Wednesday 23 December 2009

The jurisprudential importance of Naz Foundation

The Delhi High Court's judgment in Naz Foundation has been widely acclaimed for various reasons. I've analyzed its jurisprudential value for constitutional law in NUJS Law Review. Tell me what you think.

Tuesday 8 December 2009

The deal about Supreme Court, the Petitioner

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!