Showing posts with label Supreme Court of India. Show all posts
Showing posts with label Supreme Court of India. Show all posts

Friday, May 11, 2018

SC stays verdict on pleas challenging validity of Aadhaar: Top 5 points

A five-judge constitution bench of the Supreme Court headed by Chief Justice of India (CJI) Dipak Misra on Thursday reserved its judgement on the Aadhaar matter. Several appeals were filed challenging the constitutional validity of Aadhaar. Supreme Court judge Justice D Y Chandrachud, while hearing the petitions challenging the Aadhaar scheme's constitutional validity, on Wednesday recalled a personal experience of how his mother, who was suffering from Alzheimer's disease, had faced difficulty in authentication to get her pension.
Justice Chandrachud is part of the five-judge Constitution Bench, headed by Chief Justice of India Dipak Misra, which is hearing a batch of petitions challenging the constitutional validity of the Aadhaar scheme and its enabling law of 2016.

A battery of lawyers including Attorney General K K Venugopal, who represented the Centre and senior advocates like Kapil Sibal, P Chidambaram, Rakesh Dwivedi, Shyam Divan, Arvind Datar, Rakesh Dwivedi had appeared for various parties.
The constitution bench also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.
During the arguments spread over four months, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.
However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
Former Karnataka High Court judge Justice K S Puttaswamy and other petitioners had challenged the constitutional validity of Aadhaar.
The court had also not agreed with the government's contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds came from the Consolidated Fund of India.
On May 3, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it. However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
The petitioners had referred to the technical experts' views on the technical aspect of the Aadhaar architecture and said that real-time surveillance of citizens was possible.
Earlier, the court also did not agree with the government's contention that the was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds come from the Consolidated Fund of India.
1) SC reserves judgement on pleas challenging Aadhaar: The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging the constitutional validity of Aadhaar and its enabling 2016 law.
A five-judge headed by Chief Justice directed all the parties concerned to file their written submissions to put forth their case.
The judgement was reserved after a marathon hearing which went on for 38 days spanning four months.
2) Justice Chandrachud's mother had to authenticate ID every month for her pension:failures could create problems for those in need and some solution had to be found to address the issue, said the Bench, also comprising Justices A K Sikri, A M Khanwilkar, and Ashok Bhushan. Recalling his experience, Justice Chandrachud said "my mother, who was suffering from Alzheimer's disease was entitled to family pension being the wife of a former Chief Justice of India (late Justice Y V Chandrachud)".
"She had to give a for authentication.

I recall, every month the bank manager or his representative would come home and affix her thumb print on certain documents and only then could she get the pension," Justice Chandrachud said. "So it (authentication) is a serious issue. It's not largesse. It is not charity... we have to find answers for these problems," he said, adding that there was a class of needy people who may not get the benefits due to authentication failures.
3) Senior advocate says 90-year-old woman who is unwell being threatened by bank over Aadhaar: The apex court judge was responding to the arguments of senior advocate Shyam Divan, appearing for former High Court judge Justice (Retd) K S Puttaswamy, who said a 90-year-old woman suffering from various ailments is being threatened that her bank account could be closed for non-authentication by Aadhaar.
Divan said that through that bank account, she was getting her pension and she uses that money for her treatment as she has no one else to look after her.
"There are numerous cases where the failures of the elderly, people suffering from any disease or physical disability, leads to to those otherwise entitled to it," Diwan said.
He said in many villages, young people have now migrated to cities or nearby towns and only the elderly residing there were dependent on their pension or other grants. But due to failure, they were not getting the benefits.

4) Senior advocate tries to poke holes in World Bank report praising Aadhaar: Divan sought to assail a World Bank report which had praised the Aadhaar project and which was relied upon by the government to bolster its case for the 12-digit unique identification number. He said the World Bank had partnered with a private entity for preparing the report titled 'Identification for Development'.
Divan claimed that the same private entity was also the company with which had partnered to facilitate Aadhaar.

5) Advocate Divan says Aadhaar authentication should not be made compulsory for certain schemes: Divan told the apex court that there were 144 notifications issued by various ministries and departments of the government which covered 252 schemes. The senior lawyer concluded his rejoinder arguments saying that essential government schemes that apply to children or relate to citizen's rehabilitation, food, health, and nutrition should be excluded from the requirement of Aadhaar authentication.

