Sunday, February 28, 2010
Supreme Court & RTI - the continuing saga
Here are the latest RTI query from activist Subhash Chandra Agrawal and the reply from the Supreme Court. Also, it is now clear from Supreme Court's reply to another RTI applicant, Deepak Khosla, that the CJI himself directed the SC Registry to challenge Justice Ravindra Bhat's judgment in the assets disclosure case in Delhi High Court. Is not the CJI himself contradicting his position that his office is different from that of the Registry? Supreme Court has refused to answer Khosla's other queries about decision making of CJI and the Judges in this case, and in the case of non-elevation of Justice Shah (which is now before the Supreme Court itself as an appeal against the CIC's decision) saying it had no information. The Supreme Court has further replied to Khosla that it has not yet appealed against the January 12 Full Court judgment of Delhi High Court in the assets declaration case.
Adoption Rights of non-Hindus and Constitutionality of Personal Laws
Shabnam Hashmi has filed a PIL in the Supreme Court challenging 'a law which denies a child a right to inheritance if s/he is adopted by non-Hindu parents.' The case is surely going to be contentious, given its implications for personal laws.
I am grateful to a reader for drawing my attention to the case of Manuel Theodore, where 'in the absence of legislation', the Bombay High Court recognised the right of a Christian parent to adopt a destitute and orphaned child. Justice Rebello interpreted Article 21 to hold that 'the right of the child to be adopted and consequently to have a home, a name and a nationality has to be considered as part of his right to life.' [para 19] What is more interesting, to my mind, is that the Court goes on to recognise a right to adopt on part of the parents flowing from Article 14:
In so far as the adoptive parents are concerned, it flows from the right of such parents from Article 14 of the Constitution of India even amongst those couples whose belief or customs do not provide for adoption. They cannot be discriminated from adopting a child without the State being accused of arbitrariness and infracting Article 14 of the Constitution. Once a couple is permitted under the Guardians and Wards Act of being capable of taking a child in guardianship the consequence must follow that the legal guardian can move the Court for adoption of the child in order to fulfill the constitutional objective of such a child to have a home, a name and a nationality. The Court no doubt has strayed into the area of personal law in what I may describe as the post adoption stage. Though adoption by itself is a fundamental right of an orphaned, abandoned or destitute child, the legal consequence of being given in adoption will entail application of Family Law or what we term as Personal law. This to my mind will not have the effect on the rights of any citizen to profess his religion guaranteed under Article 25 of the Constitution. The Special Marriage Act is in force. Any citizen of the country can marry under the said Act. Marriages and Divorce of those who marry under the said Act are governed by the said Act. Succession by the Indian Succession Act. People professing different faiths marry under that said Act. The vision of the new millennium must guide our religious leaders. Their broad vision can lead their flock to understand religions, as the founders of Religions would have wanted their followers to follow, love and tolerance must be the cornerstone. Religious teachings must undergo the same interpretative processes much as Judges to through for finding answers to justice social, economic and political. [Para 28]
Without referring to it directly, Bombay High Court appears to have overruled its decision in Narasu Appa Mali by holding that:
'the right of such child to be adopted, is not pursuant to any personal law. The right of the child is independent, as a human being, and flows from his right to life as contained in Article 21 of the Constitution. Any eligible parent or parents irrespective of religion can apply to adopt a child. Personal laws, as pointed out earlier, have to meet the test of Part III of the Constitution, if they are to be saved.' [para 30]
But as the discussion in the comment section of this post shows, it is still arguable, Manuel Theodore notwithstanding, that Mali continues to be good law. One hopes that Hashmi's petition will force the Supreme Court to take note of all precedents and arguments on both sides to rule clearly on the constitutionality of personal laws.
