Rahul Srivastava v. Union of India

Supreme Court yesterday dismissed the PIL filed by Rahul Srivastava, a student, questioning the continuance in office of  Justice Dalveer Bhandari, who has been nominated for the post of a Judge of the International Court of Justice. The hearing of the case has been covered in some newspapers today. (Another report is here.) The following is one more version of the proceedings, which is slightly different from what has been reported in the papers today. It may be read in addition to the newspaper reports. 


When Justice Kabir asked what was the public interest in the case, Prashant Bhushan, counsel for the petitioner explained that independence of the judiciary, according to the Advocates-on-Record judgment, required that there should be no interference from the executive in the matter of appointment of Judges. If that is so, how could a sitting Judge accept the help of the Government in actively canvassing support in the international fora for his judgeship in the ICJ was the question posed by Bhushan.  


When Justice Kabir did not agree with this argument, Prashant Bhushan said he realised that it was too late in the day to challenge Justice Bhandari's nomination, as the ICJ election was scheduled to take place the next day.  Therefore, he said he was keen on the second prayer of the petition, which wanted the court to lay down the norms for the future.  When Justice Kabir suggested  that he should then move a proper petition for the same, Bhushan insisted it was indeed a proper petition for that purpose.  If he moved a proper petition later, then the Court might say it was just an academic question; therefore, it was the right moment to examine this issue. Bhushan further suggested that the Court could adjourn the matter, rather than dismiss it.  At this point, it appeared as if Justice Kabir was favourably inclined to consider it. 


However, Justice Kabir made up his mind to dismiss it, when the Attorney-General Vahanvati reminded the Bench what signals it (the admission of the matter even for the future) would send to our efforts to elect Justice Bhandari the next day.  Bhushan then offered to withdraw the petition, because its dismissal would close the option of its being heard again later.   

32 Years Later Not Much Has Changed

Today's front page of the Times of India carries a story about a 19 year-old who has been in jail in New Delhi for the past year on the charge that he stole 200 Rs because he could not post bail (which was 10,000 Rs). Ordinarily if convicted he would serve three months, so on the advice of his lawyer he finally reluctantly pleaded guilty yesterday and was released. (full disclosure: I know both the reporter of this story and the legal organization - HRLN - that represented him).

To anyone who has worked around the criminal justice system in India there is nothing new to this story. In Delhi alone there are hundreds if not thousands like him who have already served more time than they would likely ever be convicted for. They just can't afford bail. Essentially, because they are poor they are trapped. While in jail they lose their jobs, they lose touch with their families, and they frequently become depressed and despondent, making them susceptible to drug and alcohol addiction. They lose, society loses, tax payers lose.

32 years ago one of the first seminal Public Interest Litigation cases was decided: Hussainara Khatoon vs. State of Bihar in which Justice Bhagwati eloquently ordered the release of thousands of under-trials in Bihar, trapped by a bail system that like today's essentially criminalizes poverty. Basically, the order said that when prisoners could show ties to the community a court should consider releasing them without them having to post bail.

I am not a criminal law expert, but from my perspective it strikes me despite all the reverence still given to the Hussainara Khatoon decision little has changed. Groups like Commonwealth Human Rights Initiative still tirelessly campaign on this issue and I know the High Courts and Supreme Court have lower courts periodically review their undertrial situations, but the problem is still entrenched.

As TOI points out in their brief editorial on this at the bottom of the article it seems that at the very least persons held should be released once they have served the maximum possible sentence they could have . Then if they don't return for the actual court date they can be held liable, and potentially convicted in their absence, but the penalty would still be time served.

Still, this doesn't address the fundamental problem, which is the poor being held far too long just because they can't afford bail. One option to think about might be to let prisoners out without bail if they have already served more time than an ordinary sentence for their alleged crime. The longer lasting solution would likely include both exploring other alternative forms of bail for the poor and providing them with better legal aid so that their cases can move through the system more quickly.
(Note: this post was revised because I had earlier said that the maximum he could have served was three months. In fact that it is instead a typical sentence for the charge - which still seems quite long even if one actually did steal 200 Rs).

