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Subject: Polity

  • 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.

  • Giving Human Rights Commissions more teeth

    Context

    The Madras High Court is to decide on whether the recommendations made by such panels are binding upon the state.

    A fourth branch institution

    • Enactment of the Act and its purpose: In 1993, the Indian Parliament enacted the Protection of Human Rights Act.
      • Purpose: The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution.
      • To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States.
    • What is fourth branch institution: The National and State Human Rights Commissions are examples of what we now call “fourth branch institutions.”
      • According to the classical account, democracy is sustained through a distribution of power between three “branches” — the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others.
      • The necessity of independent bodies: The complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight.
      • Some of these bodies are constitutional bodies — established by the Constitution itself. These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General.
      • Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.
    • HRC under scrutiny and criticism: In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions have come under scrutiny and criticism.
      • There have been the usual critiques of the politicization of autonomous bodies, and selectiveness.
      • Toothless: Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.

    Limitations of NHRC

    • NHRC’s recommendations are not binding
    • NHRC cannot penalize authorities who do not implement its orders
    • JK is out of its jurisdiction
    • NHRC jurisdiction does not cover human right violations by private parties
    • 3/5 are judges, leading to more judicial touch to its functioning
    • 2/5 are also not Human rights experts. Political appointments.
    • Time limit is set to 1 year i.e. NHRC cannot entertain ca case older than 1 year
    • Limited jurisdiction over violation by armed forces
    • The act does not extend to J&K
    • Vacancies are not filled on time. Most human rights commissions are functioning with less than the prescribed Members
    • Fund crunch
    • Overload and backlog. Too many complaints. Hence, in recent days, NHRC is finding it difficult to address the increasing number of complaints
    • Bureaucratic style of functioning
     

    What the case before Madras High Court will decide?

    • Whether recommendations are mandatory or not: A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.
    • What are the power of HRC under the act? Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative.
      • Powers of civil courts: While conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on.
      • These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.
    • Issue over the meaning of recommend: The controversy before the Madras High Court stems from the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated.
      • Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps.
      • The key question revolves around the meaning of the word “recommend.”
    • Opposite conclusion by different benches: The Full Bench of the Madras High Court is hearing the case because different, smaller benches, have come to opposite conclusions about how to understand the word “recommend” in the context of the Protection of Human Rights Act.
      • According to one set of judgments, this word needs to be taken in its ordinary sense. To “recommend” means to “put forward” or to “suggest” something or someone as being suitable for some purpose.
      • Ordinarily, a mere “suggestion” is not binding. Furthermore, Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission”, within a period of one month.
      • The argument, therefore, is that this is the only obligation upon the government.
      • If indeed the Act intended to make the recommendations of the Commission binding upon the government, it would have said so: it would not simply have required the government to communicate what action it intended to take to the Commission (presumably, a category that includes “no action” as well).

    Why ordinary meaning of recommend needs to be rejected?

    • Argument against the ordinary meaning of “recommend”
      • Ordinary meaning and meaning within the legal framework: The first is that there is often a gap between the ordinary meanings of words and the meanings that they have within legal frameworks.
      • Legal meaning: Legal meaning is a function of context, and often, the purpose of the statute within which a word occurs has a strong influence on how it is to be understood.
      • For example, the Supreme Court has held, in the past, that the overriding imperative of maintaining judicial independence mandates that “consultation” with the Chief Justice for judicial appointments (as set out under the Constitution) be read as “concurrence” of the Chief Justice (this is the basis for the collegium system).
      • Recently, while interpreting the Land Acquisition Act, the apex court held that the word “and” in a provision had to be construed as “or”.
      • Of course, there needs to be a good reason for interpretations of this kind.
    • Constitutional commitment: This brings us to the purpose of the Human Rights Act, and the importance of fourth branch institutions.
    • Ensure adequate realisation of constitutional commitment: As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights.
      • To fulfil this purpose, the Act creates an institutional infrastructure, via the Human Rights Commissions.
      • The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights.
    • Leaving decision with the state would defeat the purpose of the act: It stands to reason that if the state was left free to obey or disobey the findings of the Commission, this constitutional role would be effectively pointless, as whatever the Human Rights Commission did, the final judgment call on whether or not to comply with its commitments under the Constitution would be left to the state authorities.
      • This, it is clear, would defeat the entire purpose of the Act.
    • Past precedents: Indeed, in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity.
      • For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation; various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so.
      • It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role those fourth branch institutions are expected to play in the constitutional scheme is significant.
    • Powers of civil courts: And lastly, as pointed out above, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings. This provides strong reasons for its findings to be treated — at the very least — as quasi-judicial, and binding upon the state (unless challenged).
      • Indeed, very recently, the Supreme Court held as much in the context of “opinions” rendered by the Foreigners Tribunals, using very similar logic to say that these “opinions” were binding.