I am grateful to a reader for drawing my attention to the case of Manuel Theodore, where 'in the absence of legislation', the Bombay High Court recognised the right of a Christian parent to adopt a destitute and orphaned child. Justice Rebello interpreted Article 21 to hold that 'the right of the child to be adopted and consequently to have a home, a name and a nationality has to be considered as part of his right to life.' [para 19] What is more interesting, to my mind, is that the Court goes on to recognise a right to adopt on part of the parents flowing from Article 14:
In so far as the adoptive parents are concerned, it flows from the right of such parents from Article 14 of the Constitution of India even amongst those couples whose belief or customs do not provide for adoption. They cannot be discriminated from adopting a child without the State being accused of arbitrariness and infracting Article 14 of the Constitution. Once a couple is permitted under the Guardians and Wards Act of being capable of taking a child in guardianship the consequence must follow that the legal guardian can move the Court for adoption of the child in order to fulfill the constitutional objective of such a child to have a home, a name and a nationality. The Court no doubt has strayed into the area of personal law in what I may describe as the post adoption stage. Though adoption by itself is a fundamental right of an orphaned, abandoned or destitute child, the legal consequence of being given in adoption will entail application of Family Law or what we term as Personal law. This to my mind will not have the effect on the rights of any citizen to profess his religion guaranteed under Article 25 of the Constitution. The Special Marriage Act is in force. Any citizen of the country can marry under the said Act. Marriages and Divorce of those who marry under the said Act are governed by the said Act. Succession by the Indian Succession Act. People professing different faiths marry under that said Act. The vision of the new millennium must guide our religious leaders. Their broad vision can lead their flock to understand religions, as the founders of Religions would have wanted their followers to follow, love and tolerance must be the cornerstone. Religious teachings must undergo the same interpretative processes much as Judges to through for finding answers to justice social, economic and political. [Para 28]
Without referring to it directly, Bombay High Court appears to have overruled its decision in Narasu Appa Mali by holding that:
'the right of such child to be adopted, is not pursuant to any personal law. The right of the child is independent, as a human being, and flows from his right to life as contained in Article 21 of the Constitution. Any eligible parent or parents irrespective of religion can apply to adopt a child. Personal laws, as pointed out earlier, have to meet the test of Part III of the Constitution, if they are to be saved.' [para 30]
But as the discussion in the comment section of this post shows, it is still arguable, Manuel Theodore notwithstanding, that Mali continues to be good law. One hopes that Hashmi's petition will force the Supreme Court to take note of all precedents and arguments on both sides to rule clearly on the constitutionality of personal laws.
Friday, February 26, 2010
Arbitrariness in access to justice
By Renu Gupta
Guest Blogger
This post refers to Supreme Court's decision in State of Uttaranchal v. Balwant Singh Chaufal (PIL Guidelines Case)
Justice Dalveer Bhandari and Justice Mukundakam Sharma recently rendered a judgment in this case, which was an appeal from the decision of the High Court of Uttarkhand in a public interest litigation. The High Court had directed the state government to decide whether appointment of an Advocate General for the state of Uttaranchal beyond the age of 62 years, was valid or not.
The law on this issue is settled that there is no upper limit on age for a person to be appointed to the constitutional post of an Advocate General. The appeal was allowed.
This judgment raises certain interesting issues about the need to regulate the field of public interest litigations. In paragraph 198 of the judgment, certain guidelines have been framed by the court. Here, I have given a gist of those guidelines along with my comment.
1. Encourage genuine and bona fide PIL.
Comment - This guideline is not new and has been reiterated by courts in almost every PIL.
2. High Courts to formulate rules for encouraging and discouraging PIL.
Comment - The judgment is silent as regards why there should be no such uniformity in the Supreme Court in entertaining PILs. Further, implementation of such a guideline will clearly result in judicial legislation in a sphere where there is no law. In a system where we still follow separation of powers (increasingly being diluted by the judiciary) the sphere of legislation should be left to the legislature.
3. The Court should verify the credentials of the petitioner.
Comment - Considering the volume of litigation in India, it is doubtful as to how useful and practical this exercise could be.
4. The Court should prima facie satisfy itself as to correctness of petition.
Comment - Since a petition is supported by an affidavit of the petitioner, in case of a false statement made therein, he can be liable to be prosecuted for the offence of perjury.
5. The Court should be satisfied that substantial public interest is involved.
Comment - This can only be done once the court hears the parties on merits.
6. The Court should ensure that petition which involves larger public interest and urgency should be given priority.
Comment - This is arbitrary and violative of the spirit of Article 14 itself, as the judiciary is going to discriminate between two litigants on arbitrary grounds.
7. The court before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.
8. The court should ensure that the petitions filed for ulterior motives must be discouraged by imposing exemplary costs.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.
In a case, titled University of Kerala v. Council of Principals of Colleges, Kerala, decided on November 11, 2009, reported at (2010)1 SCC 353, Justice Katju and Justice Ganguly have referred the question of judicial legislation by courts in PILs, to a larger bench.