Thursday, June 15, 2017

Supreme Court of India's on Aadhar PAN Link

1.    The Hon’ble Supreme Court of India in its Landmark Judgement has upheld Section139AA of the Income Tax Act,1961 as constitutionally valid which required quoting of the Aadhaar number in  applying for  PAN as well as for filing  of income tax returns.

2.    The Hon’ble Court also held that the “Parliament was fully competent to enact Section 139AA of the Act and its authority to make this law was not diluted by the orders of this Court.” Therefore, no violation of the earlier Supreme Court orders were found in enacting the provision.

3.    The Hon’ble Court has also held that Section 139AA of the Act is not discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution.
4.    Section 139AA is also not violative of Article 19(1)(g) of the Constitution in so far as it mandates giving of Aadhaar number for applying PAN and in the income tax returns and linking PAN  with Aadhaar number. 
5.    Section 139AA(1) of the Income Tax Act,1961 as introduced  by the Finance Act, 2017 provides for mandatory quoting of Aadhaar/Enrolment ID of Aadhaar application form, for filing of return of income and for making an application for allotment of PAN with effect from 1st July, 2017.

6.    Section 139AA(2) of the Income Tax Act,1961 provides that every person who has been allotted PAN as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar, shall intimate his Aadhaar on or before a date to be notified by the Central Government. The proviso to section 139AA (2) provides that in case of non-intimation of Aadhaar, the PAN allotted to the person shall be deemed to be invalid from a date to be notified by the Central Government.

7.    The Hon’ble Supreme Court has upheld Section 139AA(1) which mandatorily requires quoting of Aadhaar for new PAN applications as well as for filing of returns.

8.    The Hon’ble Supreme Court has also upheld Section 139AA(2) which requires that the Aadhaar number must be intimated to the prescribed authority for the purpose of linking with PAN.

         9.    It is only the proviso to Section 139AA(2) where the Supreme Court has granted a partial stay for the time being pending resolution of the other cases before the larger bench of the Supreme Court. The Hon’ble  Supreme Court has unequivocally stated as follows:
      “125. Having said so, it becomes clear from the aforesaid discussion that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number.  This is the stipulation of sub-section (1) of Section 139AA, which we have already upheld.  At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary.  Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act.  Those who still want to enrol are free to do so.  However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.  It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.  We are adopting this course of action for more than one reason.  We are saying so because of very severe consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act.  A person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till the Constitution Bench authoritatively determines the argument of Article 21 of the Constitution.  Since we are adopting this course of action, in the interregnum, it would be permissible for the Parliament to consider as to whether there is a need to tone down the effect of the said proviso by limiting the consequences.”
10.  Finally the effect of the judgement is as following 
   (i)     From July 1, 2017 onwards, every person eligible to obtain Aadhaar must quote their Aadhaar number or their Aadhaar Enrolment ID number for filing of Income Tax Returns as well as for applications for PAN;
 (ii)  Everyone who has been allotted permanent account number as on the 1st day of July, 2017, and who has Aadhaar number or  is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to  income tax authorities for the purpose of linking PAN with Aadhaar;
 (iii) However, for non-compliance of the above point No.(ii), only a partial relief  by the Court has been given to those who do not have Aadhaar and who do not wish to obtain Aadhaar for the time being, that their PAN will not be cancelled  so  that other consequences under the Income Tax Act for failing to quote PAN may not arise.

Tuesday, January 10, 2017

Criminal Defamation law not unconstitutional

In the Year 2016, Supreme Court in Subramanian Swamy vs. Union of India upheld the Constitutional Validity of Sections 499 to 502[ [Chapter XXI]] of Indian Penal Code relating to Criminal Defamation. The Bench comprising of Justices Dipak Misra and PC. Pant held that the right to Life under Article 21 includes right to reputation. The Bench has dismissed the Petitions filed by Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal challenging the law relating to Criminal Defamation in India.

Making it clear that criminal defamation law will remain the statute book, the bench said “reputations cannot be allowed to be sullied on the anvils of free speech as free speech is not absolute. Rght to life and freedom of speech have to be mutually respected.”

Dismissing the Petitions the Bench held as follows;

“In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with law”.

The court also reminded the petitioners about the reasonable restriction in the Freedom of speech and expression.

Challenging constitutional validity of criminal defamation law the three leaders contended that rather than protecting individual reputation, these sections have a chilling effect on free speech. All of them argued that the penal provisions conceived in the British era are now “outmoded” and inconsistent with the right to freedom of speech and expression. The decision meant that the defamation cases against the three leaders will be revived and they must contest it in the lower courts. Earlier the SC had stayed them. The court gave the three political leaders 8 weeks time to challenge the pending criminal defamation case against them in respective HCs or face trial.

