of the basic structure. Justice Bhagwati said that the statement signed by nine judges had no legal effect at all and could not be regarded as the law declared by the Supreme Court. He said the so-called majority view was an unusual exercise that could not have been done by judges who had ceased to have any function after delivering their judgments and who had no time to read the judgments. However Justice Bhagwati relieved himself from deciding what he called "a troublesome question" by saying that Indira Gandhi's case had accepted the majority view that Parliament's power of amendment was limited. This was not correct as that case was decided on the assumption that it was not necessary to challenge the majority view.
So a single judge's opinion — Justice Khanna's of a limitation of the basic structure on Parliament's power — has passed off as the law. But Justice Khanna was responsible for another vital dimension of the basic structure two years after the case was decided. In the Kesavananda case, he did not say that fundamental rights were part of the basic structure of the Constitution, although six other judges said that and the case was entirely about the validity of amending fundamental rights by the challenged constitutional amendments. Three of Justice Khanna's brother judges in the Kesavananda case were clearly of the opinion that Justice Khanna had not held that fundamental rights were part of the basic structure in the Kesavananda Bharati case.
But in Indira Gandhi's election case two years later, Justice Khanna "clarified" his judgment in the Kesavananda case. He now said that he had given clear indications in his judgment that fundamental rights were part of the basic structure. By so clarifying his judgment, Justice Khanna did not realise that this clarification rendered his judgment in the Kesavananda case hopelessly self-contradictory, as he had held unconditionally valid two constitutional amendments that nullified vital fundamental rights. With that dubious exercise, Justice Khanna's "clarification" is now a vital part of the basic structure. Fundamental rights are now immune to an amendment if it violates the basic structure of the Constitution.
In the latest judgment, delivered on January 11, 2007, by nine judges of the Court on the Ninth Schedule to the Constitution, the basic structure limitation has been stated to be "an axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its origins, the basic structure theory plays a useful part in our constitutional jurisprudence. Parliament does not and should not have an unlimited power to amend the Constitution. However, in the glorification of the basic structure theory, it is important to bear in mind its infirm roots and how predilections and prejudices of judges, chance, and accidental circumstances have played a greater part rather than any logic or conscious formulation of it.
(The writer is a former Solicitor-General of India. This article is based on his lecture, which was presided over by Lok Sabha Speaker Somnath Chatterjee, to the Supreme Court Bar Association on April 4, 2007.)
Tuesday, May 22, 2007
Saturday, April 07, 2007
‘The Constitution does not envisage judicial review as the only way to correct every wrong’
J. S. Verma, Former Chief Justice of India
Posted online: Saturday, April 07, 2007 at 0000 hrs Indian Express
The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.
The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided.
Reference to instances of judicial intervention, which have had a positive effect on the quality of governance, is apposite in this context.
A glaring instance of positive impact is that relating to environment and forests. The state obligation for protection and improvement of environment and safeguarding of forests and wildlife is a principle fundamental in governance under Article 48A; and this is also a fundamental duty of every citizen under Article 51A. A serious global threat to the environment and forests, coupled with the apathy and inertia of the executive to take prompt precautionary measures compelled judicial intervention. The orders made by the Supreme Court in TN Godavarman, AIR 1997 SC 1228 and the other related cases had the desired positive effect, which is self-evident.
I believe there is a similar positive response of the other branches to the Supreme Court decision in the Vishakha case, AIR 1997 SC 3011, which defines ‘sexual harassment’ and gives directions to curb the social evil at workplaces. The executive has taken the steps, accordingly; and there is a move to enact the needed legislation to cover the field. The decision clearly says that it would operate only till enactment of the needed legislation, which was a clear statement that the judiciary was operating in virgin territory for the enforcement of fundamental rights, and not in the occupied field.
Legislative functions
The main areas of apprehension of conflict between the judiciary and the legislature relate to the speaker’s jurisdiction under the Anti-Defection Law; administration of the secretariat of the legislatures; the proceedings in the legislatures, and privileges of the members of the Parliament and the state legislatures; judicial review of the proclamation under Article 356; and judicial review of the laws.
The Constitution gives a clear indication of the desired mutual respect and comity between the judiciary and the legislatures by the provisions in Articles 121, 122, 211, 212 and 361. These provisions restrict any discussion in the Parliament or a state legislature with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for the removal of the judge; similarly, the proceedings in Parliament or a state legislature shall not be called in question in courts on the ground of any alleged irregularity of procedure, nor any officer or member shall be subject to any court’s jurisdiction in respect of the exercise by him of those powers; and immunity from courts is provided to the president and governor for the exercise and performance of the powers and duties of his office. This is the broad feature of the area of exclusive dominance of legislative and judicial power, which must guide both branches in this debate.
Jharkhand order
The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.
It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.
‘Cash for query’ case
This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.
The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.
The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict.
Judicial review of Article 356
The Supreme Court in S.R. Bommai, AIR 1994 SC 1918, has upheld justiciability of the proclamation under Article 356. There is unanimity on the broad issue of justiciability, even though there is difference in the separate opinions on the scope and extent of permissible judicial review. In my separate opinion in that case, I have upheld only a limited judicial review confined to cases amenable to the strict objective test, calling for ‘judicial hands off’ in the remaining cases wherein even an element of subjectivity is involved in the decision to invoke Article 356. I also relied on the test of judicially manageable standards to determine the area of justiciability.
In my view, the Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose. This part of the constitutional scheme is to be remembered by all branches.
The invocation of the power under Article 356 recently in relation to Bihar and the Supreme Court decision in 2006 on its validity is a case needing specific mention. The proclamation under Article 356 and dissolution of the Bihar Assembly were challenged in the Supreme Court. The challenge was entertained and fresh elections were not interrupted. The fresh electoral verdict was clearly against the exercise of power under Article 356.
The Supreme Court delivered a divided judgment after the electoral verdict. The majority opinion, in substance, held invalid the invocation of Article 356 and fastened the blame on the Bihar Governor for his report saying that it misled the Union government. However, the governor alone was criticised and not the Union government. It further said, that in the circumstances of the case no further relief need be granted. The separate minority opinion of K.G. Balakrishnan J. (as he then was) relied on my opinion in S.R. Bommai case to differ from the majority saying that the case was not amenable to judicial intervention.
The doubts arising from the majority view are many: If the proclamation could be held invalid and the governor faulted for his report, why was the Union government spared, when it was the deciding authority not bound to act merely on the governor’s report? What useful purpose was served by entertaining the petition and not stopping fresh elections, which were bound to complicate the issue of ultimate relief if the challenge succeeded, as it did? Does this case not indicate the lack of judicially manageable standards on the basis of the larger scope of judicial intervention according to the majority view in S.R. Bommai’s case? Is there not the need to re-examine the scope of judicial review of a proclamation under Article 356 in the light of the recent experience in the Bihar case?
The facts of the Bihar case show that an element of subjectivity was involved in taking the final decision to invoke Article 356 and the strict objective test was not available. There were no judicially manageable standards to enable judicial intervention. The correction could be made politically by a fresh electoral verdict, as did happen. This would appear to be the real reason for the inability to grant any substantial relief even after upholding the allegation of misuse of power. The final outcome on this occasion, despite judicial intervention was the same, that is, correction by the political remedy of electoral verdict.
For the present it is better to leave this issue at this stage with a note of caution expecting the different branches to be more circumspect in the exercise of their respective power.
Conclusion
The scheme of separation of powers in its essence, and not with rigidity is indication of a culture of joint responsibility of all branches of governance to work together for serving the common purpose indicated in the directive principles, which are the principles fundamental in governance to guide them. Certain gaps and grey areas in the Constitution are constitutional abeyances or hedges to prevent rigid postures and to promote a spirit of co-operation with mutual respect. Healthy conventions developed in the working of the Constitution are intended to fill those gaps. This has been done to a great extent till now, and the effort needs to continue.
Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24
Posted online: Saturday, April 07, 2007 at 0000 hrs Indian Express
The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large-scale sealing operations of commercial premises in unauthorised areas of Delhi.
The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided.
Reference to instances of judicial intervention, which have had a positive effect on the quality of governance, is apposite in this context.
A glaring instance of positive impact is that relating to environment and forests. The state obligation for protection and improvement of environment and safeguarding of forests and wildlife is a principle fundamental in governance under Article 48A; and this is also a fundamental duty of every citizen under Article 51A. A serious global threat to the environment and forests, coupled with the apathy and inertia of the executive to take prompt precautionary measures compelled judicial intervention. The orders made by the Supreme Court in TN Godavarman, AIR 1997 SC 1228 and the other related cases had the desired positive effect, which is self-evident.
I believe there is a similar positive response of the other branches to the Supreme Court decision in the Vishakha case, AIR 1997 SC 3011, which defines ‘sexual harassment’ and gives directions to curb the social evil at workplaces. The executive has taken the steps, accordingly; and there is a move to enact the needed legislation to cover the field. The decision clearly says that it would operate only till enactment of the needed legislation, which was a clear statement that the judiciary was operating in virgin territory for the enforcement of fundamental rights, and not in the occupied field.