    Conclusion

    The crucial role played by a Human Rights Commission — and the requirement of state accountability in a democracy committed to a ‘culture of justification’ — strongly indicates that the Commission’s recommendations should be binding upon the state. Which way the Madras High Court holds will have a crucial impact upon the future of human rights protection in India.

  • Supreme Court Removes Manipur MLA Under The 10th Schedule

    The Supreme Court has removed a Minister against whom disqualification petitions were pending before the Speaker since 2017.

    • The court invoked its discretionary powers under Art. 142 of the Indian Constitution.

    What is Article 142?

    • Article 142 of the Constitution empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Any decree so passed or orders so made shall be enforceable throughout the territory of India.
    • The phrase ‘necessary for doing complete justice’ encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome.
    • The power under Article 142 can be exercised when the SC has to decide difficult cases where adequate laws may not exist, or existing laws may not be adequate, in order to deliver complete justice.

    Scope and limitations

    • Supreme Court in State of Punjab v Rafiq Masih (2014) has opined that- Article 142 of the Constitution of India is supplementary in nature and cannot supersede the substantive provisions, though they are not limited by the substantive provisions in the statute”.
    • Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature.
    • In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the court invoked Article 142.

  • What are Supplementary Grants?

    Supplementary Grants

    Lok Sabha recently held voting on supplementary demands for grants for Jammu and Kashmir and passed the proposals on voice vote.

    What are Supplementary Grants?

    • The additional grant required to meet the required expenditure of the government is called Supplementary Grants.
    • When grants, authorised by the Parliament, fall short of the required expenditure, an estimate is presented before the Parliament for Supplementary or Additional grants.
    • These grants are presented and passed by the Parliament before the end of the financial year.
    • When actual expenditure incurred exceeds the approved grants of the Parliament, the Ministry of Finance and Ministry of Railways presents a Demand for Excess Grant.

    How it works?

    • The Comptroller and Auditor General of India bring such excesses to the notice of the Parliament.
    • The Public Accounts Committee examines these excesses and gives recommendations to the Parliament.
    • The Demand for Excess Grants is made after the actual expenditure is incurred and is presented to the Parliament after the end of the financial year in which the expenses were made.

  • 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.

     

     

  • Nominated members of Rajya Sabha

    Former CJI Ranjan Gogoi has been nominated as a member of Rajya Sabha.

    Nominated members in RS

    • As per the Fourth Schedule to the Constitution of India on 26 January 1950, the Rajya Sabha was to consist of 216 members of which 12 members were to be nominated by the President and the remaining 204 elected to represent the States.
    • The present strength, however, is 245 members of whom 233 are representatives of the states and union territories and 12 are nominated by the President.
    • The Rajya Sabha is not subject to dissolution; one-third of its members retire every second year.
    • The 12 nominated members of the Rajya Sabha are persons who are eminent in particular fields, and are well known contributors in the particular field.
    • The nominated members are usually amongst persons having special knowledge or practical experience in literature, science, art and social service.

    Constitutional provisions

    • 80(1)(a) of Constitution of India makes provision for the nomination of 12 members to the Rajya Sabha by the President of India in accordance with provisions of Arts.80(3).
    • 80(3) says that the persons to be nominated as members must be possessing special knowledge or practical experience in respect of such matters as the following namely : Literature, science, art and social service.

