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GS Paper: Executive & Judiciary

  • Removal of AP State Election Commissioner by ordinance route

    The removal of the SEC by the ordinance route raises the question over the legality of the move. And if it passes the judicial scrutiny it would harm the independence of the body.

    The legality of the removal and its implication for free and fair elections

    • The fact that it was the culmination of an open conflict between the Election Commissioner and Chief Minister makes it a glaring instance of misuse of power.
    • The State government got the Governor to issue an ordinance to cut the SEC’s tenure from five to three years.
    • The ordinance also amended the criterion for holding that office from being an officer of the rank of Principal Secretary and above to one who had served as a High Court judge.
    • This automatically rendered the SEC’s continuance invalid.
    • Last month, just days before the local body polls were to be held, the SEC postponed the elections, citing the COVID-19 outbreak.
    • The State government approached the Supreme Court, but the court declined to interfere.
    • Having exhausted its legal remedy, the government should have waited for the ongoing fight against the disease to be over.
    • The Chief Minister has no legal right to terminate the SEC’s tenure.
    • The Constitution makes the holder of that post removable only in the same manner as a High Court judge.
    • If courts uphold this means of dislodging the head of an independent election body, it would mark the end of free and fair elections.

    Past judgements on the issue

    • The State government seems to have gone by legal opinion that citedAparmita Prasad Singh vs. State of U.P. (2007).
    • Cessation of term vs. removal: In that judgement the Allahabad High Court ruled that cessation of tenure does not amount to removal, and upheld the State Election Commissioner’s term being cut short.
    • The Supreme Court, while dismissing an appeal against the order, kept open the legal questions arising from the case.

    UPSC can frame the question based on the judgement in case by the SC and its implication for the independence of the body in conducting the fair, free and impartial election.

    Issues arising out of the past judgements

    • The judgment seems erroneous, as it gives freedom to the State government to remove an inconvenient election authority by merely changing the tenure or retirement age.
    • This was surely not what was envisioned by Parliament, which wrote into the Constitution provisions to safeguard the independence of the State Election Commission.
    • It is a well-settled principle in law that what cannot be done directly cannot be done indirectly.
    • Therefore, the removal of an incumbent SEC through the subterfuge of changing the eligibility norms for an appointment may not survive judicial scrutiny.
    • Prohibition on the variation of condition of service: Further, the Constitution, under Article 243K, prohibits the variation of any condition of service to the detriment of any incumbent.
    • Even if the State government argues that a change of tenure does not amount to varying the conditions of service, the new norm can only apply to the successor SEC, and not the one holding the office now.

    Conclusion

    In order to ensure the independence of the SEC and free and fair elections, legality of the move should not pass the legal scrutiny. Even if it passes the legal scrutiny the government should amend this provision avoid such instances in the future.

     

  • What is Open Court System?

    The Supreme Court has invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. It deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.

    What are Open Courts?

    • The Open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.
    • Open courts are normal court where proceedings of the court are conducted where every person is allowed to watch the proceedings of the court.
    • There are instances where it is not practical to accommodate persons other than parties to the proceedings. Therefore, such proceedings are held in camera.
    • This means that the proceedings are held in a closed room where the public will not have access to watch the proceedings.
    • In criminal cases like rape, it is necessary to protect the identity and modesty of the victim.

    Why did the Supreme Court deter Open Court’s norm?

    • A Bench led by CJI said these restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
    • The court made it clear that public health takes precedence over conventions.
    • Every individual and institution is expected to cooperate in the implementation of measures designed to reduce the transmission of the virus.
    • Open court hearings would mean a congregation of large number of people. This would prove detrimental to the fight against the virus.

    Conclusion

    • Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India.
    • The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it..

    Way forward

    • Indian courts have been proactive in embracing advancement in technology in judicial proceedings.
    • Judiciary can bank on video-conferencing technologies in the wake of this unprecedented and extraordinary outbreak of a pandemic.