Legislative functions
The main areas of apprehension of conflict between the judiciary and the legislature relate to the speaker’s jurisdiction under the Anti-Defection Law; administration of the secretariat of the legislatures; the proceedings in the legislatures, and privileges of the members of the Parliament and the state legislatures; judicial review of the proclamation under Article 356; and judicial review of the laws.
The Constitution gives a clear indication of the desired mutual respect and comity between the judiciary and the legislatures by the provisions in Articles 121, 122, 211, 212 and 361. These provisions restrict any discussion in the Parliament or a state legislature with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for the removal of the judge; similarly, the proceedings in Parliament or a state legislature shall not be called in question in courts on the ground of any alleged irregularity of procedure, nor any officer or member shall be subject to any court’s jurisdiction in respect of the exercise by him of those powers; and immunity from courts is provided to the president and governor for the exercise and performance of the powers and duties of his office. This is the broad feature of the area of exclusive dominance of legislative and judicial power, which must guide both branches in this debate.
Jharkhand order
The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.
It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.
‘Cash for query’ case
This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.
The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.
The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict.
Judicial review of Article 356
The Supreme Court in S.R. Bommai, AIR 1994 SC 1918, has upheld justiciability of the proclamation under Article 356. There is unanimity on the broad issue of justiciability, even though there is difference in the separate opinions on the scope and extent of permissible judicial review. In my separate opinion in that case, I have upheld only a limited judicial review confined to cases amenable to the strict objective test, calling for ‘judicial hands off’ in the remaining cases wherein even an element of subjectivity is involved in the decision to invoke Article 356. I also relied on the test of judicially manageable standards to determine the area of justiciability.
In my view, the Constitution does not envisage judicial review as the only mode for the correction of every wrong, and it has left that task in the political matters, which have no judicially manageable standards, for correction by the political process that is better equipped for the purpose. This part of the constitutional scheme is to be remembered by all branches.
The invocation of the power under Article 356 recently in relation to Bihar and the Supreme Court decision in 2006 on its validity is a case needing specific mention. The proclamation under Article 356 and dissolution of the Bihar Assembly were challenged in the Supreme Court. The challenge was entertained and fresh elections were not interrupted. The fresh electoral verdict was clearly against the exercise of power under Article 356.
The Supreme Court delivered a divided judgment after the electoral verdict. The majority opinion, in substance, held invalid the invocation of Article 356 and fastened the blame on the Bihar Governor for his report saying that it misled the Union government. However, the governor alone was criticised and not the Union government. It further said, that in the circumstances of the case no further relief need be granted. The separate minority opinion of K.G. Balakrishnan J. (as he then was) relied on my opinion in S.R. Bommai case to differ from the majority saying that the case was not amenable to judicial intervention.
The doubts arising from the majority view are many: If the proclamation could be held invalid and the governor faulted for his report, why was the Union government spared, when it was the deciding authority not bound to act merely on the governor’s report? What useful purpose was served by entertaining the petition and not stopping fresh elections, which were bound to complicate the issue of ultimate relief if the challenge succeeded, as it did? Does this case not indicate the lack of judicially manageable standards on the basis of the larger scope of judicial intervention according to the majority view in S.R. Bommai’s case? Is there not the need to re-examine the scope of judicial review of a proclamation under Article 356 in the light of the recent experience in the Bihar case?
The facts of the Bihar case show that an element of subjectivity was involved in taking the final decision to invoke Article 356 and the strict objective test was not available. There were no judicially manageable standards to enable judicial intervention. The correction could be made politically by a fresh electoral verdict, as did happen. This would appear to be the real reason for the inability to grant any substantial relief even after upholding the allegation of misuse of power. The final outcome on this occasion, despite judicial intervention was the same, that is, correction by the political remedy of electoral verdict.
For the present it is better to leave this issue at this stage with a note of caution expecting the different branches to be more circumspect in the exercise of their respective power.
Conclusion
The scheme of separation of powers in its essence, and not with rigidity is indication of a culture of joint responsibility of all branches of governance to work together for serving the common purpose indicated in the directive principles, which are the principles fundamental in governance to guide them. Certain gaps and grey areas in the Constitution are constitutional abeyances or hedges to prevent rigid postures and to promote a spirit of co-operation with mutual respect. Healthy conventions developed in the working of the Constitution are intended to fill those gaps. This has been done to a great extent till now, and the effort needs to continue.
Excerpted from the Pandit Kunji Lal Dubey Memorial Lecture, 2007, at Rani Durgavati Vishwavidyalaya, Jabalpur on March 24
‘Judicial activism should be neither judicial ad hocism nor judicial tyranny’
J. S. VERMA, Former Chief Justice of India
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
Posted online: Friday, April 06, 2007 at 0000 hrs Indian Express
I see no reason for any conflict between the different limbs of governance, which are all meant to serve the common purpose of public good deriving their authority from the common source — the Constitution of India depicting the will of the political sovereign, ‘We the People of India’. Each limb has a clear role in the constitutional scheme. Hence, this topic for the talk because of the emerging current debate on the issue.
Separation of powers
In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.
This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme: State of Bihar v. Bal Mukund, AIR 2000 SC 1296.
There are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power. Many such conventions have been developed, those remaining need to be expedited to avoid any semblance of conflict.
Areas of concern
Some areas of concern giving rise to the impression of a potential for conflict between the judiciary and the other organs in the context of separation of powers need a closer look. The Lok Sabha Speaker, Somnath Chatterjee, an eminent lawyer, has voiced this concern in recent times. Many other knowledgeable persons whose views cannot be ignored share a similar impression. In an article titled ‘With due respect, Lordships’, published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research has said: “The evidence of judicial overreach is now too overwhelming to be ignored”; and he concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just”. Indeed, strong words requiring urgent circumspection by the judiciary.
There can be no quarrel with the above observation that ‘the line between appropriate judicial intervention and judicial overreach is often tricky’. For that reason, greater expertise and self restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses. Inappropriate judicial intervention results in judicial ad hocism or judicial tyranny because of inadequate expertise in dealing with the matter. Judiciary itself must provide the solution for this aberration. Continuing judicial education may be the answer! It appears, the National Judicial Academy at Bhopal has now commenced that process.
Such matters come to the judiciary in the garb of public interest litigation, which need greater scrutiny to satisfy the test of bonafides of the cause as well as of the petitioner. It is time the Supreme Court framed rules to ensure consistency in the approach of the court in all PILs giving statutory force to the several judicial orders made in this behalf. The high courts should follow the same practice by amending their rules to prevent ad hocism and inconsistency. A decade ago, an exercise to amend the Supreme Court Rules was made for this purpose and a draft was duly prepared during my tenure. I am not aware of the further steps that remained to be taken for its implementation. That draft with modification, if necessary in the light of future experience, needs to be resurrected.
A related aspect pertains to deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.
Judicial activism
Judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a ‘justiciable cause of action’ and should not suffer from ‘a lack of judicially discoverable and manageable standards for resolving it’. This is a pre-requisite for judicial intervention. Otherwise, the policy of ‘judicial hands-off’ should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
The power of the superior judiciary to issue ‘mandamus’ or a suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy in the case of such institutional failure. However, there is a clear distinction between commanding performance by the concerned authority and the judiciary taking over that function itself. The former, and not the latter, is legitimate judicial intervention. The judiciary to retain its credibility must not obliterate this fine distinction.
The principles of general law must govern the exercise of judicial power even under articles 32 and 226 of the Constitution because they are the constitutional remedies for the enforcement of constitutional and other legal rights. For this reason, a fair insight into the general law is a part of the requisite equipment for proper exercise of that power. The principles regulating the exercise of the discretionary power under the Specific Relief Act and the circumstances in which the court would decline relief must be borne in mind. It is settled that the court would not issue an infructuous writ or make an order incapable of enforcement by it, or for which there are no judicially manageable standards. Adhering to these basic norms to avoid the pitfalls can prevent legitimate criticism of some judicial interventions.
A classic instance of accepted legitimate judicial intervention in a situation of this kind is the well-known Hawala case, AIR 1998 SC 889, which has withstood the test of times. In that case the Supreme Court developed the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years, which was a clear violation of at least article 14. However, the court rejected the repeated plea for taking over the investigation and having it done by a new body under its supervision, instead of by the CBI. Acceptance of that plea would have been an inappropriate judicial intervention. In order to avoid any possible misuse of the judicial process by any vested interest, the court appointed a senior advocate as amicus curiae denuding the original petitioners of the status of dominus litus to control the proceedings. This practice has come to be followed in similar matters.
The Hawala case had a larger impact on the polity. It reinforced the need for probity in public life and of accountability of public men; and affirming people’s fundamental right to corruption-free governance it evolved a public law remedy for the enforcement of that right with accountability of public men. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function, and stressing the need for similar improvement of the entire police force and other law enforcement agencies. However, the ultimate performance will depend on the quality of the men who work the system.