At paragraph 18 of the judgment (from manupatra citation), the court (Justice Ganguly wrote a separate but concurring judgment) observed that:
“In my respectful opinion, once the Committee's Report was received by the Court, the Court should have thereafter, instead of passing a judicial order directing implementation of the recommendations, sent it to the appropriate Legislature or its delegate (which in this case is the University which can make delegated legislation in the form of Statutes or Ordinances). It is for the Legislature or the concerned authorities to make a law accepting the Report in toto or accepting it in part, or not accepting it at all but it is not for the Court to pass judicial orders for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary.”
At paragraphs 27 and 28, the court held that:
“27. It is not necessary to refer to the other decisions of this Court where it has assumed legislative or executive powers, but the time has come when a thorough reconsideration by an authoritative Constitution Bench is required about the constitutional correctness of these decisions.
28. Hence, I refer the following questions of law, preferably to be decided by an authoritative Constitution Bench of this Court, to be nominated by Hon'ble the Chief Justice of India:
1. Whether the Court by an interim order dated 22.09.2006 can validly direct implementation of the Lyngdoh Committee's Report;
2. Whether the order dated 22nd September, 2006 really amounts to judicial legislation;
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection; and
5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State.
29. In our opinion, these are questions of great constitutional importance and hence, in our respectful opinion they require careful consideration by a Constitution Bench of this Court. The matters we are referring to a larger Bench are occurring in a large number of cases all over the country and indeed all over the world. Hence, the issues we have raised have to be decided after careful consideration preferably by a Constitution Bench and after hearing learned Counsel for the parties, and also taking the help of some senior counsel as amicus curiae.”
Conclusion
There are no settled legal principles for judicial legislation in an area where there is an existing vacuum and even reference of this question to a larger bench does not address the present situation. Pending decision of the Supreme Court, on the question referred, various High courts and the Supreme Court have been entertaining PILs and effectively judicially legislating. For instance, in the case regarding night shelter for the homeless in Delhi, the bench comprising of Justice Dalveer Bhandari has framed certain guidelines.
There are certain judges, [like Justice Katju] who are reluctant to entertain PILs which necessarily involve judicial legislation. However, there are other judges, who want to be compassionate and therefore frame guidelines in PILs. This results in a situation where access to justice for a litigant is arbitrary in itself, since he is more likely to get a relief if his case gets listed before a pro-PIL judge.
[The author practices as an advocate in Delhi]
Guest Blogger
This post refers to Supreme Court's decision in State of Uttaranchal v. Balwant Singh Chaufal (PIL Guidelines Case)
Justice Dalveer Bhandari and Justice Mukundakam Sharma recently rendered a judgment in this case, which was an appeal from the decision of the High Court of Uttarkhand in a public interest litigation. The High Court had directed the state government to decide whether appointment of an Advocate General for the state of Uttaranchal beyond the age of 62 years, was valid or not.
The law on this issue is settled that there is no upper limit on age for a person to be appointed to the constitutional post of an Advocate General. The appeal was allowed.
This judgment raises certain interesting issues about the need to regulate the field of public interest litigations. In paragraph 198 of the judgment, certain guidelines have been framed by the court. Here, I have given a gist of those guidelines along with my comment.
1. Encourage genuine and bona fide PIL.
Comment - This guideline is not new and has been reiterated by courts in almost every PIL.
2. High Courts to formulate rules for encouraging and discouraging PIL.
Comment - The judgment is silent as regards why there should be no such uniformity in the Supreme Court in entertaining PILs. Further, implementation of such a guideline will clearly result in judicial legislation in a sphere where there is no law. In a system where we still follow separation of powers (increasingly being diluted by the judiciary) the sphere of legislation should be left to the legislature.
3. The Court should verify the credentials of the petitioner.
Comment - Considering the volume of litigation in India, it is doubtful as to how useful and practical this exercise could be.
4. The Court should prima facie satisfy itself as to correctness of petition.
Comment - Since a petition is supported by an affidavit of the petitioner, in case of a false statement made therein, he can be liable to be prosecuted for the offence of perjury.
5. The Court should be satisfied that substantial public interest is involved.
Comment - This can only be done once the court hears the parties on merits.
6. The Court should ensure that petition which involves larger public interest and urgency should be given priority.
Comment - This is arbitrary and violative of the spirit of Article 14 itself, as the judiciary is going to discriminate between two litigants on arbitrary grounds.
7. The court before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.
8. The court should ensure that the petitions filed for ulterior motives must be discouraged by imposing exemplary costs.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.
In a case, titled University of Kerala v. Council of Principals of Colleges, Kerala, decided on November 11, 2009, reported at (2010)1 SCC 353, Justice Katju and Justice Ganguly have referred the question of judicial legislation by courts in PILs, to a larger bench.
