Saturday, December 29, 2007

#008 SUPREME COURT OF INDIA ON PUBLIC INTEREST LITIGATION (PIL)

The Supreme Court of India, in its Judgement dated Dec. 14, 2007, (Seema Dhamdhere, Secretary, M.P.S.C. vs. State of Maharashtra and Others) reiterated the guidelines given by it in Gurpal Singh vs. State of Punjab, (2005 (5) SCC 136).

"The scope of entertaining a petition
styled as a public interest litigation, locus
standi of the petitioner particularly in matters
involving service of an employee has been
examined by this court in various cases. The
Court has to be satisfied about (a) the
credentials of the applicant; (b) the prima facie
correctness or nature of information given by
him; (c) the information being not vague and
indefinite. The information should show
gravity and seriousness involved. Court has to
strike balance between two conflicting
interests; (i) nobody should be allowed to
indulge in wild and reckless allegations
besmirching the character of others; and (ii)
avoidance of public mischief and to avoid
mischievous petitions seeking to assail, for
oblique motives, justifiable executive actions.
In such case, however, the Court cannot afford
to be liberal. It has to be extremely careful to
see that under the guise of redressing a public
grievance, it does not encroach upon the
sphere reserved by the Constitution to the
Executive and the Legislature. The Court has
to act ruthlessly while dealing with imposters
and busy bodies or meddlesome interlopers
impersonating as public-spirited holy men.
They masquerade as crusaders of justice. They
pretend to act in the name of Pro Bono
Publico, though they have no interest of the
public or even of their own to protect.

As noted supra, a time has come to weed
out the petitions, which though titled as public
interest litigations are in essence something
else. It is shocking to note that Courts are
flooded with large number of so called public
interest litigations where even a minuscule
percentage can legitimately be called as public
interest litigations
. Though the parameters of
public interest litigation have been indicated
by this Court in large number of cases, yet
unmindful of the real intentions and
objectives, High Courts are entertaining such
petitions and wasting valuable judicial time
which, as noted above, could be otherwise
utilized for disposal of genuine cases. Though
in Dr. Duryodhan Sahu and Ors. v. Jitendra
Kumar Mishra and Ors. (AIR 1999 SC 114),
this Court held that in service matters PILs
should not be entertained, the inflow of so-
called PILs involving service matters continues
unabated in the Courts and strangely are
entertained. The least the High Courts could
do is to throw them out on the basis of the
said decision. The other interesting aspect is
that in the PILs, official documents are being
annexed without even indicating as to how the
petitioner came to possess them. In one case,
it was noticed that an interesting answer was
given as to its possession. It was stated that a
packet was lying on the road and when out of
curiosity the petitioner opened it, he found
copies of the official documents. Whenever
such frivolous pleas are taken to explain
possession, the Court should do well not only
to dismiss the petitions but also to impose
exemplary costs. It would be desirable for the
Courts to filter out the frivolous petitions and
dismiss them with costs as afore-stated so that
the message goes in the right direction that
petitions filed with oblique motive do not have
the approval of the Courts."

Friday, November 30, 2007

#009 A DULL SPEECH TO JURISTS

BLOGGER'S VIEW
Reproduced hereunder is the speech rendered by Ms. Pratibha Patil, the President of India, on Nov. 24, 2007, AT THE INTERNATIONAL CONFERENCE OF JURISTS ON THE RULE OF LAW, held in New Delhi.

The contents of the speech are rather dull. Though it may not be she herself, who might have prepared the speech, we have to presume that she might have perused it before reading it on the dais.

I am not referring to the lacklustre style. I am referring to the essential things which she has omitted.

1. The President not referring to the perils faced by Judges in Pakistan, is understandable in view of our delicate relations with our neighbor. It is also a custom not to raise inconvenient issues.

2. The President used cliches like "Justice delayed is justice denied" etc.

3. The President, in my humble view, ought to have referred to the following:

a) Language used in framing laws becoming complex and cumbersome and clumsy. Sentences (of language) are becoming circumlocuting (round-about).

b) Legislatures in some countries not consulting judiciary before framing laws, about the basic legality of the provisions they are going to make. This would obviate the need for Courts to strike down grossly illegal provisions and creating unnecessary CASE LAW., apart from the bitterness and unpleasantness it results.

c) Executives in some countries not implementing even reasonable decrees/orders/writs of even the highest courts in the respective countries.

d) Armies, Navies, Airforce and other military establishments thinking that they are beyond the purview of rule of law.