    Back2Basics

    Article 142 of the Indian Constitution

    • Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
    • It supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
    • The phrase ‘complete justice’ engrafted in Article 142(1) is the word of wide interpretation to meet situations created by legal errors or result of operation of statute law or law.
    • Thus Article 142 is conceived to give the apex court the powers to meet the situations which cannot be effectively tackled by existing provisions of law.

    Also read: 

    Supreme Court Removes Manipur MLA Under The 10th Schedule

  • The SC order on migrants labours raises several issues

    Context

    On March 31, the Supreme Court of India (SC), entertaining a writ petition under Article 32, passed an order which raises more questions than it seeks to answer.

    What were the issues involved in the writ petition?

    • The writ petition was purportedly filed in the public interest, “for redressal of grievances of migrant workers in different parts of the country”.
    • Directions which are in favour of the Union government: The Court has proceeded to issue several directions which are clearly in favour of the respondent, the Union of India.
    • The following three directions were uncalled for:

    What were the directions issued by the Supreme Court?

    • One, that under section 54 of the Disaster Management Act, 2005, persons can be punished with imprisonment, which may extend to one year, or with a fine for making or circulating a false alarm or warning.
    • Disobedience of the order including an advisory by a public servant would result in punishment under section 188 of the IPC.
    • Two, all concerned, that is the state government, public authorities and citizens will faithfully comply with directives, advisory and orders issued by the Union of India in letter and spirit in the interest of public safety.
    • Three, the media should only refer to and publish the official version of the Government of India, publishing a daily bulletin.
    • The SC observations about migrant labourers: After giving substantial reliefs to the Union of India, the SC proceeded to make mere observations about migrant labourers by directing that they should be dealt with “in a humane manner”.
    • And that “trained counsellors, community leaders and volunteers must be engaged along with the police to supervise the welfare activities of migrants”.
    • The SC has virtually absolved the government for its handling of the situation.

    What was the basis for issuing orders and issues with it

    • The basis of the directions is a statement made by the Solicitor General of India and some status reports to the effect that “the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media”.
    • What is an issue with basis? The SC has proceeded on assumptions and surmises which were untested and unchallenged.
    • What the court should have done? In a matter of such seriousness, the least it should have done was to have appointed an amicus curiae (a friend of the court) to assist it rather than simply accept the self-serving status reports and statements made before it.
    • The Court overlooked the fact that in India, hundreds of millions of people work during the day and are paid at the end of the day and then go and buy their foodstuffs.
    • They have no savings, nor do they have foodgrains stored.
    • It is surprising that the Court, the custodian of fundamental rights, should be oblivious to this reality.

    Issue of press freedom

    • Citizens have the right to freedom of speech and expression. Press freedom is a part of this. Citizens have the right to receive information as well.
    • Article 13 (2) of the Constitution says that the state cannot make any law which takes away or abridges the fundamental rights.
    • If Parliament cannot do so, the Supreme Court — the upholder of the constitutional rights — surely cannot do so.
    • The SC has itself held in M Nagraj (2006): “A right becomes a fundamental right because it has foundational value. The fundamental right is a limitation on the power of the State. A Constitution, and in particular that part of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”
    • The SC should not have made all media subservient to the government by directing that the former “refer to and publish the official version about the developments”.
    • Such an order could be justified only during an emergency and that too by the executive, subject to challenge before the courts.

    Conclusion

    The SC has given a carte blanche to the authorities, and citizens appear to have no avenues of redress. Most of all, by condemning the media and social media, holding them responsible for fake news, the SC has done a great disservice to the institution which provides information to citizens and upholds democracy.

  • Ayyappa and the Court

    Context

    In the several cases with potential significance, there was no effective hearing at the interim stages which created fait accompli. And which results in the status quo cementing itself.