Appropriate judicial intervention or legitimate judicial activism is that which is founded on an established or evolved juristic principle having precedent value and performed within judicially manageable standards. It should only compel performance of duty by the designated authority in case of its inaction or failure, while a takeover by the judiciary of the function allocated to another branch is inappropriate. In a complex matter combining several functions, and having a core legal issue that is separable and amenable to judicial review, the judiciary must entertain only the legitimate part leaving the rest for the consequential action by the concerned branch. The famous US Supreme Court decision of Marshall C.J. in Marbury v. Madison, (1803) 5 US 137 asserting the power of judicial review without risking non-compliance of its order, is an example of judicial statesmanship.
Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should be neither judicial ad hocism nor judicial tyranny. In my view, these are the broad parameters for testing the propriety and legitimacy of judicial interventions.
Some significant specific instances of judicial interventions that have invited criticism, and a few in which the judiciary was deliberately misused by some vested interest, may now be referred. Objectivity being a basic trait expected of the judiciary, it must govern the needed introspection, occasioned by the criticism leveled against some of its recent interventions on the ground of erosion of the constituent principle of separation of powers.
Executive functions
Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.
Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.
Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi.
Tuesday, April 03, 2007
Ban on sex determination needed: Centre
[ 27 Mar, 2007 0309hrs ISTTIMES NEWS NETWORK ]
MUMBAI: The Union of India told the Bombay high court (HC) that there was no question of lifting the ban on pre-natal sex determination tests. The government was responding to a public interest litigation filed by a Mumbai couple seeking relaxation of the ban. In an affidavit, Sushma Rath, under secretary, Union ministry of health and family welfare, said that sections of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 2002, that enforced the ban, was in accordance with the law. The Act, the affidavit said, was enacted by Parliament to check the rising incidents of female foeticide. "The government of India, anticipating a catastrophe in the form of severe imbalance in the male-female ratio, has passed the Act," said the affidavit, pointing out that the sex ratio in the country of the population in the 0 to 6 age group was adversely against the girl child. The infant child ratio has come down from 945 (for every 1,000 male children) as per the 1991 census to 927 in 2001. The problem was especially bad in affluent states like Punjab (798), Haryana (819), Chandigarh (845), Delhi (868), Gujarat (883) and Himachal Pradesh (896). The couple, who have two girls and now want a son, have questioned the constitutional validity of the ban. They have sought a relaxation of the ban for couples who already have one child. The affidavit, however, said that the ban was a policy decision of the government. “Balancing the sex ratio in the society is more important than balancing the sex ratio within the family," the affidavit affirmed. "Any imbalance in the sex ratio of the society will adversely affect the overall well-being of women in the society." The PIL is scheduled to come for hearing later this week.
MUMBAI: The Union of India told the Bombay high court (HC) that there was no question of lifting the ban on pre-natal sex determination tests. The government was responding to a public interest litigation filed by a Mumbai couple seeking relaxation of the ban. In an affidavit, Sushma Rath, under secretary, Union ministry of health and family welfare, said that sections of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 2002, that enforced the ban, was in accordance with the law. The Act, the affidavit said, was enacted by Parliament to check the rising incidents of female foeticide. "The government of India, anticipating a catastrophe in the form of severe imbalance in the male-female ratio, has passed the Act," said the affidavit, pointing out that the sex ratio in the country of the population in the 0 to 6 age group was adversely against the girl child. The infant child ratio has come down from 945 (for every 1,000 male children) as per the 1991 census to 927 in 2001. The problem was especially bad in affluent states like Punjab (798), Haryana (819), Chandigarh (845), Delhi (868), Gujarat (883) and Himachal Pradesh (896). The couple, who have two girls and now want a son, have questioned the constitutional validity of the ban. They have sought a relaxation of the ban for couples who already have one child. The affidavit, however, said that the ban was a policy decision of the government. “Balancing the sex ratio in the society is more important than balancing the sex ratio within the family," the affidavit affirmed. "Any imbalance in the sex ratio of the society will adversely affect the overall well-being of women in the society." The PIL is scheduled to come for hearing later this week.
Judicial activism and democracy
By Anil Divan ,The Hindu April 2,2007
The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.
LIVELY CRITICISM of judicial activism encroaching on the powers of the legislature and the executive has been voiced by many including Lok Sabha Speaker Somnath Chatterjee. Such controversies are the lifeblood of democracy and must be welcomed. On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. Dravida Munnetra Kazhagam members formed a human wall to protect him. On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen.
The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. Some glimpses from the past and a peep into the future may be rewarding.
In 1608, England was ruled by the Stuart King James I who claimed absolute power. On November 13, 1608, James entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: "This means that I shall be under law which is treason to affirm." Coke replied: "Bracton says that the King should not be under man but should be under God and law." At that time the judges were removable by the King and had no security of tenure. Chief Justice Coke's reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.
In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. John Marshall was Secretary of State in the administration of President John Adams who in the last days of his Presidency appointed as judges and magistrates more than 50 people belonging to his party. Meanwhile, Marshall was appointed Chief Justice and overlooked delivering some commissions. The incoming President Thomas Jefferson ordered his Secretary of State James Madison not to deliver these commissions. Marbury, an appointee, moved the Supreme Court for a direction against Secretary of State Madison praying that the commission be delivered to him. Chief Justice Marshall knew that if a direction was given it was unlikely to be obeyed by President Jefferson. By an act of judicial statesmanship Marshall ruled that Section 13 of the Judiciary Act under which Marbury had petitioned the court was unconstitutional and invalid and therefore the court had no original jurisdiction to grant relief. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress.
Chief Justice Earl Warren of the U.S. was one of the great activist judges who has profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants. Warren and the judges supporting him came in conflict with their colleagues who championed judicial restraint. Bernard Schwartz recounts a public display of acrimony between Warren and Frankfurter, the latter a champion of judicial restraint. In Stewart v United States, a bare majority reversed a murder conviction because of improper questioning by the prosecution. After the majority opinion was read, Frankfurter in open court characterised it as "an indefensible example of judicial nit-picking" and "excessively finicky appellate review." Chief Justice Warren, visibly angered, said: "As I understand it the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this Court." This exchange was front-page copy for the national press.
President Eisenhower a conservative Republican, was distressed by the liberal views of his appointee Chief Justice Warren. When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."
High-water mark
What was the one case that was the high-water mark of judicial activism in India? No doubt it was the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case). For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. The judgment was severely and passionately criticised by the executive and many eminent lawyers. The immediate response of the executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and Grover) while the fourth Judge Justice A.N. Ray who had decided all major cases in favour of the Government was appointed Chief Justice. However, the critics were soon silenced. The excesses of the Internal Emergency of 1975 completely legitimised this judgment and one of its severest critics the great jurist H.M. Seervai changed his views.
Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle "Be you ever so high the law is above you."
During the hearing there were reports that Prime Minister P.V. Narasimha Rao was interfering with the investigation and the court passed an interim order on March 1, 1996. It directed "that the CBI would not take any instructions from, report to or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigation into any accusation. This direction applied even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." In substance Prime Minister Rao was forbidden from exercising control over the CBI in relation to that case. It was a bold and courageous order and carried judicial activism to hitherto unscaled heights. The fallout of the case was resignations following initiation of prosecutions against high profile political personalities including three Cabinet Ministers, two Governors, and the Leader of the Opposition. In the next general election the ruling Congress lost power.
The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen's child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
The plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colourful and fragrant flowers. Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.
(The writer is a Senior Advocate, Supreme Court .)
The great contribution of judicial activism in India has been to provide a safety valve and a hope that justice is not beyond reach.
LIVELY CRITICISM of judicial activism encroaching on the powers of the legislature and the executive has been voiced by many including Lok Sabha Speaker Somnath Chatterjee. Such controversies are the lifeblood of democracy and must be welcomed. On March 12, 2007, marshals were summoned in the Lok Sabha as Communist Party of India (Marxist) members stormed the well, menacingly advancing towards Shipping Minister T.R. Baalu. Dravida Munnetra Kazhagam members formed a human wall to protect him. On March 19, 2007, another scuffle took place in the Rajya Sabha when Bharatiya Janata Party member S.S. Ahluwalia and other Opposition members rushed threateningly towards Finance Minister P. Chidambaram who was protected by a cordon of Congressmen.
The Indian citizen's perception of the political class is overwhelmingly coloured by the above images. It is in this context that judicial activism has flourished in India and has acquired enormous legitimacy with the Indian public. Some glimpses from the past and a peep into the future may be rewarding.
In 1608, England was ruled by the Stuart King James I who claimed absolute power. On November 13, 1608, James entered the royal courts and claimed that he could take any case he chose, remove it from the courts, and decide it in his royal person. Chief Justice Coke answered that he could not do so but the case ought to be determined and adjudged in a court of justice according to the law and custom of England. The King was greatly offended and replied: "This means that I shall be under law which is treason to affirm." Coke replied: "Bracton says that the King should not be under man but should be under God and law." At that time the judges were removable by the King and had no security of tenure. Chief Justice Coke's reply was an affirmation of the judicial power while upholding the rule of law against arbitrary decisions of the sovereign. This was judicial activism at its finest.