The SC has in fact upheld each of Centre’s arguments in support of the criminal defamation law Justifying the penal provisions, Centre had said there will be anarchy in the society and everyone will think he has a right to hurl abuses if the criminal defamation is repealed as a penal offence Arguing for retention of criminal defamation in the Indian Penal Code , Attorney General Mukul Rohatgi had said that punitive provisions are more relevant in modern times in view of the wide sweep of Internet and social media where every statement can reach millions of people.

Upload FIRs in Police Websites

The Supreme Court directed that the copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and le appropriate application before the Court as per law for redressal of his grievances. The Bench clarified that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location.

Friday, January 6, 2017

Justice Markandey Katju Submits Apology In Supreme Court Over Post Criticising Soumya Verdict

With an unconditional apology, former Supreme Court judge Markandey Katju today extricated himself from a contempt case over a blog post in which he had sharply criticised the court's verdict in the 2011 rape and murder of 23-year-old Soumya in Kerala.
The Supreme Court accepted Justice Katju's apology and closed the case.

In a Facebook post, the outspoken former judge had commented that the Supreme Court had seriously "erred in law" by reducing the sentence of the convict in the Soumya case.

The Supreme Court described the post as "a serious assault on judges, not on judgements" and initiated a contempt case.

"I don't bother," Justice Katju declared in the courtroom during a hearing. The judges then asked for him to be escorted out of the court.

Justice Katju said in an affidavit today that he respects judicial proceedings and the judiciary.

Soumya, an employee of a Kochi shopping mall, was assaulted by Govindachamy, a serial offender in an empty ladies' coach of Ernakulam-Shoranur passenger train on February 1, 2011.

Govindachamy grabbed her by the hair and hit her head repeatedly against the wall of the coach. After she was thrown off the moving train, he jumped after her, hit her with a stone and raped her in her wounded state.
She died five days after the savage attack.
Govindachamy was sentenced to death by a trial court and the order was confirmed by the high court in 2013. In September, the Supreme Court cancelled Govindachamy's death sentence saying there was no evidence that he had caused Soumya's death or had intended to kill her.

In November, the top court dismissed petitions to review its judgment

Commenting that there had been a "gross error of judgement", Justice Katju wrote that the court had relied on hearsay.

Friday, December 23, 2016

Supreme Court rejects HC ruling: No sovereignty for J-K outside Constitution of India

Snubbing the Jammu and Kashmir High Court for asserting the state’s “sovereignty” and “sovereign powers”, the Supreme Court Friday said J&K “has no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India.

“It is clear that the state of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India… they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir,” the bench said, referring to the preamble of the Constitution of J&K, 1957.

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. “It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment,” the judges said.

The bench also clarified that J&K residents are “first and foremost” Indian citizens. “It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India… permanent residents of the state of J&K are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world,” it said.

The top court pointed out that it was constrained to observe these because in at least three places, the High Court, in its judgment, “has gone out of its way to refer to a sovereignty which does not exist”.

Underlining that the quasi-federal structure of the Constitution of India continues even with respect to J&K, the bench said: “Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India.” It said the J&K Constitution has been made to further define the existing relationship of the state with the Union of India as an integral part thereof.

The court said this while deciding a legal question on whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) will be applicable to J&K or the law was outside the legislative competence of Parliament since its provisions would collide with Section 140 of the Transfer of Property Act of J&K.

SARFAESI Act entitles banks to enforce their security interest outside the court’s process by moving a tribunal to take possession of secured assets of the borrower and sell them outside the court process. The High Court had said that the state has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.

After the State Bank of India appealed against the High Court order, the J&K government submitted in the Supreme Court that this law encroached upon the property rights of permanent residents of the state and must be read down so that it will not be permissible to sell property belonging to a permanent resident of the state to outsiders. It was also argued that Parliamentary legislation would need concurrence of the J&K government before it could apply to the state under Article 370.

But the Supreme Court bench shot down these arguments, saying SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is relatable to a subject under the Union List and parliamentary legislation did not require concurrence of the state government since the Centre had power to make law on this subject.

“Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking… the Act as a whole would necessarily operate in the state,” the bench said, adding that the SARFAESI Act had itself made a special provision for sale of properties in J&K.

