Wednesday 14 April 2010
Wednesday 23 December 2009
Tuesday 8 December 2009
The filing of an SLP in the Supreme Court directly against the CIC’s order directing disclosure of information pertaining to appointment of Judges has been described in the print media as “odd” and “sure to raise eyebrows” . The oddity has been sought to be portrayed on two levels – (1) The Delhi High Court has been by-passed even though in the Judges’ assets case, the Registry of the Supreme Court had approached the High Court through a writ petition; and (2) The petitioner before the Supreme Court is the Supreme Court itself.
No wonder then that when the Supreme Court took the SLP on board and issued notice to the Respondent, a news-paper report started the piece with an innocuous sounding “Giving relief to itself...”.
One article even magnanimously quotes the “defence” of Central Public Information Officer of the Supreme Court for this leap in procedure: “this is an issue of far-reaching consequences and substantial questions of law of general public interest which have to be ultimately and conclusively determined by the Supreme Court itself as the top court of the country.”
Is this entire affair really so odd and eyebrow worthy? The law has been very clear and consistent that there is no bar under Article 136 to the Supreme Court exercising jurisdiction in a fitting case even when an alternate remedy exists. Justice Pattanaik succinctly put the legal position in State of U.P. v. Harish Chandra, (1996) 9 SCC 309, in the following words: “Ordinarily where an appeal lies to the Division Bench from the judgment of a Single Judge, the Supreme Court refrains from invoking the power under Article 136 of the Constitution but this is a self-imposed restriction and not a matter ousting the jurisdiction of the Court.” Thus, the Supreme Court has entertained SLPs directly in instances such as when the issue has already been dealt with by the Court [Standard Batteries Ltd. v. CIT, (1995) 211 ITR 444]; when there is a patent error in the impugned order [State of U.P. v. Harish Chandra, (1996) 9 SCC 309]; or even when the Court felt that the petitioner would be prejudiced as the petition had been pending at the Notice stage for two years [Carborundum Universal Ltd. v. CBDT, [1989 Supp (2) SCC 462].
If this is the undisputed legal position since so long, then what is the whole fuss about? We find ourselves in a point of time when the furore over judicial accountability is at its peak. Like always, the furore is a heady mix of genuine concern of responsible citizens on the one hand, and disgruntled litigants / busybodies on the other. But what separates it from other periods in our constitutional history is that the Media is currently at its most powerful in terms of stirring and directing public ire.
It is not really so innocent that the Supreme Court has been portrayed as a person, scheming and master-minding a strategy so as to secure a positive result for “itself”. The “giving relief to itself” type comments cannot but be seen to create such an impression. But is this really the case? Is the analogy of the Supreme Court with an individual litigant really apt?
In my opinion, it is not. There is hardly any dispute that the order passed by the CIC directing disclosure of information pertaining to appointment of Judges raises important issues concerning administration of justice vis-a-vis the rights conferred under the Right to Information Act. No objective mind can say that this is not a debate that requires detailed consideration and careful balancing. Therefore, to ensure that such an important issue is decided by the highest court in the country cannot be considered as not being in the larger public interest.
Why then are we stressing on the Supreme Court by-passing the Delhi High Court, as if it is unhappy that the Single Judge decided against “it” in the Assets Declaration case, and realizes that filing a case before “itself” will get it “relief”. We are because the Media is stressing upon it, cashing in on the current commotion over judicial accountability.
The Supreme Court is the highest Court in our country. It still represents an organ of our State that the normal public has faith in. Judicial corruption is not yet taken for granted unlike political or bureaucratic corruption, and that is reason enough for the Judiciary to try and maintain its independence, while devising ways to rid itself of whatever corruption there is.
Therefore, when an issue of public importance arises, there is no real surprise in the Supreme Court taking it upon itself to settle the same. Those in the legal profession understand this, and perhaps that is why the issue of whether the CPIO of the Supreme Court should have approached the High Court first was not even pressed by the Respondent’s counsel!
Wednesday 18 November 2009
Monday 16 November 2009
Tuesday 11 August 2009
This post, though, wants to go a few step backwards from the last instance of introduction of reservations for OBCs in higher educational institutions. More particularly, to 8th May, 1985, when 5 Judges of the Supreme Court delivered an opinion in the case of K.C. Vasanth Kumar v. State of Karnataka, 1985 (Supp) SCC 714.
The unique feature of the case was that it did not arise in the midst of a factual dispute, but was merely filed to obtain the Court's opinion on the issue of reservations, which would serve as a guide for the Commission that the State of Karnataka proposed to appoint for examining the question of affording better educational and employment opportunities to SCs / STs etc.
Justice Chandrachud, in his opinion, that reservation in favour of SCs and STs must continue as at present (without a creamy layer test) for a further period not exceeding fifteen years. In his opinion, another fifteen years would make it 50 years since the advent of the Constitution, a period long enough for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, etc.
Yet, this opinion got lost somewhere with the efflux of time. In the year 2000, the government of Andhra Pradesh passed the Andhra Pradesh Schedule Castes (Rationalisation of Reservations) Act, 2000, which sought to draw a sub-classification within the list of Schedule castes prepared under Article 341(1) of the Constitution by creating 4 groups, to whom the benefit of reservation would be differently distributed based on their backwardness.