In 1801, Chief Justice John Marshall highlighted and reaffirmed the power of the American Supreme Court to invalidate Congressional statutes in the celebrated case of Marbury v. Madison. John Marshall was Secretary of State in the administration of President John Adams who in the last days of his Presidency appointed as judges and magistrates more than 50 people belonging to his party. Meanwhile, Marshall was appointed Chief Justice and overlooked delivering some commissions. The incoming President Thomas Jefferson ordered his Secretary of State James Madison not to deliver these commissions. Marbury, an appointee, moved the Supreme Court for a direction against Secretary of State Madison praying that the commission be delivered to him. Chief Justice Marshall knew that if a direction was given it was unlikely to be obeyed by President Jefferson. By an act of judicial statesmanship Marshall ruled that Section 13 of the Judiciary Act under which Marbury had petitioned the court was unconstitutional and invalid and therefore the court had no original jurisdiction to grant relief. He avoided a direct conflict with the administration while highlighting and reaffirming the judicial review power to invalidate an Act of Congress.
Chief Justice Earl Warren of the U.S. was one of the great activist judges who has profoundly influenced the Indian Supreme Court. By his decisions he legitimised affirmative action by the courts and removed racial discrimination in schools by desegregation, reapportioned obsolete electoral districts, and enhanced the rights of poor accused and defendants. Warren and the judges supporting him came in conflict with their colleagues who championed judicial restraint. Bernard Schwartz recounts a public display of acrimony between Warren and Frankfurter, the latter a champion of judicial restraint. In Stewart v United States, a bare majority reversed a murder conviction because of improper questioning by the prosecution. After the majority opinion was read, Frankfurter in open court characterised it as "an indefensible example of judicial nit-picking" and "excessively finicky appellate review." Chief Justice Warren, visibly angered, said: "As I understand it the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this Court." This exchange was front-page copy for the national press.
President Eisenhower a conservative Republican, was distressed by the liberal views of his appointee Chief Justice Warren. When Eisenhower was asked what his biggest mistake was, he angrily replied "the appointment of ... Earl Warren."
High-water mark
What was the one case that was the high-water mark of judicial activism in India? No doubt it was the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case). For the first time a court held that a constitutional amendment duly passed by the legislature was invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous. The judgment was severely and passionately criticised by the executive and many eminent lawyers. The immediate response of the executive was the supercession of three senior-most judges (Justices Shelat, Hegde, and Grover) while the fourth Judge Justice A.N. Ray who had decided all major cases in favour of the Government was appointed Chief Justice. However, the critics were soon silenced. The excesses of the Internal Emergency of 1975 completely legitimised this judgment and one of its severest critics the great jurist H.M. Seervai changed his views.
Judicial activism earned a human face in India by liberalising access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justices V.R. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers. With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the `hawala' route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle "Be you ever so high the law is above you."
During the hearing there were reports that Prime Minister P.V. Narasimha Rao was interfering with the investigation and the court passed an interim order on March 1, 1996. It directed "that the CBI would not take any instructions from, report to or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigation into any accusation. This direction applied even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." In substance Prime Minister Rao was forbidden from exercising control over the CBI in relation to that case. It was a bold and courageous order and carried judicial activism to hitherto unscaled heights. The fallout of the case was resignations following initiation of prosecutions against high profile political personalities including three Cabinet Ministers, two Governors, and the Leader of the Opposition. In the next general election the ruling Congress lost power.
The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention. If a citizen's child is attacked by a stray dog or cattle roam the streets or hospitals suffer from monkey menace and nothing is done, should not the court intervene?
The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which have overtaken the executive and the legislature. There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.
The plants slowly nurtured by judicial craftsmanship have grown into sturdy trees and have blossomed with colourful and fragrant flowers. Judicial activism has added much needed oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.
(The writer is a Senior Advocate, Supreme Court .)
Wednesday, February 28, 2007
Minister: Juvenile courts to be set up in all districts
Minister: Juvenile courts to be set up in all districtsHT CorrespondentJabalpur, February 25, 2007
WOMAN AND Child Development and Social Justice Minister Kusum Mahdele said on Saturday that the government would soon open juvenile courts in each district for speedy disposal of cases related to children. She said the number of juvenile courts in the State is insufficient at present and more courts are needed for disposal of cases.
The minister said that Bal Bhawan, akin to Bhopal, would be opened in Jabalpur in April. She said it is planned to open Bal Bhawan at the divisional headquarters, where children would receive training in sports, music, arts and would also be taught science and other subjects.Mahdele told the media persons that the beneficiaries under the social security and old age pension schemes would get the amount by the fifth of every month. He said her department had issued instructions in this regard to the authorities.
She disclosed that the government was contemplating a plan to reserve 50 per cent seats of supervisor cadre in Anganwadi for women.
To a query about promoting Anganwadi workers on the post of supervisor, she said the government would fill up 50 per cent posts of supervisor through Anganwadi workers for which they will have to qualify the test conducted by the Professional Examination Board.
Mahdele announced that 75 per cent amount for construction of hostel for working women and the students in the campus of Government Mankunwar Bai College here would be provided by the government.
WOMAN AND Child Development and Social Justice Minister Kusum Mahdele said on Saturday that the government would soon open juvenile courts in each district for speedy disposal of cases related to children. She said the number of juvenile courts in the State is insufficient at present and more courts are needed for disposal of cases.
The minister said that Bal Bhawan, akin to Bhopal, would be opened in Jabalpur in April. She said it is planned to open Bal Bhawan at the divisional headquarters, where children would receive training in sports, music, arts and would also be taught science and other subjects.Mahdele told the media persons that the beneficiaries under the social security and old age pension schemes would get the amount by the fifth of every month. He said her department had issued instructions in this regard to the authorities.
She disclosed that the government was contemplating a plan to reserve 50 per cent seats of supervisor cadre in Anganwadi for women.
To a query about promoting Anganwadi workers on the post of supervisor, she said the government would fill up 50 per cent posts of supervisor through Anganwadi workers for which they will have to qualify the test conducted by the Professional Examination Board.
Mahdele announced that 75 per cent amount for construction of hostel for working women and the students in the campus of Government Mankunwar Bai College here would be provided by the government.
Monday, February 05, 2007
India’s judiciary seeks to burnish its reputation with some belated guilty verdicts
By Parwini Zora and Kranti Kumara – World Socialist Web Site
India’s State High Courts have recently delivered guilty verdicts in a number of high profile cases arising from brazen violent crimes committed over a decade ago by wealthy and politically well-connected individuals. Those convicted include a cabinet minister in India’s Congress Party-led United Progressive Alliance (UPA) government, a sitting Bharatiya Janata Party (BJP) MP, the son of a senior police commissioner, and the son of a wealthy Congress Party leader.
The guilty verdicts have elicited a torrent of favorable media commentary, with the press congratulating itself for stoking and maintaining public interest in these cases and lauding the courts for having the integrity and courage to convict the rich and powerful. Kushwant Singh, one of the country’s best known media commentators, hailed the recent convictions for “beginning . . . the process of restoration of faith in our judicial system.”
“Convictions of Shibu Soren, Navjot Sidhu, Santosh Singh, Manu Sharma, Sharda Jain, Sanjay Dutt and others showed that no matter how important or celebrated a person, he or she is not above the law,” Singh wrote. “We have much to thank Justice R.S. Sodhi for. Credit is also due to our media; to TV channels for reporting the public outrage at the miscarriage of justice and the press for its sustained pressure to bring criminals to book. I hope the process will continue.”
That such comments can be made attests to how widespread is the public perception that the justice system is subject to financial and political manipulation and shot through with class bias. They also indicate that India’s elite—which has increasingly used the courts to suppress opposition to its neo-liberal socio-economic reform program and to strengthen proprietary and managerial rights—fears that the ability of some its own to literally get away with murder is undermining public faith in the judiciary and thereby endangering bourgeois rule.
A handful of exemplary convictions
In the first of a series of such rulings, the Delhi High Court on October 30, 2006 reversed an acquittal by a lower court and sentenced Santosh Kumar Singh, son of a senior police commissioner, to death for the brutal 1996 rape and murder of a 22-year old female student, Priyadarshini Mattoo.
On Dec. 5, 2006 the same court sentenced Shibu Soren, the Union Coal Minister and leader of the tribal-based political party Jharkhand Mukti Morcha (JMM) and four accomplices to life imprisonment for kidnapping and murdering Soren’s associate Shashinath Jha in 1994. Soren and Jha had had a falling-out over the divvying up of a massive bribe of 50 million rupees ($1.67 million US at the 1994 exchange rate) that had been given to Soren and his cronies in the JMM by the then-ruling Congress Party for propping up the government in parliament a year earlier.
Under India’s penal code Shibu Soren will have to serve a minimum of 14 years in prison before becoming eligible for release.
In another case, the Punjab and Haryana High Court on December 24, 2006 overturned a not-guilty verdict of a lower court and pronounced Navjot Singh Sidhu, a member of the Lok Sabha belonging to the Hindu-supremacist BJP, guilty of “culpable homicide” for beating Gurnam Singh to death in 1988 in a reputed case of road-rage. Sidhu was given a 3-year prison term and fined 100,000 rupees ($2,200 US). A particularly uncouth and coarse person, Sidhu turned to politics after retiring from cricket. He also hosts a television program.