Not that the President should be too active instead of being ceremonial. At the sametime, the President (and her speechwriters) have to appreciate that international jurists assembled there for a session to hear what the President of the Largest Democracy in the world will say about the Rule of Law.

PRESIDENT'S SPEECH
"... I have great pleasure in participating at the International Conference of Jurists on the Rule of Law and am delighted to speak before this august gathering of legal luminaries and jurists. I would also like to congratulate the winners of the National Law Day Awards and the International Jurists' Awards.

Differing theories and the current ongoing debates do not permit a clear jurist's definition of what the "Rule of Law" means internationally. However, the concept in simple terms translates itself to mean not only the need to abide by the rulebook but also the need to guarantee that while the rule is being interpreted, the law should not be seen as unjust, inequitable, discriminatory and arbitrary. These principles have guided many democratic nations in their efforts to establish responsible and responsive governing systems.

Infact, a democratic form of government must have its foundations on a rule of law that advocates the absence of arbitrary power, equality before law and protection of individual liberties. The Constitution of India provides a powerful framework for the protection and enforcement of basic rights of the individual and rejects the arbitrary use of power; its provisions reflect a commitment to promote the rule of law. Article 14 of the Indian Constitution specifically provides for equality before law and the equal protection of the laws. Parliament and the State Legislatures are democratically elected on the basis of adult suffrage. There is independence of judiciary and the power of judicial review. All these provisions together constitute a firm commitment to the rule of law.

We recently celebrated the 60th year of our Independence. It marked a long journey in realizing our constitutional goals and democratic aspirations. We can be sufficiently proud of our unwavering commitment to function on the basis of the rule of law. We, as Indians, are also proud of our achievements in education, science and technology, agriculture, industry and commerce. However, there are still a large number of people living below the poverty line. What does social and economic justice mean to them? As Mahatma Gandhi wished, could we contribute to wiping a tear from every eye or an eye at a time? While, I am fully aware, of the service rendered by the higher judiciary in India in upholding the rule of law, I believe lawyers and jurists can contribute much more to helping the needy who knock on the doors of justice. Clearly, in a country with the size and magnitude of India, there remain many challenges in providing social justice as well as justice to the marginalized sections of our society. High cost of judicial remedy is a cause of concern that needs rectification. Alternative dispute settlement systems need to be encouraged.

We need to reinforce our efforts for the better implementation of the rule of law, particularly for the disadvantaged sections of society. People should be made aware of their substantive legal rights as well as legal courts that can be approached for the enforcement of their rights. Awareness campaigns will be important in educating people. Again, while awareness is the first step, it alone is not enough. People must believe that the enforcement of their rights is possible and that they will get remedies. Public perception of legal institutions is crucial in this regard. Courts should make procedures as simple as possible for persons to gain access to it. Even though free legal aid is guaranteed for the weaker sections of society, it should be remembered that the quality of legal aid plays a very important role. Creative solutions to this problem will have to be thought of. The basic postulate of the rule of law that "justice should not only be done but it must also be seen to be done", is a constant reminder of the high standards that must be maintained in delivering justice. In this context, sometimes justice delayed can become justice denied and hence the need to ensure speedier disposal of cases.

While it is seen that the concept of the rule of law at the domestic or national level excludes arbitrariness and calls for administrative accountability, at the international level it assumes different connotations. The United Nations is currently discussing the "Rule of Law at the National and International Levels". An understanding of the rule of law among States cannot simply mean "effectiveness of laws" as seen at the domestic levels. It would require adherence and respect for international law as well as undertaking obligations established by the Charter of the United Nations and other international instruments in good faith.