    The Sabarimala case and ‘balance of convenience’ principle

    • Review petition pending: Millions of disciples have protested the Court’s 2018 verdict where gender equality was held to trump the tenets of the faith and rejoiced at the November 2019 order of the Chief Justice’s bench granting their cause a fresh lease of life.
    • As things stand, their review petitions are kept pending until the questions of law are determined.
    • Please to enter the temple declined: In December 2019, fervent pleas on behalf of certain women devotees to enter the temple were declined, although the 2018 verdict continued to hold the field.
    • Why declining the plea for entry matters? This was justified by the Court on a “balance of convenience”, thereby laying down a new principle for not directing the implementation of its own judgement.

    Pendency of Article 370 challenge case hearing

    • Nine judge bench: This year it was decided to put together the nine-judge bench to hear the cases on an urgent basis.
    • Kashmir case on the backburner: But with two judges from the ongoing Kashmir/Article 370 challenges also a part of the Sabarimala case, it would mean that the Kashmir issues would be put on the back burner in the middle of its hearing.
    • This is despite the advocates representing the right of women’s entry stating that they had no objection to the Kashmir cases being heard first.
    • Then, barely a day into the hearing, a strain of swine flu reached some of the members of the Bench, leading to a postponement of hearings till the middle of March.
    • Now, with a fierce pandemic enveloping the globe, the case is adjourned indefinitely.

    Criticism of administrative functioning of the SC

    • Over the last few months, the Supreme Court has been besieged by criticism of its administrative functioning.
    • Delay in the hearing of important cases: Cases that have customarily been heard with alacrity, like those concerning personal liberty, law and order and criminal investigation, have been posted after long intervals with the Government being granted the luxury of time to respond.
    • No effective hearing in cases with immediacy: Where immediacy is pre-eminent so that fait accompli may not be created, as with the validity of the Kashmir notifications, the CAA and the electoral bonds, there have been no effective hearings at the interim stage.
    • Thus, the status quo slowly cements itself.

    Reason for problems in administrative functions of the SC

    • Dual role played by the CJI: Since the early years of the judiciary, one person has been given the onerous dual charge of heading both the administrative and judicial functions of the court.
    • As a result, apart from sitting every day, reading briefs, hearing arguments and delivering detailed judgements, the Chief Justice has to also act as the final authority for all service-related matters of the Court’s 2,500 employees, issue office orders to streamline the registry.
    • The CJI also supervise measures for security and infrastructure, chair committees, correspond with and entertain judicial delegations, attend symposia, delegate subject matters among colleagues, constitute benches of varying strengths and interview candidates for the various courts.
    • In the old days, when the burden of cases was modest, these tasks would not have been challenging.
    • But in the present time, not only are they overwhelming, but they also bring in their wake a host of attacks on the person who occupies that high office.

    Need for the Chief Executive Officer in the SC

    • Administrative functioning of the SC: In all the administrative tasks, the Chief Justice is assisted by a team of registrars, who are headed by the secretary-general.
    • As they are junior judicial officers, they neither have the training nor the complete independence to take steps towards course correction.
    • The requirement of CEO: This is why the Supreme Court sorely requires a chief executive officer – an independent professional who is equipped with the day-to-day management of the Court and is not beholden to the judges in any way.
    • How it will help? The CEO will be charged with the entire mission of running the Court so that the judges can concentrate on what they are trained and experienced to do – adjudicate.
    • Operational autonomy: The CEO will, of course, have to be given adequate operational autonomy and be answerable to a committee of the Court, comprising judges and bar representatives, thereby providing for a professional process, much like in the corporate sphere.
    • With this, the judges will at least be spared the charges that they have had to withstand over the last few years.

    Conclusion

    It is only for politicians to concern themselves with public opinion, not for judges. They are weaponised by the Constitution to serve the cause of justice, and in this, as per Article 144, all civil and judicial authorities are enjoined to cooperate. Just a few blows of the gavel to any misadventures would be sufficient to send the message loud and clear: That the Court offers no sanctuary to the executive knaves.