Even the paltry sentence on Sidhu has been suspended, allowing him to appeal his sentence in the Indian Supreme Court. Neither Sidhu nor Soren are losing any sleep over their sentences. While Shibu Soren did step down as a Union Minister, he still retains his Lok Sabha seat. Soren can prevent his disqualification from parliament by filing an appeal within 3 months. If Soren is unable to obtain bail pending his appeal, the Speaker of the Lok Sabha may have to make arrangements for this convicted murderer to perform his parliamentary duties from jail.
According to news reports, Soren is being treated as a VIP in prison, with the jail authorities attending to his every demand. Navjot Sidhu, on the other hand, has resigned from the Lok Sabha, but just a couple of weeks after his sentencing he was back in his role as a television host and is currently acting in a 6-part reality TV series. More importantly, the BJP has named Sidhu its candidate for the Lok Sabha by-election necessitated by his own resignation.
The convictions of Soren and Sidhu are not surprising given that the Lok Sabha has become the domicile for scores of venal thug-politicians, who brazenly traffic in political influence and rally public support by making crude populist appeals to caste, religious-communal and ethnic identities. According to one study by a non-governmental organization, over 90 members of the 543-seat Lok Sabha, including 10 members of ministerial rank in the current UPA government, currently face serious criminal charges, including rape, extortion and murder.
In another prominent case that had caused widespread public outrage, the Delhi High Court on December 20, 2006 overruled a previous lower court ruling and sentenced Manu Sharma—the son of a prominent and wealthy Congress Party politician, Vinod Sharma—to life imprisonment for murdering the model Jessica Lal in 1999. Lal, who was working as a bar hostess at a private party of Delhi socialites, was murdered by Manu Sharma for refusing him further drinks after the bar had closed. This case triggered a public uproar when Manu Sharma was acquitted in February 2006 because, according to dozens of witnesses, he had brazenly shot Jessica Lal in the head at point-blank range.
Despite the prosecution’s call for Sharma to be sentenced to death, the Delhi High Court ruled that “justice would be satisfied if we award the sentence of imprisonment for life to Siddharth Vashishtha alias Manu Sharma.”
According to press reports Vinod Sharma is seeking the services of prominent attorneys to file an appeal with the Indian Supreme Court. As a matter of principle, the World Socialist Web Site opposes the death penalty, but it is nevertheless instructive to contrast the court’s magnanimity towards Manu Sharma with its baying for the blood of Mohammed Afzal, a minor accomplice—if even that—in the 2001 attack on the Indian Parliament. (See “India: Stop the state murder of Mohammed Afzal”.)
Elite concerns over a loss of legitimacy India’s judicial system has long been notorious for the unequal treatment it accords the poor and the well-to-do—for the corruption of the police and courts, the official indifference to crimes committed against poor and lower-caste people (as for example the recent spate of disappearances in Noida) and the hostility of the police to the rights of the accused.
The flagrant inequities in the judicial system are exemplified by the fact that poor people are often kept in jail for months, and frequently years, awaiting trial for minor offenses, while the rich and powerful are able to obtain “anticipatory bail”—a ruling granting them bail should they be charged—thus allowing them to avoid the indignity of being arrested and having to wait in jail for a bail hearing to secure their release. (See: “Fifty-four years in jail without trial: the plight of prison inmates in India”.)
Aware that the judicial system is little respected, if not held in outright disrepute, by much of the population, and also concerned about allaying investors fears that they will be hard pressed to enforce their contracts due to the chronic backlog in the adjudication of court cases, prominent figures in the government and judiciary have called repeatedly in recent years for action to “clean-up” and otherwise improve India’s legal system.
In a speech in London in June 12, 2003, the attorney general of India at the time delivered a damning indictment of India’s criminal justice system: “The criminal justice system is on the verge of collapse. Because justice is not dispensed speedily, people have come to believe that there is no such thing as justice in courts.
“This perception has caused many a potential litigant who has been wronged to settle out of court on terms which are unfair to him or to secure justice by taking the law into his own hands or by recourse to a parallel mafia-dominated system of ‘justice’ that has sprung up in metropolitan centers such as Mumbai.
“The gravity of this development cannot be underestimated. Justice delayed will not only be justice denied, it will be the Rule of Law destroyed.”
The calls from within the elite for measures against judicial corruption and inefficiency, for an effort to revive public confidence in India’s legal system, must also be see within the context of the pivotal role that the courts are playing in the bourgeoisie’s drive to make India a cheap-labor producer for the world capitalist market.
India’s courts, and especially its apex court, the Supreme Court, have moved in recent years to criminalize working-class and popular dissent with a spate of anti-democratic rulings.
To name but two of the most significant, in the summer of 2003 India’s Supreme Court sided with the Tamilnadu state government when it dismissed over 200,000 public employees who had gone on strike demanding better pay and benefits. The court found that public sector workers have no inherent right to strike and even suggested that the state would be within its constitutional limits to outlaw strikes by all workers. In an unprecedented February 2006 ruling, the Supreme Court banned all public discussion on whether the toxic-laden, de-commissioned French Aircraft carrier “Le Clemenceau” should be permitted to be dismantled at an Indian ship-breaking yard.
Under conditions where India’s government has often been forced to postpone enactment of neo-liberal reforms, especially in regards to labor laws, due to popular pressure, the courts through various rulings have moved to expand the powers and prerogatives of employers to discipline and dismiss workers. Recently, for example, the Supreme Court ruled that apprentices or trainees don’t have any rights during their training period, even if that period is prolonged, and can be fired without penalty even if they routinely perform work that a regular employee performs.
The recent exemplary rulings in a handful of high-profile criminal cases and the push from within the elite for reform of India’s judiciary will not—the claims of the press notwithstanding—make India’s legal system more just and democratic. Rather they are aimed at bolstering the legitimacy and efficiency of the legal system so as to make it a more effective instrument of class oppression.
Indian Prime Minister Manmohan Singh last year tied his call for the speedier dispensing of justice with the need to bring the courts more in line with his and previous governments’ pro-big business “economic reforms.”
One further point should be made: while the press has been lauding the courts for the recent convictions of a number of brazen upper-class criminals, those responsible for far greater and more politically-significant crimes—crimes which led to the deaths of thousands and in which leading politicians and police authorities were culpable—the 1984 anti-Sikh riots in Delhi, the 1992 razing of the Babri Masjid mosque in Ayodhya and the 2002 anti-Muslim pogrom in Gujarat, remain free. And about this gross injustice the corporate media remains almost completely silent.
- World Socialist Web Site -
http://www.asiantribune.com/index.php?q=node/4402
India’s State High Courts have recently delivered guilty verdicts in a number of high profile cases arising from brazen violent crimes committed over a decade ago by wealthy and politically well-connected individuals. Those convicted include a cabinet minister in India’s Congress Party-led United Progressive Alliance (UPA) government, a sitting Bharatiya Janata Party (BJP) MP, the son of a senior police commissioner, and the son of a wealthy Congress Party leader.
The guilty verdicts have elicited a torrent of favorable media commentary, with the press congratulating itself for stoking and maintaining public interest in these cases and lauding the courts for having the integrity and courage to convict the rich and powerful. Kushwant Singh, one of the country’s best known media commentators, hailed the recent convictions for “beginning . . . the process of restoration of faith in our judicial system.”
“Convictions of Shibu Soren, Navjot Sidhu, Santosh Singh, Manu Sharma, Sharda Jain, Sanjay Dutt and others showed that no matter how important or celebrated a person, he or she is not above the law,” Singh wrote. “We have much to thank Justice R.S. Sodhi for. Credit is also due to our media; to TV channels for reporting the public outrage at the miscarriage of justice and the press for its sustained pressure to bring criminals to book. I hope the process will continue.”
That such comments can be made attests to how widespread is the public perception that the justice system is subject to financial and political manipulation and shot through with class bias. They also indicate that India’s elite—which has increasingly used the courts to suppress opposition to its neo-liberal socio-economic reform program and to strengthen proprietary and managerial rights—fears that the ability of some its own to literally get away with murder is undermining public faith in the judiciary and thereby endangering bourgeois rule.
A handful of exemplary convictions
In the first of a series of such rulings, the Delhi High Court on October 30, 2006 reversed an acquittal by a lower court and sentenced Santosh Kumar Singh, son of a senior police commissioner, to death for the brutal 1996 rape and murder of a 22-year old female student, Priyadarshini Mattoo.
On Dec. 5, 2006 the same court sentenced Shibu Soren, the Union Coal Minister and leader of the tribal-based political party Jharkhand Mukti Morcha (JMM) and four accomplices to life imprisonment for kidnapping and murdering Soren’s associate Shashinath Jha in 1994. Soren and Jha had had a falling-out over the divvying up of a massive bribe of 50 million rupees ($1.67 million US at the 1994 exchange rate) that had been given to Soren and his cronies in the JMM by the then-ruling Congress Party for propping up the government in parliament a year earlier.
Under India’s penal code Shibu Soren will have to serve a minimum of 14 years in prison before becoming eligible for release.