At paragraph 18 of the judgment (from manupatra citation), the court (Justice Ganguly wrote a separate but concurring judgment) observed that:
“In my respectful opinion, once the Committee's Report was received by the Court, the Court should have thereafter, instead of passing a judicial order directing implementation of the recommendations, sent it to the appropriate Legislature or its delegate (which in this case is the University which can make delegated legislation in the form of Statutes or Ordinances). It is for the Legislature or the concerned authorities to make a law accepting the Report in toto or accepting it in part, or not accepting it at all but it is not for the Court to pass judicial orders for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary.”
At paragraphs 27 and 28, the court held that:
“27. It is not necessary to refer to the other decisions of this Court where it has assumed legislative or executive powers, but the time has come when a thorough reconsideration by an authoritative Constitution Bench is required about the constitutional correctness of these decisions.
28. Hence, I refer the following questions of law, preferably to be decided by an authoritative Constitution Bench of this Court, to be nominated by Hon'ble the Chief Justice of India:
1. Whether the Court by an interim order dated 22.09.2006 can validly direct implementation of the Lyngdoh Committee's Report;
2. Whether the order dated 22nd September, 2006 really amounts to judicial legislation;
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection; and
5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State.
29. In our opinion, these are questions of great constitutional importance and hence, in our respectful opinion they require careful consideration by a Constitution Bench of this Court. The matters we are referring to a larger Bench are occurring in a large number of cases all over the country and indeed all over the world. Hence, the issues we have raised have to be decided after careful consideration preferably by a Constitution Bench and after hearing learned Counsel for the parties, and also taking the help of some senior counsel as amicus curiae.”
Conclusion
There are no settled legal principles for judicial legislation in an area where there is an existing vacuum and even reference of this question to a larger bench does not address the present situation. Pending decision of the Supreme Court, on the question referred, various High courts and the Supreme Court have been entertaining PILs and effectively judicially legislating. For instance, in the case regarding night shelter for the homeless in Delhi, the bench comprising of Justice Dalveer Bhandari has framed certain guidelines.
There are certain judges, [like Justice Katju] who are reluctant to entertain PILs which necessarily involve judicial legislation. However, there are other judges, who want to be compassionate and therefore frame guidelines in PILs. This results in a situation where access to justice for a litigant is arbitrary in itself, since he is more likely to get a relief if his case gets listed before a pro-PIL judge.
[The author practices as an advocate in Delhi]
Thursday, February 25, 2010
Supreme Court's CBI judgment
The judgment in the case of State of West Bengal v. The Committee for Protection of Democratic Rights has not got the attention it deserves. Except Rajeev Dhavan's article, there has been no serious attempt to critique the judgment. The case involved answering the question whether the High Courts can direct the CBI to investigate into a crime, without the consent of the State Government. The Supreme Court answered this question in the affirmative.
The judgment is significant for further expanding the scope of Article 21. The Court has held that Article 21 not only takes within its fold enforcement of the rights of an accused, but also the rights of the victim, and that the State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain circumstances, even a witness to the crime may seek for and shall be granted protection by the State. [Para 44:ii]
This positive feature apart, there are some noticeable flaws in the judgment, apart from those which Rajeev Dhavan has pointed out. Here are some of the flaws, as I understand.
1. The Court has not answered the question whether Judicial review would enable a High Court to substitute itself in the place of State Government or the Centre. There is no dispute over the Court's claim that judicial review acts as a final arbiter to give effect to the distribution of legislative powers between Parliament and State Legislatures, and to show any transgression by such entity. [Para 44:iii] But this case involved neither of these two issues.
2. Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure, because the Courts act as guardians and interpreters of the Constitution whenever the federal structure is violated by the legislative action. [Para 44:iv] Correct. But the present case did not involve a similar issue.
3. The Court claims (Para 44:v) that Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226. This is confusing. How does the Court claim this power? The Constitution restricts Parliament from encroaching on the State's rights by distributing the legislative powers between them. How can the Courts justify similar encroachment by themselves, even while restricting Parliament from doing so?
4. Para 44:vi is even more confusing. Entry 2A of List I is about deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State. Is the CBI -which is not an armed force -subject to the control of the Union? Entry 80 of List 1 makes it very clear that extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State would require the consent of the Government of that State in which such area is situated. Overlooking these express provisions, the Court justifies its exercising the "same power" (Non-existent!) which the Union could exercise in terms of the provisions of the statute.