The bench, however, made it clear that any provision of the J&K Transfer of Property Act will have to give way to the central law in case the former is found repugnant. “It is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law,” it said, adding that its judgement had no effect on Article 35A, which confers on permanent residents of J&K special rights and privileges regarding acquisition of immovable property in the state.

Thursday, December 8, 2016

Supreme Court Orders Facebook, Google, Microsoft To Block Rape Videos Circulating On Their Platforms

There is an evil side to social media as well, the one which we sometimes conveniently ignore or refuse to accept its existence. But, that evil is lurking around, choosing its next victim online.

One such evil is the circulation of rape videos on various social media platforms. Videos of sexual exploitation and rape are actually sold in large numbers in states like UP, Bihar, Rajasthan for as low as Rs 50. Shady dealers from rural hinterland acquire these videos, and make a business out of that.

And as per reports, these dealers acquire such sick videos from social media portals like Youtube and Dailymotion. And once a customer buys this video, it is again been re-circulated on the social media via WhatsApp, Facebook and the trauma of the victim continues.

Understanding the gravity of the situation, Supreme Court has ordered Facebook, Google, Microsoft to immediately place a ban on these videos.

A bench headed by Justice Madan B Lokur said, “The social media which is used to circulate the explicit clips should also be called in to ascertain their view as to how this can be curbed. We are issuing notice”,

This order was passed to Additional Solicitor General Maninder Singh.

Representing Govt. of India, Additional Solicitor will now issue notices to these social media portals and ask them to devise methods which can stop the sharing and viewing of these videos.

Why Supreme Court Intervened?

The Bench was hearing a PIL filed by Sunitha Krishnan who had initiated the popular #ShameTheRapistCampaign. Under this campaign, she received rape videos of more than 200 victims, which are being shamelessly shared across social media platforms, and instead of damaging the ‘reputation’ of the rapists, is destroying the life of the victims.
After her campaign, Govt. instructed CBI to investigate these videos, and book the culprits – both the rapists and those who are buying such videos and then circulating them on social media.

Interestingly, last month, the Court asked whether social media portals can held accountable and declared as accused in this case? This observation was made because these social media portals are the mediums through which such videos propagate, and if they are declared as accused along with the rapists and buyers of such videos, then it can turn out to be an interesting legal case study.

Analysts are saying that social media portals are mere platforms for sharing content, and hence, they cannot be held responsible for the type of the content. But yes, they can certainly block some specific type of content, if it harnesses evil and hatred.

Taking actual data from National Crime Record Bureau statistics, the apex court has asked the Centre to point out measures taken by the Govt. to stop cyber crimes against women and children.

As per arguments made by the Centre, it was revealed that Home Ministry has established exclusive Indian Cyber Crime Coordination Centre, which will work to stop such cyber crimes, including sharing of rape videos.

A statement from the Home Ministry said, “In order to tackle cyber crimes comprehensively, MHA has already set up an expert committee to recommend a roadmap for tackling the menace,”

Tuesday, December 6, 2016

India’s Supreme Court Says Movie Goers Must Listen to National Anthem Before Screenings

India’s millions of Bollywood-mad movie goers will soon start a trip to the cinema with a mandatory dose of patriotism.
The country’s Supreme Court said in an order Wednesday that all movie theaters should play the national anthem with an image of the Indian tricolor on the screen before the start of any feature film. All those present in the hall “are obliged to stand up to show respect,”
The national anthem has long has been played in theaters in a few Indian states including Maharashtra, home to Mumbai where the Bollywood movie industry is based, but this is the first time that the apex court has given an order making it mandatory in all cinemas across the country.
The court’s ruling comes at a time when patriotism is in the headlines as Prime Minister Narendra Modi tries to rally the diverse nation behind him to fight corruption, untaxed money, and terrorism.
“Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to national anthem which is the symbol of the constitutional patriotism,” the two-judge bench’s order said, invoking India’s constitution, which says respecting the national anthem is one of the fundamental duties of every Indian citizen.
The court said it had issued the directives “for love and respect for the motherland is reflected when one shows respect to the national anthem as well as to the national flag.”
The court was hearing the petition from Shyam Narayan Chouksey, a 77-year-old retired government engineer and social activist based in the city of Bhopal in central India. Mr. Chouksey said in an interview that he wanted the court to “clear all the doubts and confusions regarding the proper use of the national anthem.” He said he was unhappy with what he saw as the rampant misuse and commercialization of the national anthem.
Mr. Chouksey said that the idea came from his youth days when cinemas played the anthem after the movie ended. “But the people were in a rush to go and they rarely paid attention.”
“In Europe and America, people don’t throw garbage and litter everywhere because they have public spirit,” Mr. Chouksey said. “In India, people don’t have that public spirit, which begins through respect for the national ideals and symbols like the national anthem.”
The court said the order should be enforced within 10 days. It didn’t specify what action the authorities could take against violators but said that it was giving directives only as an “interim measure” awaiting the response of the federal government in New Delhi. The next hearing in the case is on Feb. 14.
A lawyer for the Indian government told the court that the government will bring the order to public attention through electronic and print media.
Some critics said Wednesday that the order took the tradition of playing the national anthem at events too far, citing Nobel Laureate Rabindranath Tagore, composer of the song.
“It is my conviction that my countrymen will gain truly their India by fighting against that education which teaches them that a country is greater than the ideals of humanity,” he wrote in a 1917 essay on nationalism.