In another case, the Punjab and Haryana High Court on December 24, 2006 overturned a not-guilty verdict of a lower court and pronounced Navjot Singh Sidhu, a member of the Lok Sabha belonging to the Hindu-supremacist BJP, guilty of “culpable homicide” for beating Gurnam Singh to death in 1988 in a reputed case of road-rage. Sidhu was given a 3-year prison term and fined 100,000 rupees ($2,200 US). A particularly uncouth and coarse person, Sidhu turned to politics after retiring from cricket. He also hosts a television program.
Even the paltry sentence on Sidhu has been suspended, allowing him to appeal his sentence in the Indian Supreme Court. Neither Sidhu nor Soren are losing any sleep over their sentences. While Shibu Soren did step down as a Union Minister, he still retains his Lok Sabha seat. Soren can prevent his disqualification from parliament by filing an appeal within 3 months. If Soren is unable to obtain bail pending his appeal, the Speaker of the Lok Sabha may have to make arrangements for this convicted murderer to perform his parliamentary duties from jail.
According to news reports, Soren is being treated as a VIP in prison, with the jail authorities attending to his every demand. Navjot Sidhu, on the other hand, has resigned from the Lok Sabha, but just a couple of weeks after his sentencing he was back in his role as a television host and is currently acting in a 6-part reality TV series. More importantly, the BJP has named Sidhu its candidate for the Lok Sabha by-election necessitated by his own resignation.
The convictions of Soren and Sidhu are not surprising given that the Lok Sabha has become the domicile for scores of venal thug-politicians, who brazenly traffic in political influence and rally public support by making crude populist appeals to caste, religious-communal and ethnic identities. According to one study by a non-governmental organization, over 90 members of the 543-seat Lok Sabha, including 10 members of ministerial rank in the current UPA government, currently face serious criminal charges, including rape, extortion and murder.
In another prominent case that had caused widespread public outrage, the Delhi High Court on December 20, 2006 overruled a previous lower court ruling and sentenced Manu Sharma—the son of a prominent and wealthy Congress Party politician, Vinod Sharma—to life imprisonment for murdering the model Jessica Lal in 1999. Lal, who was working as a bar hostess at a private party of Delhi socialites, was murdered by Manu Sharma for refusing him further drinks after the bar had closed. This case triggered a public uproar when Manu Sharma was acquitted in February 2006 because, according to dozens of witnesses, he had brazenly shot Jessica Lal in the head at point-blank range.
Despite the prosecution’s call for Sharma to be sentenced to death, the Delhi High Court ruled that “justice would be satisfied if we award the sentence of imprisonment for life to Siddharth Vashishtha alias Manu Sharma.”
According to press reports Vinod Sharma is seeking the services of prominent attorneys to file an appeal with the Indian Supreme Court. As a matter of principle, the World Socialist Web Site opposes the death penalty, but it is nevertheless instructive to contrast the court’s magnanimity towards Manu Sharma with its baying for the blood of Mohammed Afzal, a minor accomplice—if even that—in the 2001 attack on the Indian Parliament. (See “India: Stop the state murder of Mohammed Afzal”.)
Elite concerns over a loss of legitimacy India’s judicial system has long been notorious for the unequal treatment it accords the poor and the well-to-do—for the corruption of the police and courts, the official indifference to crimes committed against poor and lower-caste people (as for example the recent spate of disappearances in Noida) and the hostility of the police to the rights of the accused.
The flagrant inequities in the judicial system are exemplified by the fact that poor people are often kept in jail for months, and frequently years, awaiting trial for minor offenses, while the rich and powerful are able to obtain “anticipatory bail”—a ruling granting them bail should they be charged—thus allowing them to avoid the indignity of being arrested and having to wait in jail for a bail hearing to secure their release. (See: “Fifty-four years in jail without trial: the plight of prison inmates in India”.)
Aware that the judicial system is little respected, if not held in outright disrepute, by much of the population, and also concerned about allaying investors fears that they will be hard pressed to enforce their contracts due to the chronic backlog in the adjudication of court cases, prominent figures in the government and judiciary have called repeatedly in recent years for action to “clean-up” and otherwise improve India’s legal system.
In a speech in London in June 12, 2003, the attorney general of India at the time delivered a damning indictment of India’s criminal justice system: “The criminal justice system is on the verge of collapse. Because justice is not dispensed speedily, people have come to believe that there is no such thing as justice in courts.
“This perception has caused many a potential litigant who has been wronged to settle out of court on terms which are unfair to him or to secure justice by taking the law into his own hands or by recourse to a parallel mafia-dominated system of ‘justice’ that has sprung up in metropolitan centers such as Mumbai.
“The gravity of this development cannot be underestimated. Justice delayed will not only be justice denied, it will be the Rule of Law destroyed.”
The calls from within the elite for measures against judicial corruption and inefficiency, for an effort to revive public confidence in India’s legal system, must also be see within the context of the pivotal role that the courts are playing in the bourgeoisie’s drive to make India a cheap-labor producer for the world capitalist market.
India’s courts, and especially its apex court, the Supreme Court, have moved in recent years to criminalize working-class and popular dissent with a spate of anti-democratic rulings.
To name but two of the most significant, in the summer of 2003 India’s Supreme Court sided with the Tamilnadu state government when it dismissed over 200,000 public employees who had gone on strike demanding better pay and benefits. The court found that public sector workers have no inherent right to strike and even suggested that the state would be within its constitutional limits to outlaw strikes by all workers. In an unprecedented February 2006 ruling, the Supreme Court banned all public discussion on whether the toxic-laden, de-commissioned French Aircraft carrier “Le Clemenceau” should be permitted to be dismantled at an Indian ship-breaking yard.
Under conditions where India’s government has often been forced to postpone enactment of neo-liberal reforms, especially in regards to labor laws, due to popular pressure, the courts through various rulings have moved to expand the powers and prerogatives of employers to discipline and dismiss workers. Recently, for example, the Supreme Court ruled that apprentices or trainees don’t have any rights during their training period, even if that period is prolonged, and can be fired without penalty even if they routinely perform work that a regular employee performs.
The recent exemplary rulings in a handful of high-profile criminal cases and the push from within the elite for reform of India’s judiciary will not—the claims of the press notwithstanding—make India’s legal system more just and democratic. Rather they are aimed at bolstering the legitimacy and efficiency of the legal system so as to make it a more effective instrument of class oppression.
Indian Prime Minister Manmohan Singh last year tied his call for the speedier dispensing of justice with the need to bring the courts more in line with his and previous governments’ pro-big business “economic reforms.”
One further point should be made: while the press has been lauding the courts for the recent convictions of a number of brazen upper-class criminals, those responsible for far greater and more politically-significant crimes—crimes which led to the deaths of thousands and in which leading politicians and police authorities were culpable—the 1984 anti-Sikh riots in Delhi, the 1992 razing of the Babri Masjid mosque in Ayodhya and the 2002 anti-Muslim pogrom in Gujarat, remain free. And about this gross injustice the corporate media remains almost completely silent.