  • Not an unfettered right

    Context

    The UN High Commissioner for Human Rights filed an application seeking to intervene as amicus curiae in the pending litigation in the Supreme Court against the Citizenship (Amendment) Act, 2019.

    What are the implications of intervention?

    • Concern over international attention: That the case has attracted the attention of the international human rights agency is a matter of concern for the Indian government.
    • International law principles: The intervention may enable the Supreme Court to read in public international law principles in determining the constitutionality of CAA.
    • Law on concepts of sovereignty: Ultimately, this would assist in laying down the law on concepts of sovereignty in addition to determining the obligations of a nation-state to the international community at large.

    Why the intervention matters?

    • Basis of the application: The application is based on the belief that the High Commissioner’s intervention will provide the Court “with an overview of the international human rights norms and standards with respect to the state’s obligations to provide international protection to persons at risk of persecution in their countries of origin”.
    • This application stands out for a number of reasons.
    • First, this is a voluntary application rather than at the invitation of the Supreme Court.
    • Second, she accepts that India is a state party and signatory to various international conventions including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Culture Rights which contain important non-discrimination clauses, including on the ground of religion.
    • India’s obligations towards migrants: India is obliged, under international law, to ensure that migrants in its territory or under its jurisdiction receive equal and non-discriminatory treatment regardless of their legal status or the documentations they possess.
    • Locus standi issue raised by India: In response, the External Affairs Ministry argued that “no foreign party has any locus standi on issues pertaining to India’s sovereignty”.
    • The High Commissioner has filed similar amicus curiae briefs on issues of pubic importance before a range of international and national judicial fora.
    • A precedent for future: This intervention, if permitted, would serve as a precedent for a number of future applications. It would also provide an opportunity for the Supreme Court to lay down the law on whether such applications interfere with national sovereignty.

    Sovereignty as responsibility

    • Defining sovereignty: International Court of Justice judge James Crawford defines sovereignty as, among other things, the “capacity to exercise, to the exclusion of other states, state functions on or related to that territory, and includes the capacity to make binding commitments under international law” and states that “such sovereignty is exercisable by the governmental institutions established within the state”.
    • Sovereignty in Indian Constitution: The Preamble to the Constitution lays out the position, wherein the people of India have resolved to constitute the Indian Republic into a sovereign and not just any one authority.
    • As such, the courts (judiciary), the government (executive) and elected legislatures (legislature) are equally sovereign authorities.
    • No one can claim exclusivity over sovereignty. Furthermore, Article 51 (c) of the Constitution directs the state to “foster respect for international law”.

    Responsibility to citizens and the international community

    • Responsibility of political authority: According to the International Commission on Intervention and State Sovereignty, “national political authorities are responsible to the citizens internally and to the international community through the UN”.
    • Constraints on sovereignty: Therefore, it is trite to say that an authority’s right to sovereignty is not unfettered. It is subject to constraints including the responsibility to protect its citizenry and the larger international community.
    • Extending Article 14: Furthermore, Article 14 extends the right to equality to all persons, which is wider than the definition of citizens. Even illegal immigrants shall, consequently, be treated by the government in a manner that ensures equal protection of Indian laws.

    Conclusion

    It is hoped that the Supreme Court will conclude that the intervention is necessary as the Court would benefit from the High Commissioner’s expertise in public international law principles.

  • The Hidayatullah example

    Context

    It has been recently announced that the President has nominated former Chief Justice of India, Ranjan Gogoi, to the Rajya Sabha. However, the time has come for us to ask a difficult question: Should judges stop accepting post-retirement jobs offered by the government, at least for a few years after retiring, because accepting such posts could undermine the independence of the judiciary?