This Act was struck down in the case of E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, where a 5 Judge Constitution Bench held that the list under Article 341(1) is a homogeneous list that cannot be sub-classified. It also held that a State has no legislative competence to effect such a classification. Therefore, if ever a creamy layer test is to be introduced for SCs / STs, the same has to be introduced by Parliament by way of a law. Justice SB Sinha had also given a concurring opinion in this case to the same effect.
Needless to say, caste politics will ensure that such a law will never come to be passed in Parliament.
Since then, the SCs / STs having received a Constitutional sanction have remained untouched, with every lawyer appearing for the anti-reservationists in the recent Reservations case [Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1] clarifying to the Court that their arguments regarding illegality of no creamy layer having been provided for is confined only to reservation for OBCs.
It is in fact interesting to note that Article 334 of the Consitution currently provides that reservation of seats for SCs and STs in the Lok Sabha and the legislative assemblies of states shall cease after 60 years. The provision originally read 40 years, but on 20.12.1989, "50" was substituted in place of "40", and on 25.1.2000, "60" was substituted in place of "50"! If i were a betting man, I know one constitutional amendment I would be betting on for the year 2010.
Has such a blatant desecration of a constitutional provision ever gone so unnoticed in our constitutional history?
All this has truly made the SCs and STs the "untouchables" of our constitution, ones who fall beyond the scope of Article 17 of the constitution. But one recent observation by Justice SB Sinha (!) may become the foundation for a future assault on this untouchability.
In State of Kerala v. People's Union for Civil Liberties, MANU/SC/1302/2009, Justice Sinha was discussing the constitutional validity of an amendment in a Kerala Act prohibiting sale of tribal lands to outsiders, discussed the issue whether Schedule Tribes have a right under Article 21 to be rehabilitated in their own habitat. The issue arose because the impugned amendment took away the provision declaring transfer of land to an outsider void to the extent it applied to a small tract of land upto 2 hectares.
Justice Sinha, while relying on observations in the Narmada Bachao Andolan case, and certain international conventions, held that the removal of a population by way of an exceptional measure is not ruled out, subject to them being provided alternate land of at least the same quality.
While holding this, he also discussed the oft ignored aspect of this issue:
"Indisputably, the question of restoration of land should be considered having regard to their exploitation and rendering them homeless from the touchstone of Article 46 of the Constitution of India. For the aforementioned purpose, however, it may be of some interest to consider that the insistence of autonomy and the view of a section of people that tribals should be allowed to remain within their own habitat and not be allowed to mix with the outside world would depend upon the type of Scheduled Tribe category in question. Some of them are still living in jungle and are dependant on the products thereof. Some of them, on the other hand, have become a part of the mainstream. The difference between Scheduled Tribes of North-East and in some cases the Islands of Andaman and Nicobar, on the one hand, and of those who are on the highlands and plains of the Southern regions must be borne in mind."
Though delivered in a completely different context, the Judgment recognizes a difference in between different kinds of STs, something that might go against the essence of E.V. Chinnaiah. It is also a significant judgment for taking a more realistic approach towards the current social status of STs.
Let's hope this observation does not remain confined to its "factual matrix", and becomes an unintended foundation for a more concerted effort at abolition of "untouchability".
Saturday 8 August 2009
But the fact of the matter is that it does. Most around the Supreme Court knew Justice Sinha as the quintessential book-worm, the man who had no life outside his judgments. And the judgments, ah those Judgments, did not let that image down. You just have to pick up any volume of a SCALE or any other journal of the last couple of years to note his overwhelming presence in those pages. Actually, why bother with a subscriber's copy of a journal, you can go through the posts on this blog to realize what I mean.
Justice Sinha gave us the law - neatly compiled, condensed and presented with illuminating para headings for the impatient, all while incidentally deciding the factual dispute at hand. These were the kind of judgments we fashionably bitched about in law school as being the malady of the Indian Judiciary, but thanked god for them when last last date for project submission drew close.
The judgments are not the reason behind this post though. In a court that is ridiculously impatient with all lawyers except a chosen few, and ridiculously over-indulgent with those few, Justice Sinha (as he then was) was one of the few who heard those who spoke sense with patience, and did not cringe at issuing notice and granting interim relief while exercising "exceptional" jurisdiction under Article 136. He did not have mathematical formulae for dismissing SLPs in Anticipatory Bail or Quashing or NDPS or other such typically frowned upon matters.
It is often said that the Supreme Court of India is actually the Supreme Courts of India, with the 12 benches offering a wide variety of approaches towards similar matters. As lawyers we tend to ascribe the dismissal of a good case to the particular Judge it came before and rush for the next one in a business-as-usual manner, but for the litigant it presents a sad end to a long journey, that cannot easily be digested as being attributable to the idiosyncracies of a particular person.
Justice Sinha did not leave the lawyer, at least me, with that feeling at the end of a dismissal. And that is why he will be missed.
Sunday 12 July 2009
Friday 3 July 2009
"An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act." (Para 22)
I don't know who to believe.