- World Socialist Web Site -
http://www.asiantribune.com/index.php?q=node/4402
India Sees Thousands Of Children Missing Thanks To Neglect In Police
February 05, 2007 21:44 PM
NEW DELHI, Feb 5 (Bernama) -- When India's senior police officers check the crime charts, they will frown upon increase in thefts, murders and even chain snatching incidents but seldom upon the number of missing persons, Xinhua reported Monday.It was no wonder that the public and media were so shocked when the serial killing of about 40 children was revealed early January in Noida, a satellite town of Indian capital New Delhi known for its large middle-class population.According to the police investigation, two prime suspects, a businessman and his servant, seduced the children from an urban village near their house, sexually abused and killed them. They dismembered the bodies and buried them in a dried drainage behind the house.People were asking how come the local police had been not aware of the crime when worried parents in the village kept filing complaints about their missing children in the past two years.The case seems lead to the fact that missing cases are so low on policing priority.A National Human Rights Commission report said that 45,000 children go missing every year but the Women and Child Development Ministry was quoted as saying it could be thrice as much.Some non-governmental organizations (NGOs) and social workers said that official estimates are based only on police complaints and the actual numbers may be close to 1 million.In Delhi there are 21,561 people reported missing including nearly 16,000 children. Provided that the city has other 50,000 homeless it is a frightening scenario.But India has no official website or data base for the missing people. The only public source of information seems to be Doordarshan, India's public TV channel, or personally placed ads in media.There is very little emphasis on locating missing children by the police or even the society, said Kiran Bedi, director-general of the Delhi police in charge of training.More attention will be paid on finding a stolen car than finding a human being because the former involves a pressure group and the insurance company, said Sagar Hudda, Joint Commissioner of Delhi Police.And missing children from poor and powerless families will face the most neglect from the police.The victims in the serial killing in Noida all came from poor families of migrant workers.In the same city it took the police only five days to save the three-year-old son of the chief executive of Adobe India who was kidnapped for ransom in November last year.The police are most reluctant to register First Information Reports (FIR) for kidnapping till a ransom demand is made. But this rarely happens in the case of poor children who may have been lifted for begging or prostitution or other violation like what happened in the Noida killing.India has adopted several laws on protection of children including the freshly passed Child Marriage Act, Domestic Violence Act and child labour protection Act but so far no law on missing children.To cope with the problem, the Women and Child Development Ministry is considering founding a national commission for children which will exclusively cater to complaints related to children with similar legal power with the National Commission for Women
http://www.bernama.com.my/bernama/v3/news.php?id=245230
NEW DELHI, Feb 5 (Bernama) -- When India's senior police officers check the crime charts, they will frown upon increase in thefts, murders and even chain snatching incidents but seldom upon the number of missing persons, Xinhua reported Monday.It was no wonder that the public and media were so shocked when the serial killing of about 40 children was revealed early January in Noida, a satellite town of Indian capital New Delhi known for its large middle-class population.According to the police investigation, two prime suspects, a businessman and his servant, seduced the children from an urban village near their house, sexually abused and killed them. They dismembered the bodies and buried them in a dried drainage behind the house.People were asking how come the local police had been not aware of the crime when worried parents in the village kept filing complaints about their missing children in the past two years.The case seems lead to the fact that missing cases are so low on policing priority.A National Human Rights Commission report said that 45,000 children go missing every year but the Women and Child Development Ministry was quoted as saying it could be thrice as much.Some non-governmental organizations (NGOs) and social workers said that official estimates are based only on police complaints and the actual numbers may be close to 1 million.In Delhi there are 21,561 people reported missing including nearly 16,000 children. Provided that the city has other 50,000 homeless it is a frightening scenario.But India has no official website or data base for the missing people. The only public source of information seems to be Doordarshan, India's public TV channel, or personally placed ads in media.There is very little emphasis on locating missing children by the police or even the society, said Kiran Bedi, director-general of the Delhi police in charge of training.More attention will be paid on finding a stolen car than finding a human being because the former involves a pressure group and the insurance company, said Sagar Hudda, Joint Commissioner of Delhi Police.And missing children from poor and powerless families will face the most neglect from the police.The victims in the serial killing in Noida all came from poor families of migrant workers.In the same city it took the police only five days to save the three-year-old son of the chief executive of Adobe India who was kidnapped for ransom in November last year.The police are most reluctant to register First Information Reports (FIR) for kidnapping till a ransom demand is made. But this rarely happens in the case of poor children who may have been lifted for begging or prostitution or other violation like what happened in the Noida killing.India has adopted several laws on protection of children including the freshly passed Child Marriage Act, Domestic Violence Act and child labour protection Act but so far no law on missing children.To cope with the problem, the Women and Child Development Ministry is considering founding a national commission for children which will exclusively cater to complaints related to children with similar legal power with the National Commission for Women
http://www.bernama.com.my/bernama/v3/news.php?id=245230
Saturday, February 03, 2007
An eye-opener for police
Much more needs to be done to sensitise cops entrusted with the task of locating missing persons, says DEVESH K. PANDEY
The Hindu 3, February
The Noida killings have acted as an eye-opener for the Delhi police. Although they have initiated a series of measures to ensure that such gory incidents do not take place in the Capital, it seems much more needs to be done to sensitise police personnel who are entrusted with the task of locating missing persons. To begin with, the Delhi police have shown great alacrity in taking steps to send across a strong message to the public that their children are well protected here. Following a hue and cry over the Nithari killings in Noida, the top brass not only sought the updated data on missing persons but also directed the Deputy Commissioners of Police to keep track of pending cases of missing children and strictly adhere to relevant standing orders.
The most significant step has been the formulation of District Missing Persons Units (DMPU). The objective of this unit -- which is headed by an Assistant Commissioner of Police -- is to constantly monitor complaints of missing persons in coordination with the Missing Persons Squad and the Crime Branch. While the DMPUs have now become functional and reports about missing persons are being meticulously tracked and recorded, some police officers feel that there is a need to adopt a judicious approach so that time and effort are not wasted on those missing people who have either been located or in whose disappearance there is no criminal angle involved.
In Delhi, the police have an institutionalised mechanism in place for enquiring into cases of missing persons. Going by the book, on receipt of any such complaint the police are required to flash a message to all the police stations relaying a description of the missing person. Hue and cry notices are then taken out and advertisements published and telecast to seek information from the public. In the case of missing juveniles, there is a standing order to compulsorily register a case of abduction if the child is not located within a short span of time.
Senior officers agree that despite these efforts there are chances that instances of organised crime like the Nithari killings may go undetected if cases of missing persons, especially juveniles, are not investigated on a priority basis. This can also happen in the absence of a sound ground-level intelligence network.
A case in point is a trend noticed in the late 1970s when there was a sudden jump in incidents of children going missing from different parts of South Delhi. Responding to the situation, the police had constituted teams to investigate the matter and caught hold of criminals who abducted the children. As it turned out, the abducted children were being forced into begging.
As this case illustrates, there is a need to take every "missing" complaint with all the seriousness it deserves because what may appear to be simple cases of "elopement" or "people going away out of their own choice'' can end up turning into Nithari-like episodes.
The Hindu 3, February
The Noida killings have acted as an eye-opener for the Delhi police. Although they have initiated a series of measures to ensure that such gory incidents do not take place in the Capital, it seems much more needs to be done to sensitise police personnel who are entrusted with the task of locating missing persons. To begin with, the Delhi police have shown great alacrity in taking steps to send across a strong message to the public that their children are well protected here. Following a hue and cry over the Nithari killings in Noida, the top brass not only sought the updated data on missing persons but also directed the Deputy Commissioners of Police to keep track of pending cases of missing children and strictly adhere to relevant standing orders.
The most significant step has been the formulation of District Missing Persons Units (DMPU). The objective of this unit -- which is headed by an Assistant Commissioner of Police -- is to constantly monitor complaints of missing persons in coordination with the Missing Persons Squad and the Crime Branch. While the DMPUs have now become functional and reports about missing persons are being meticulously tracked and recorded, some police officers feel that there is a need to adopt a judicious approach so that time and effort are not wasted on those missing people who have either been located or in whose disappearance there is no criminal angle involved.
In Delhi, the police have an institutionalised mechanism in place for enquiring into cases of missing persons. Going by the book, on receipt of any such complaint the police are required to flash a message to all the police stations relaying a description of the missing person. Hue and cry notices are then taken out and advertisements published and telecast to seek information from the public. In the case of missing juveniles, there is a standing order to compulsorily register a case of abduction if the child is not located within a short span of time.
Senior officers agree that despite these efforts there are chances that instances of organised crime like the Nithari killings may go undetected if cases of missing persons, especially juveniles, are not investigated on a priority basis. This can also happen in the absence of a sound ground-level intelligence network.
A case in point is a trend noticed in the late 1970s when there was a sudden jump in incidents of children going missing from different parts of South Delhi. Responding to the situation, the police had constituted teams to investigate the matter and caught hold of criminals who abducted the children. As it turned out, the abducted children were being forced into begging.
As this case illustrates, there is a need to take every "missing" complaint with all the seriousness it deserves because what may appear to be simple cases of "elopement" or "people going away out of their own choice'' can end up turning into Nithari-like episodes.
Friday, February 02, 2007
More staff for Juvenile Justice Board sought
The Hindu Jan 31,2007
BANGALORE: After the knee jerk reaction of suspending officials at the observation home at Madivala, the Government seems to be finally taking notice of the many underlying problems in the juvenile justice system that have emerged after the escape of 46 children.
A meeting was held here on Tuesday by child rights organisations and government officials where key recommendations have been made.
The strength of the staff, which stood at nine for 76 children when the break-out took place, was held to be grossly inadequate, for both the care and control of the children.
"At least four probationary officers, 10 guards and four wardens have been recommended for a better functioning of the observation homes," says Arlene Manoharan, research officer at the Centre for the Child and Law at National Law School of India University.
For better functioning of the Juvenile Justice Board, more administrative staff and a permanent office have been recommended.
Since one of the problems faced at the observation home included the younger children sharing space with older ones accused of more serious offences, segregation of the children based on their ages and offences has been recommended. To this effect, separate living arrangements to house the ones accused of more serious offences has been proposed.
A multi-disciplinary committee could take on this responsibility of classification. The committee could also provide the magistrate with informed opinion on the bail and final orders of the children, says Ms. Manoharan.
The other areas of concern included lack of legal and psychological assistance provided to the children. The government extends no legal help to the children, which is handled almost solely by Empowerment of Children and Human Right's Organisation (ECHO). Similarly, virtually no government provided facility for regular counselling exists, which is handled at the Observation centre largely by two non-government organisations, ECHO and BOSCO at the moment. A mental health team has been proposed to help children through their stay at the observation home.
Police reforms
Father Anthony Sebastian, Director, ECHO, believes that the Special Juvenile Police Unit needs to be strengthened, as a step toward reform of the police system.
"Only three divisions have such a unit, where a special officer is employed to look at these cases in a child-friendly way. We need all the city divisions to have such a unit, and also to increase the number of officers from one to three. We need more women officers to take charge of cases where a girl child is involved," he said.
The suspension of the superintendent was unanimously believed to be unnecessary. "Everyone objects to the suspension of Kamalamma. She was one of the few staff members who was able to handle the children in a sensitive and effective manner. She happened to be out, on duty, when the break-out happened," Fr. Anthony said.