    The issue of post-retirement employment of the judges

    • Retirement age of judges: Unlike federal judges in the US, judges in India do not hold office for life. They remain in office until they reach the retirement age — 65 for Supreme Court judges and 62 for high court judges.
    • Protection against arbitrary removal: These judges do not hold their offices at the “pleasure” of the President. In other words, they cannot be arbitrarily removed by the government once they are appointed, and can only be impeached by a supermajority of both houses of Parliament “on the ground of proved misbehaviour or incapacity”.
    • Difficult impeachment process: The impeachment process is a very difficult one and never in the history of independent India has a judge been impeached, though attempts have sometimes been made to do so. Judges, therefore, enjoy security of tenure while holding office, which is essential for maintaining judicial independence.
    • How retirement of judges could undermine judicial independence? The retirement of judges threatens to undermine judicial independence.
      • This is because some judges — not all — are offered post-retirement employment by the government. It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.

    Not an unprecedented move

    • Former CJI Gogoi is certainly not the first retired judge to be appointed to political office.
    • In 1952, Justice Fazl Ali was appointed the Governor of Orissa, shortly after retiring from the Supreme Court.
    • In 1958, Chief Justice M C Chagla resigned from the Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation.
    • In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest elections for President.
    • In 1983, Justice Baharul Islam resigned from the Supreme Court to contest as a Congress (I) candidate for a Lok Sabha seat, after ruling in favour of Bihar’s Congress (I) chief minister, Jagannath Mishra, in a controversial case where Mishra had been accused of criminal wrongdoing and misuse of office.
    • In more recent times, Chief Justice P Sathasivam was appointed the Governor of Kerala. There are many other such examples.

    Why restrictions about employment were not included in the Constitution?

    • The Constitution provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”.
    • Constituent assembly debate: In the Constituent Assembly, K T Shah, an economist and advocate, suggested that high court and Supreme Court judges should not take up an executive office with the government, “so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge”.
      • However, this suggestion was rejected by B R Ambedkar because he felt that the “judiciary decides cases in which the government has, if at all, the remotest interest, in fact, no interest at all”.
    • Government is the largest litigant in the courts: In Ambedkar’s time, the judiciary was engaged in deciding private disputes and rarely did cases arise between citizens and the government. “Consequently”, said Ambedkar, “the chances of influencing the conduct of a member of the judiciary by the government are very remote”.
      • This reasoning no longer holds today because the government is one of the largest litigants in the courts.

    Question of independence of the judiciary

    • The question of constitutional propriety: In the words of India’s first Attorney General, M C Setalvad, all this raises “a question of constitutional propriety” relating to the independence of the judiciary.
    • After all, could the government not use such tactics to reward judges who decide cases in its favour?
    • Public perception of compromised judiciary: Further, if a judge decides highly controversial and contested cases in favour of the government and then accepts a post-retirement job, even if there is no actual quid pro quo, would this not lead to the public perception that the independence of the judiciary is compromised?

    Law Commission recommendations

    • In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement:
      • Firstly, “chamber practice” (a term which would, today, mean giving opinions to clients and serving as arbitrators in private disputes).
      • Secondly, “employment in important positions under the government”.
    • The Law Commission frowned upon chamber practice but did not recommend its abolition.
    • Ban on post-retirement government employment: It strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts.
      • The Commission’s recommendations were never implemented.

    Conclusion

    It is about time that we start expecting the judges of our constitutional courts to follow CJI Hidayatullah’s excellent example in which he had accepted government job only after the cooling period of several years.

     

     

  • Ruling against judicial transparency

    Context

    A recent Supreme Court verdict has barred citizens from accessing court records under the RTI Act.

    What does the judgement say?

    • No access to court records through RTI: In its recent decision, in the Chief Information Commissioner v. High Court of Gujarat case, the Supreme Court, regrettably, barred citizens from securing access to court records under the Right to Information (RTI) Act.
    • Access to record through rules of High Courts: Instead, the court held that such records can be accessed only through the rules laid down by each High Court under Article 225 of the Constitution.
      • The Registry of the Supreme Court was litigating a similar case (Registrar, Supreme Court of India v. R.S. Misra) before the Delhi High Court for several years.
    • Separating the administrative and judicial side: Though the particular decision taken earlier this month does not preclude the application of the RTI Act to the administrative side of the court, it does firmly slam the door shut on accessing, under the RTI Act, the millions of court records filed on the judicial side.