Nandini Sundar v State of Chattisgarh

This post continues the conversation Rohit has already begun on this very interesting case. The following are the most important orders given by the Justices Sudershan Reddy and Surinder Singh Nijjar of the Supreme Court in the case of Nandini Sundar v State of Chattisgarh (2011):

1. The unguided power under the Chattisgarh Police Act 2007 to appoint Special Police Officers is declared unconstitutional. An exception is permitted for non-combat purposes such as relief assistance in disasters.

2. The state of Chattisgarh is to refrain from using SPOs for any other purpose, and must recall all firearms that have been distributed. It must provide security to these SPOs.

3. It must prevent the operation of Salwa Judum and other private armed groups.

The Court found that the SPOs are mostly poor, young and uneducated tribals. They are provided with negligible training, burdened with all the responsibilities of a police officer, provided with fire arms, and used in combat operations against naxals. In this role, they are quickly marked as targets by naxals. At one point, the Court described them being used as cannon-fodder and held that their constitutional rights under Articles 14 and 21 were being violated.

The Court did not spend much intellectual energy to justify its Salwa Judum order. It is an obvious point that the State must not tolerate, let alone encourage, private militias - the Court treated this as such.

The following off-the-cuff comments are presented in order to inspire debate:

1. The legal reasoning of the Court is very sound, and in keeping with a great tradition of judges standing up to political power seeking suspension of civil liberties during emergencies. The Court disagrees with Cicero to say 'Laws cannot remain silent when the canon's roar.' (para 71) Standing up for civil liberties, especially at the times of crisis, is a classic counter-majoritarian judicial function which judges across the world have proudly performed time and again (and one that our own Supreme Court miserably failed to perform in ADM Jabalpur in a different age). The Court insists that 'The fight against terrorism and/or extremism cannot be effectuated by constitutional democracies by whatever means that are deemed to be efficient. Efficiency is not the sole arbiter of all values, and goals that constitutional democracies seek to be guided by, and achieve.' In this insistence no judicial impropriety or breach of separation of powers is evident.

2. The case is yet another remarkable example of the difficulties constitutional courts face in dealing with evidentiary issues. India has one of the few constitutions which allow constitutional courts to be courts of first instance in such a large number of cases. Bereft of the facts determined by a trial court in accordance with well-established rules of evidence, the Court is limited to reading between the lines in conflicting affidavit evidence. We saw similar problems in cases such as Narmada Bachao Andolan and in the Ayodhya case. (Most other constitutional courts have been known to exercise their original jurisdiction extremely sparingly for two reasons - first, as already pointed out, the trial process is the best way to judicially determine facts. Second, if another court has applied its mind to a case, legal issues are clarified and an appellate court has the benefit of at least one other reasoned opinion before making up its own mind. Arguably, this reduces the chances of serious mistakes.)

To clarify, I do not intend this point as a criticism of what the Court did in this case. If anything, the analysis of the patchy and difficult evidence before the Court is rather commendable. Its job would have been much easier, however, if it had the benefit of facts determined by a trial court.

3. The use of public interest litigation to bring this action is fascinating. There was clear public interest involved in the case (the fear that thousands of unemployed armed men scarred by political violence can destabilise society). While this was one of the reasons for the Court's orders, these orders were also justified in part on the basis that the constitutional rights of SPOs were violated. The irony is that the only interested voice absent in the proceedings was that of an SPO. Some of the language used by the Court to describe the tribal youths recruited as SPOs is cringe-makingly paternalistic (see paras 48 and 50), if thoroughly well-intentioned. (For a good discussion of the democratic deficit in associative and public interest standing, see Cane, 'Standing up for the Public' 1995 Public Law 276.

4. Perhaps the most intriguing aspect of the case is contained in the first 22 paragraphs. These paragraphs emphasise the evils of unbridled capitalism and highlight the constitutional mandate for a welfare state. The judges see socio-economic deprivation as the root cause of insurgency in India. While I am politically sympathetic the position articulated by the judges, I find it intriguing that the judges voice these fairly controversial opinions (on what some may term 'policy issues') even though it was somewhat unnecessary to deciding the issues at hand. I think I have issues concerning judicial craft rather than judicial impropriety in mind.

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]