Saturday, October 17, 2015

Scrapping NJAC: Judiciary versus not executive but will of the people

A five-judge Constitution bench of the Supreme Court on Friday scrapped the National Judicial Appointment Commission – passed by Parliament as the 99th amendment to the Constitution – disallowing the Executive a hand in selection of judges for appointment to High Courts and the Supreme Court.

Though one of the judges, Justice Chelameshwar had his reasons to uphold the validity of NJAC, the ruling will prevail till the government of the day at the Centre decides its future course of action to protect its Constitutional amendment. Therein is the recipe for a future confrontation between the judiciary and the executive on the issue of judicial independence.

India is free, egalitarian and democratic and values judicial independence. This independence in practice has to be seen in the level of transparency in the appointment of judges to the higher judiciary. The Indian judiciary, by dint of carrying on the task of upholding the Constitution and champion the fundamental rights of the people, has necessarily to be seen to have judicial accountability for itself.

What better way to uphold than to have a system of judicial appointments not exclusively headed and maintained by judges themselves? That is where the NJAC comes into the picture. And by scrapping the NJAC, the judiciary has opened itself to a lot of questioning. It is not the case of the judges appointing a bad judge or a good judge; it is of whether it can ever look fair for judges to appoint judges among themselves.

Judicial independence is a concept born in the United States where ironically, the selection and appointment of judges is clearly a political process with all powers retained by the executive. In India, on the contrary, the NJAC was a step towards enlarging the appointments panel to include the judiciary itself. The prevalent, collegium process of the judiciary itself appointing judges was felt a bit too independent an exercise which brought about the question of judicial accountability. That these are times when the Indian judiciary is seen to exercise judicial activism through frequent observations on the country’s political and social life, thus reinforcing that the executive is at times weak and at best indecisive, is an altogether separate matter.

It is the same principle of judicial accountability that provides a hierarchical system of the Supreme Court over the high courts and the high courts over the subordinate judiciary. However, the Supreme Court does not have an authority above it. So, how will the apex court account for accountability? The age of whimsical Victorian morality is long past us and Indian judges themselves have often admitted that they too are humans and therefore subject to mistakes. They are the conscience-keepers of the Constitution. Does it mean they are accountable only to themselves?

The entire controversy between the judiciary and the executive over the appointment system arose because of follies committed by both in the past. In the early years after Independence, it was so that most of the judges of the Supreme Court were previously judges of the high courts, with the senior-most of them taking over as Chief Justice of the apex court. It was in 1958 that the Law Commission of India found that the process did not take merit into account.

The Commission’s view-point was ignored until former Prime Minister Indira Gandhi decided to openly interfere with the judicial appointments, thus confirming her authoritarian mood that would eventually plunge India into the dark period of Emergency. In 1973, she appointed Justice Ajit Nath Ray as the Chief Justice, superseding three justices. She obstinately named his successor too – Justice MH Beg – superseding Justice HR Khanna who, coincidentally had dissented in a 1975 case on the need for Emergency detenus to have recourse to legal remedy.

The judiciary stung by such blatant misuse of power, and turning a blind eye to the less than proficient postures of the two Indira’s appointees, decided to bring in safeguards. The issue that remained unresolved in major judicial debates and in the deciding of such cases in courts was the nature of “consultation” (of who-ever, the Chief Justice or the President through the executive, etc) in the appointment of judges. Through rulings in what are called the First Judges’ Case (1981), the Second Judges’ case (1993) and the third Judges’ case (1998), the judiciary twisted and turned with this word.