    Why access to judicial records matters?

    • For holding the police accountable: A significant number of decisions taken by the courts influence our daily life. Every prosecution before a criminal court is essentially an opportunity to hold the police accountable just as every writ petition is an opportunity to hold the government accountable.
    • Opportunity to learn about commercial translations: A significant number of commercial lawsuits are opportunities to learn more about corporations and the manner in which commercial translations are executed in the country.
    • Policy decision impacted by the judiciary in PIL: In cases of public interest litigation, where the courts indulge in policymaking on the basis of the report of an amicus curiae or an expert committee set up by judges.
      • The reports of these committees are not accessible to third parties, though they may be impacted by these decisions, because they form part of the court record and are hence outside the purview of the RTI Act.
    • No question of confidentiality: There is no question of arguing for the confidentiality of these records because it is by now a well-recognised principle that all judicial proceedings must take place in open court, unless prohibited by law for reasonable purposes.

    The overriding section of RTI act- Section 22

    • The Supreme Court’s verdict in this case hinged on Section 22 of the RTI Act which states that the RTI Act shall override any other law to the extent that the latter is inconsistent with the former.
    • The Section states: “Act to have an overriding effect — The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
    • Non-obstante clause: A clause such as Section 22 is known as non-obstante clause and is a common drafting device used by legislatures to permit certain actions regardless of what is mentioned in existing legislation.
    • Drafters aware of the possible conflict: The wording of the provision reveals that the drafters of the RTI Act were clearly aware that it may conflict with other laws and wanted to ensure that the procedure under the Act overruled the procedure in existing legislation.
      • Despite this crystal-clear wording of Section 22, the Supreme Court and, on previous occasions, the High Courts, have concluded exactly the opposite.

    Three steps to the courts reasoning 

    • No inconsistency: It concludes that there is no inconsistency between the RTI Act and the court rules.
      • This is factually incorrect because the Gujarat High Court Rules unlike the RTI Act require the submission of an affidavit stating the purpose of seeking copies of the pleadings.
      • The RTI Act requires no reasons to be provided while seeking information.
    • Issue over non-obstante clause: The court argues that “A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause unless there is a clear inconsistency between the two legislations.”
      • But that is exactly the point of an non-obstante clause.
      • The accompanying factual inaccuracy, is its conclusion that there is no inconsistency between the Gujarat High Court rules and the RTI Act.
    • Section 22 can’t be read to imply repeal of the laws: The third limb, of the court’s reasoning was its conclusion that Section 22 could not be read in a manner to imply repeal of other laws, such as the Gujarat High Court Rules.
      • The court states that if the intention was to repeal another law, the legislature would have specifically stated so in the RTI Act, as was done in Section 31 when the RTI Act repealed the previous Freedom of Information Act, 2002.
      • This reasoning is bewildering because it would render non-obstante clauses entirely useless.

    What is the issue arising out of this judgement?

    • From a citizen’s perspective, this decision is problematic for two reasons.
      • Not all High Courts allow access to all: Most High Court Rules allow only parties to a legal proceeding to access the records of a case. Some High Courts may allow third parties to access court records if they can justify their request.
      • This is entirely unlike the RTI Act, where no reasons are required to be provided thereby vastly reducing the possibility of administrative discretion.
      • Logistical difficulties: The second reason this judgment spells bad news is that unlike the RTI Act, the procedure under the Rules of most High Courts is challenging from a logistical perspective, apart from lacking in any significant safeguards.
      • An application under the RTI Act can be made by post, with the fee being deposited through a postal order.
      • The procedure is simple enough to enable most citizens to file RTI applications by themselves.
      • Not so for the procedure under the High Court Rules.
      • Most courts require the physical filing of an application: Most High Courts and the Supreme Court require the physical filing of an application with the Registry, and a hearing before a judge to determine whether records should be given.