5. If Para 44:vii is any guide, then judicial review henceforth would mean that the Courts can substitute themselves for State and Central Governments, whenever they don't exercise their responsibilities assigned to them under the Constitution, for whatever reason or no reason. Thus if the State Government concerned has not given its consent for the CBI investigation, there is no problem; the High Court can give the same consent on behalf of the State Government. Can this be stretched to other matters? - if the President does not decide a mercy petition, can the Supreme Court or a High Court step in, and decide on her behalf?
6. Para 46 of the judgment classifies the victims, whose rights the Court has sought to defend in this case, rather unreasonably. It is only those victims of those incidents with national and international ramifications who deserve the Courts' intervention in the absence of State Government's consent, to direct CBI investigation. Or if the investigation by the State police lacks credibility or does not inspire confidence. The CBI's own reputation and limited manpower apart, has the judgment opened a Pandora's box, because it is common to find all manner of victims alleging bias, when the State police investigates? If the Courts have the discretion to decide whether in a particular case, the State police lacks credibility or does not inspire confidence, then it will be difficult for the Courts to justify its discretion - in the absence of clear guidelines - inviting the charge of arbitrariness.
The judgment is significant for further expanding the scope of Article 21. The Court has held that Article 21 not only takes within its fold enforcement of the rights of an accused, but also the rights of the victim, and that the State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain circumstances, even a witness to the crime may seek for and shall be granted protection by the State. [Para 44:ii]
This positive feature apart, there are some noticeable flaws in the judgment, apart from those which Rajeev Dhavan has pointed out. Here are some of the flaws, as I understand.
1. The Court has not answered the question whether Judicial review would enable a High Court to substitute itself in the place of State Government or the Centre. There is no dispute over the Court's claim that judicial review acts as a final arbiter to give effect to the distribution of legislative powers between Parliament and State Legislatures, and to show any transgression by such entity. [Para 44:iii] But this case involved neither of these two issues.
2. Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure, because the Courts act as guardians and interpreters of the Constitution whenever the federal structure is violated by the legislative action. [Para 44:iv] Correct. But the present case did not involve a similar issue.
3. The Court claims (Para 44:v) that Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226. This is confusing. How does the Court claim this power? The Constitution restricts Parliament from encroaching on the State's rights by distributing the legislative powers between them. How can the Courts justify similar encroachment by themselves, even while restricting Parliament from doing so?
4. Para 44:vi is even more confusing. Entry 2A of List I is about deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State. Is the CBI -which is not an armed force -subject to the control of the Union? Entry 80 of List 1 makes it very clear that extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State would require the consent of the Government of that State in which such area is situated. Overlooking these express provisions, the Court justifies its exercising the "same power" (Non-existent!) which the Union could exercise in terms of the provisions of the statute.
5. If Para 44:vii is any guide, then judicial review henceforth would mean that the Courts can substitute themselves for State and Central Governments, whenever they don't exercise their responsibilities assigned to them under the Constitution, for whatever reason or no reason. Thus if the State Government concerned has not given its consent for the CBI investigation, there is no problem; the High Court can give the same consent on behalf of the State Government. Can this be stretched to other matters? - if the President does not decide a mercy petition, can the Supreme Court or a High Court step in, and decide on her behalf?
6. Para 46 of the judgment classifies the victims, whose rights the Court has sought to defend in this case, rather unreasonably. It is only those victims of those incidents with national and international ramifications who deserve the Courts' intervention in the absence of State Government's consent, to direct CBI investigation. Or if the investigation by the State police lacks credibility or does not inspire confidence. The CBI's own reputation and limited manpower apart, has the judgment opened a Pandora's box, because it is common to find all manner of victims alleging bias, when the State police investigates? If the Courts have the discretion to decide whether in a particular case, the State police lacks credibility or does not inspire confidence, then it will be difficult for the Courts to justify its discretion - in the absence of clear guidelines - inviting the charge of arbitrariness.
Wednesday, February 24, 2010
Plane-spotting in the times of terror
The Delhi Police has arrested two British plane-spotters under charges of spying. This is not the first case of overzealous, humourless officers hounding eccentric-but-essentially-harmless-nerds: some 9 years ago, in a very similar incident, Greece went to the extent of trying and convicting four plane-spotters. Hopefully better sense will prevail in India.
See also: Bhairav Acharya on the joys of plane-spotting.
See also: Bhairav Acharya on the joys of plane-spotting.
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