First it said the Constitution talks about “consultation” and not “concurrence”, meaning thereby that while the Chief Justice can be consulted, the opinion of the President and not of the Chief Justice will have primacy. That was fine with the Constitutional provision. Then it made a turn, saying the opinion of the Chief Justice should have primacy. This was against the provision of the Constitution which says the President will appoint the judges after consulting the Chief Justice. This amounted to the judiciary becoming what some legal experts a self-appointed institution which was not as per the Constitution. The judiciary elsewhere in the world does not have such freedom to appoint judges by itself. In any case, since then, the collegium system came into existence which nullified the role of the executive in higher judicial appointments, the executive nursing its political wound saying the judiciary was over-reaching and that the executive would have to have a say in the appointments.

The NDA government brought in a bill to set up the NJAC. It was passed by Parliament in 2014 and came into force from this April. At last count 20 states had ratified it. However, some legal experts challenged it in the supreme court saying it stifled the role of the chief justice of the Supreme Court, subverts the independence of the judiciary and works against the “basic structure” of the Constitution.

Their contention was that the “basic structure” of the Constitution is not amenable to change at all and that judicial independence is one key aspect of the “basic structure” and therefore cannot be diluted by Parliament. A landmark judgement in 1973 (Kesavananda Bharathi case) had classified certain elements of the Indian Constitution as "basic structure". It has been held that the “basic structure” of the Constitution cannot and should not be tinkered with, as it belongs to the core of the Constitutional spirit.

The fight between independence – whose? -- and accountability – whose? -- has only begun.

The larger issue the judiciary will have to think about is the primacy of the will of the people in democratic India. Both Houses of Parliament had passed the NJAC Bill and 20 state assemblies have already ratified it. By committing itself against the NJAC, the Supreme Court with one stone wasted the opportunity of tweaking the NJAC to its satisfaction in consultation with the government and, secondly, has put itself in an impossible position to defend in future its preferred system of appointing judges on its own.

Monday, May 11, 2015

Supreme Court asks own: Are we being flexible with law in granting divorce?

Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”.
A Supreme Court bench has decided to examine whether the top court should be granting divorce on the ground of irretrievable breakdown of marriage and without the mandatory 18-month period of separation.
For many years now, the Supreme Court, exercising its power under Article 142 of the Constitution, has been granting divorce even while the Hindu Marriage Act makes it mandatory for couples to stay apart for at least 18 months before parting with mutual consent.
While the government has informed the top court that there is no proposal to incorporate irretrievable breakdown of marriage as one of the conditions for grant of divorce in the Act, a bench of Justices Ranjan Gogoi and N V Ramana has decided to examine whether judges should be overriding the legislative will.
Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”. Using this, the court has granted divorce in several cases, dispensing with the six-month waiting period after a judicial separation of one year — that makes it 18 months under Section 13B of the Act.
Adjudicating a clutch of petitions wherein couples wanted the waiting period to be curtailed since there was irretrievable breakdown of marriage, Justices Gogoi and Ramana wondered if they should exercise such power when the Act provides otherwise. They sought the views of Attorney General Mukul Rohatgi who said the legislature was not contemplating irretrievable breakdown of marriage as a ground for divorce.
On whether the court should dispense with the waiting period, Rohatgi said there have been dissenting views of different benches of the apex court between 1996 and 2010. Some judges were of the opinion that the six-month notice period should be relaxed while others said if legislature had a specific provision, couples should be sent to family courts for getting divorce as per law, he said.
Rohatgi said it may be proper to let a constitution bench decide whether divorce can at all be granted on the ground of irretrievable breakdown of marriage and also if the waiting period could be dispensed with.
The bench, however, noted that referring the issue to a constitution bench may not provide a solution since a decision by it would take long while such cases would keep coming up in quest of speedy disposal. It observed there could be “numerous peculiar situations” in a marriage and when “it is almost impossible to understand human beings, devising a thumb rule to grant divorce in such cases is very difficult”.
The bench appointed four amicus in the case — senior advocates V Giri, Dushyant Dave, Indira Jaising and Meenakshi Arora — and sought their assistance in finding legal answers to two questions it framed.
It sought to know whether the top court should exercise its power under Article 142 at all or whether it could be done on a case-to-case basis. Further, what could be the broad parameters for exercise of such power to dissolve a marriage without referring a couple to a family court to wait for the mandatory period.