    Conclusion

    The Supreme Court fails to understand that the judiciary’s track record of transparency is vastly inferior when compared to other arms of the state. In today’s world where every public institution is striving to become more transparent, the continued resistance from the judiciary to making itself transparent in a meaningful manner will have an eroding effect on its legitimacy.

  • Right of an accused to be defended

     

     

    Recently the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court.  This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.

    What does the Constitution say about the right of an accused to be defended?

    • Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice.
    • Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
    • Article 39A, part of the DPSP, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.

    What has the Supreme Court said about such resolutions by bar associations?

    • The Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792.
    • Thomas Erskine, Attorney General for the Prince of Wales, was warned of dismissal if he defended Paine, but still took up the brief, saying: “… If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge…”
    • The Supreme Court cited other historical examples of accused being defended — revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war criminals at the Nuremberg trials.

    A matter of professional ethics

    • The Supreme Court ruled that such resolutions are wholly illegal, against all traditions of the bar and against professional ethics.
    • Every person however wicked, criminal, perverted or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly and it is the duty of the lawyer to defend him.
    • It said such resolutions were against all norms of the Constitution, the statute and professional ethics, called these a disgrace to the legal community, and declared them null and void.

    How are the professional ethics of lawyers defined?

    • The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act.
    • An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case.
    • The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”.
    • Last year, The Uttarakhand HC clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.

  • When a court pronounces a verdict, without giving reasons

    Context

    In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.

    Departure from norms

    • The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, is self-evident.
      • Its importance cannot be overstated and this curious departure from the norm merits close analysis.
    • Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of the order.
      • The SC has often chastised subordinate institutions for their failure to supplement their orders with reasons.

    Importance of ‘reasoned decision’

    • The juristic basis for the ‘reasoned decision’: The juristic basis for this has also been explored in a number of cases.
    • In various decisions, the court has ruled that speaking orders promote-
      • Judicial accountability and transparency.
      • Inspire public confidence in the administration of justice; and
      • Introduce clarity and minimise the chances of arbitrariness.
    • Quotes from various judgements: In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”.
    • The Madhya Pradesh Industries Ltd case: In this case Justice Subba Rao K. stated:
      • “The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness;”
      • “… it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bound… Speaking order will at its best be reasonable and at its worst be at least a plausible one.”

    Devaluation by the SC and implications

    • Implicit rules: The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013.
      • According to settled decisions, the same signifies “judicial determination by reasoned order”.
    • However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons.
      • The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst.
    • Undermining integrity: Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.

    Culture of justification

    • The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Joharand Joseph Shine).
      • The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions.
    • From authority to justification: For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”.
    • Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.

    Conclusion

    In light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.

     

     

     

  • [pib] International Judicial Conference, New Delhi

    The President of India delivered the valedictory address at the International Judicial Conference being organised by the Supreme Court of India, in New Delhi.

    About the Conference

    • The Conference was organized by the Supreme Court of India.
    • The theme of the Conference was ‘Judiciary and the Changing World’.

    Important Topics of discussion at the Conference included :

    1. Gender Justice,
    2. Contemporary Perspectives on Protection of Constitutional Values,
    3. Dynamic Interpretations of the Constitution in a Changing World,
    4. Harmonization of Environment Protection vis-à-vis Sustainable Development and
    5. Protection of Right to Privacy in the Internet Age

    Other excerpts:

     “Just-World” Hypothesis

    • The “Just World” fallacy is associated with the actions of bringing fair actions towards education, health, gender equality and other social issues.
    • The Conference introduced the “Just World” concept in the Judicial System of India.
    • By this it aims to take the judicial system of the country to every citizen irrespective of their gender.
    • Also, it aimed to bring upon gender equality in other crucial areas where women have still not earned their recognition, especially the areas of mining and military.