BANGALORE: After the knee jerk reaction of suspending officials at the observation home at Madivala, the Government seems to be finally taking notice of the many underlying problems in the juvenile justice system that have emerged after the escape of 46 children.
A meeting was held here on Tuesday by child rights organisations and government officials where key recommendations have been made.
The strength of the staff, which stood at nine for 76 children when the break-out took place, was held to be grossly inadequate, for both the care and control of the children.
"At least four probationary officers, 10 guards and four wardens have been recommended for a better functioning of the observation homes," says Arlene Manoharan, research officer at the Centre for the Child and Law at National Law School of India University.
For better functioning of the Juvenile Justice Board, more administrative staff and a permanent office have been recommended.
Since one of the problems faced at the observation home included the younger children sharing space with older ones accused of more serious offences, segregation of the children based on their ages and offences has been recommended. To this effect, separate living arrangements to house the ones accused of more serious offences has been proposed.
A multi-disciplinary committee could take on this responsibility of classification. The committee could also provide the magistrate with informed opinion on the bail and final orders of the children, says Ms. Manoharan.
The other areas of concern included lack of legal and psychological assistance provided to the children. The government extends no legal help to the children, which is handled almost solely by Empowerment of Children and Human Right's Organisation (ECHO). Similarly, virtually no government provided facility for regular counselling exists, which is handled at the Observation centre largely by two non-government organisations, ECHO and BOSCO at the moment. A mental health team has been proposed to help children through their stay at the observation home.
Police reforms
Father Anthony Sebastian, Director, ECHO, believes that the Special Juvenile Police Unit needs to be strengthened, as a step toward reform of the police system.
"Only three divisions have such a unit, where a special officer is employed to look at these cases in a child-friendly way. We need all the city divisions to have such a unit, and also to increase the number of officers from one to three. We need more women officers to take charge of cases where a girl child is involved," he said.
The suspension of the superintendent was unanimously believed to be unnecessary. "Everyone objects to the suspension of Kamalamma. She was one of the few staff members who was able to handle the children in a sensitive and effective manner. She happened to be out, on duty, when the break-out happened," Fr. Anthony said.
Monday, January 22, 2007
India Assesment Report On Trafficking Released by US State Department
The Government of India has made some progress in combating its significant problem of trafficking in persons since the release of the 2006 Report. In September 2006, the central government responded to the need for a central anti-trafficking law enforcement effort by creating a two-person federal "nodal cell," responsible for collecting and analyzing data of state-level law enforcement efforts, identifying problem areas and analyzing the circumstances creating these areas, monitoring action taken by State governments for combating trafficking in these areas, and organizing coordination meetings with the nodal police officers of the states responsible for trafficking in persons crimes. However, the government still needs to go further in designating and empowering a national agency or office specifically tasked with carrying out an effective law enforcement response to trafficking crimes committed throughout India. The Government has provided significant in-kind contributions to a USG-funded United Nations Office of Drugs and Crime (UNODC) two-year program in Maharashtra, Goa, West Bengal, and Andhra Pradesh, focused on raising the awareness of police and prosecutors on the problem of trafficking and to build the capacity of these police and prosecutors to investigate and prosecute persons involved with trafficking. Law enforcement activity to combat trafficking in persons remains confined to the state-level and continues to be relatively low in comparison to the estimated extent of the situation. However, in June, two former state ministers in Jammu and Kashmir were arrested for trafficking in minor girls for commercial sexual exploitation, along with other senior government officials. Two traffickers in Delhi were also convicted and sentenced to three and seven years in prison, and another was arrested in August.
In November 2006, the Parliamentary Committee returned the amendments to the Immoral Trafficking Prevention Act to the Ministry of Women and Child Development for revision. The Committee asked the Ministry to clarify language, provide a clearer delineation between criminals and victims, prioritize programs and resources for expanded rehabilitation and reintegration efforts, and recommended passage of the bill with those changes.
Despite estimates of a significant debt bondage situation in the country, the Government of India reports no arrests, prosecutions, or convictions of employers using bonded labor. India similarly did not provide evidence of any rescues of victims of bonded labor. India did, however, make moderate progress on addressing child labor; between September and November, Delhi police rescued 140 children working in "zari" factories and rice mills, but it is unclear how these children have been rehabilitated. In October, the government also enacted a ban on the employment of children in domestic work or the hospitality industry with penalties including 3 months to 2 years incarceration and the possibility of fines.
Monday, December 11, 2006
CJI for judicial accountability
CJI for judicial accountabilityRavi Dayal
[ 10 Dec, 2006 0222hrs ISTTIMES NEWS NETWORK ]
PATNA: Chief Justice of India Y K Sabharwal on Saturday favoured detailed deliberations on the proposed Judicial Accountability Bill in Parliament. He, however, skirted concerns expressed by MPs about judicial activism that impinged on the sovereignty of the legislature. Inaugurating a national seminar on "Erosion of values in judicial system and its refurbishment" here, Justice Sabharwal said he does not find anything wrong in introduction of the Bill as it is within the ambit of judiciary. However, "if you cannot trust the President, Prime Minister, the Chief Justice of India, I can only say sorry", he added. The seminar was organised jointly by the Bar Council of India and Bihar State Bar Council. Justice Sabharwal said he wants corruption level in judiciary to be zero. "Rampant corruption among the staff in the subordinate judiciary shatters the confidence of litigants in the judicial system," he said, stressing the need for transparency and accountability. He said the implementation of court orders by the governments remains a grey area. The Central and state governments are the first respondents in 17,000 of the 35,000 petitions pending in the Supreme Court, he said, adding the governments are the biggest litigants. He was critical of the mushroom growth of law colleges which, he felt, has been affecting the quality of lawyers. The Bar Council of India, which grants affiliation to these colleges, should do some introspection in this regard. He also said the Indian courts have a huge workload but few facilities to cope up with the pressure compared to many developed and developing countries. Justice B P Singh of the Supreme Court said unnecessary criticism of an institution harms it. He attributed much of the criticism of judiciary to misunderstanding. Another Supreme Court judge, Justice S B Sinha, said, "We must try to refurbish the image of justice delivery system." He also gave a feel-good kind of certificate to Bihar judges when he said the performance of judicial officers of the state is good compared to their counterparts in other parts of the country. Former Chief Justice of Kolkata High Court and Andhra Pradesh High Court, Justice P S Mishra also said the fall in standards of judicial system is not as much in Bihar as in other states. Former CJI Jagannath Pattnaik underlined the importance of judiciary saying if the judicial system fails, the democracy will fail. "If I say there is no erosion of the values in judicial system, it will be sheer hypocrisy," he said, adding accountability and transparency must be ensured. He was equally critical of lawyers. "In the past, lawyers commanded respect but now they are demanding it," he said exhorting lawyers to restore the old glory to judicial system.
[ 10 Dec, 2006 0222hrs ISTTIMES NEWS NETWORK ]
PATNA: Chief Justice of India Y K Sabharwal on Saturday favoured detailed deliberations on the proposed Judicial Accountability Bill in Parliament. He, however, skirted concerns expressed by MPs about judicial activism that impinged on the sovereignty of the legislature. Inaugurating a national seminar on "Erosion of values in judicial system and its refurbishment" here, Justice Sabharwal said he does not find anything wrong in introduction of the Bill as it is within the ambit of judiciary. However, "if you cannot trust the President, Prime Minister, the Chief Justice of India, I can only say sorry", he added. The seminar was organised jointly by the Bar Council of India and Bihar State Bar Council. Justice Sabharwal said he wants corruption level in judiciary to be zero. "Rampant corruption among the staff in the subordinate judiciary shatters the confidence of litigants in the judicial system," he said, stressing the need for transparency and accountability. He said the implementation of court orders by the governments remains a grey area. The Central and state governments are the first respondents in 17,000 of the 35,000 petitions pending in the Supreme Court, he said, adding the governments are the biggest litigants. He was critical of the mushroom growth of law colleges which, he felt, has been affecting the quality of lawyers. The Bar Council of India, which grants affiliation to these colleges, should do some introspection in this regard. He also said the Indian courts have a huge workload but few facilities to cope up with the pressure compared to many developed and developing countries. Justice B P Singh of the Supreme Court said unnecessary criticism of an institution harms it. He attributed much of the criticism of judiciary to misunderstanding. Another Supreme Court judge, Justice S B Sinha, said, "We must try to refurbish the image of justice delivery system." He also gave a feel-good kind of certificate to Bihar judges when he said the performance of judicial officers of the state is good compared to their counterparts in other parts of the country. Former Chief Justice of Kolkata High Court and Andhra Pradesh High Court, Justice P S Mishra also said the fall in standards of judicial system is not as much in Bihar as in other states. Former CJI Jagannath Pattnaik underlined the importance of judiciary saying if the judicial system fails, the democracy will fail. "If I say there is no erosion of the values in judicial system, it will be sheer hypocrisy," he said, adding accountability and transparency must be ensured. He was equally critical of lawyers. "In the past, lawyers commanded respect but now they are demanding it," he said exhorting lawyers to restore the old glory to judicial system.
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