    Earlier CJIs in other Offices

    • Justice Hidayatullah was appointed vice-president nine years after his tenure as CJI ended (1979).
    • Justice Ranganath Mishra was appointed six years after his retirement (1998).
    • Justice Bahraul Islam served as a member of the Rajya Sabha several years before he was elevated to the SC (1983).
    • Justice Subba Rao, who contested for the post of president (and lost to Zakir Hussain) was roundly criticised for the decision at that time.

    Issues with CJI’s appointment

    • Late Arun Jaitley cautioned, in 2012, that “pre-retirement judgments are influenced by a desire for a post-retirement job”. Perhaps, those words were never more relevant than they are today.
    • The immediacy and hurried nature of the present appointment, barely four months after Justice Gogoi retired, is bound to give rise to questions about its context.
    • It was a tenure that inspired much scrutiny; a tenure which saw the repeated use of sealed envelopes, the contents of which were known only to the government; a tenure which recorded a significant and frequent number of judgments in favour of the executive.

    What were the alternatives?

    • Several appointments to administrative bodies require a cooling-off period for individuals so as to eliminate the possibility or suspicion of a conflict of interest or quid pro quo.
    • Officials who retire from sensitive positions are barred from accepting any other appointment for a period of time, normally two years.
    • These cooling-off periods in posts are premised on the snapping off of the nexus between previous incumbency and new appointment by the interposition of a sufficient time gap.

  • Speaker vs Governor Tussle

    With the Supreme Court set to hear on a plea seeking a directive to the government in Madhya Pradesh to take a floor test “within 12 hours”, the spotlight is back on the legal debate on the powers of the Governor and the Speaker under the Constitution.

    Primacy to Floor Test

    • Since 2014, the legal-political tussle between the Governor and Speaker has prompted the Supreme Court’s intervention in three major instances — in the Arunachal Pradesh and Uttarakhand cases in 2016 and in the Karnataka case in 2019.
    • In all three cases, the court emphasised the primacy of the floor test.
    • In the Arunachal and Uttarakhand cases, the House was in suspended animation as President’s Rule had been imposed.
    • The Supreme Court ordered that the House be summoned and a floor test held to end the impasse.
    • But Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature.

    Earlier instances

    • Earlier, the Sarkaria Commission had recommended that, if the CM neglects or refuses to summon the Assembly for a floor test, the Governor should summon the Assembly.
    • If the House is adjourned sine die or prorogued without holding a floor test, then all options are open before the Governor.
    • However, when the House is in session, the question of whether the court can direct the Speaker to hold a floor test is yet to be settled.
    • In 1998, in the Jagadambika Pal case, the SC had ordered a composite floor test when the House was in session.
    • However, in that case, there were two claimants to the chief minister’s post.

  • 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.

  • Role of Lieutenant Governor

    The Madras High Court has held that the role of Puducherry’s Lieutenant Governor and that of an elected government in the UT were intertwined as per law, and therefore they were expected to act in unison and not in division.

    What did the court rule?

    • The government headed by the CM and the Administrator/Lieutenant Governor of Puducherry shall work in unison and not in division.
    • The Madras HC set aside a single bench judgment that had held that the Lieutenant Governor (LG) does not have the right to interfere in the daily affairs of the elected government of Puducherry.
    • The HC has held that the Administrator is bound by the aid and advice of the Council of Ministers in matters where the Legislative Assembly is competent to enact laws.
    • This power of Assembly is contemplated under Section 44 of the Government of Union Territories Act, 1962.

    How is Puducherry different from other UTs?

    • UT of Puducherry is headed by the Lieutenant Governor of Puducherry as its nominal head, with a democratically elected CM as real head of the executive.
    • Other union territories don’t have an elected government and legislative assembly.
    • Puducherry, National Capital Territory of Delhi and Jammu and Kashmir (newly formed UT) are the three territories which have democratically elected governments like Indian states.
    • The State legislatures were a creation of the Constitution, whereas the UT legislatures were created under a law such as the Government of UTs Act, 1963.
    • The constitutional provisions, the 1963 Act as well as the Rules of Business of the Government of Puducherry lay expect the Lieutenant Governor to act as a bridge between the local government and the Centre.
    • The Administrator is expected to play the role of an umpire whenever there was a disagreement between the Lieutenant Governor and the Council of Ministers.

  • 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.