Some of the basic principles governing international relations that are enshrined in the UN Charter - such as sovereignty, equality of States, prohibition of the use of force and protection of basic human rights, have to be adhered to by all nations. In present times, challenges to the "Rule of Law" also include problems of international terrorism, a global economic order that does not have adequate representation in international financial institutions for developing countries, weapons of mass destruction, transnational crimes - drugs, trafficking of individuals, money laundering etc. to name a few. In international conflict situations, in many parts of the world, children and women who constitute the weaker section of society are subject to innumerable hardships. Many parts of Asia and Africa are still experiencing drought, famine, disease and malnutrition. In today's world, we need to focus on the real purpose of the rule of law and structures of governance which is to uphold human dignity, encourage broad-based growth and develop accountable systems.

I am sure this International Conference of Jurists will provide an excellent opportunity to debate and discuss better means and methods of upholding the rule of law and providing justice to the common man.

I wish you good luck and success in your deliberations and declare this Conference open. ..."


TAIL PIECE
BJP (Bharatiya Janata Party) raised a hue and cry about the allegations pending against Ms. Pratibha Patil, in Maharashtra before her election as the President and the Government's inaction in not registering Criminal Cases against her.

Now, the party is mum, why? Are the allegations false? Do the questions of RULE OF LAW arise only during elections?

Monday, November 12, 2007

#010 LEGAL REDRESSAL OF GRIEVANCES OF PRIVATE SECTOR EMPLOYEES/EXECUTIVES

Employment in Private Sector is the order of the day in India. The employment may be in executive capacities or non-executive capacities.

Basically there is wide difference between employment in private sector and public sector. Where the Government or its organs are employers, an employee can approach the Supreme Court of India or the State High Courts seeking justice quoting various Articles of the Constitution, dealing with fundamental rights of citizens.

This is not the case with Private Sector employees and executives. They get hired and fired at the whims and fancies of the employers, particularly in IT firms. They slog for long work hours sometimes with due recognition and sometimes as unsung soldiers. The terms of employment between employees and employers are often reduced into a printed agreement in small fonts. Very rarely employees read the agreements they sign, but are bound by them.

Of course, even after reading, an employment-seeker cannot do anything about drastic terms and conditions they observe before signing, because employment opportunities are scarce. They, therefore, sign on dotted lines and may sometimes suffer. If there are some good Trade Unions working in the industry, to some extent they can neutralise the unilateral ways of employer.

Since wages and salaries in private sector are determined by contracts, they may vary from employee to employee and worker to worker. The basic principle "Equal pay for equal work" does not rule here. It is the manner in which Capitalism works.

In Public Sector, an employee can take up a plea of "Equal pay for equal work". This succeeds quote frequently.

Thursday, November 1, 2007

#005 ARECA NUTS AND MONEY LENDING

INTERESTING SUPREME COURT CASE

CASE NO.: Appeal (civil) 5540 of 2001
PETITIONER: M/s. P. Vaikunta Shenoy & Co
RESPONDENT: P. Hari Sharma
DATE OF JUDGMENT: 31/10/2007


A Commission Agent) lent advance money to an arecanut garden owner, for ensuring a regular supply of arecanuts, at an interest rate of 18% p.a. As the garden owner failed to supply the nuts, the Agent sued him to recover the loan. The garden owner claimed that the Commission Agent is engaged in money lending business without licence. Can the loan be recovered?

Ans. Yes. Pl. click this link to see the Supreme Court judgement: http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=29724

Friday, October 5, 2007

#003 CALLING SENIOR GOVT OFFICIALS TO COURT

INTERESTING SUPREME COURT CASE

State of Gujarat vs. Turabali Gulamhussain Hirani & Another.
CRIMINAL APPEAL NO.1338 OF 2007 (Arising out of Special Leave Petition (Crl) No. 2252 of 2007.
Date of Judgement: Oct. 4, 2007.


Lower courts often call Senior Government officials to the court for various purposes. How far it is proper

The Supreme Court observed that it is not appropriate to call Senior officials of Govt. frequently to the Court.

Here is the link, to enable readers to look at the full text:

http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=29606

Thursday, October 4, 2007

#100 JUDICIAL DISCIPLINARY AUTHORITY

NEED FOR CENTRAL JUDICIAL DISCIPLINARY AUTHORITY
CONTEXT
1) comments of a Supreme Court Justice on the Chief Minister of a State

2) conviction of four scribes by a State High Court for Contempt of Court, in connection with a report of theirs which criticized the former Chief Justice of India.


Judicial activism and PIL (Public Interest Litigation) by and large helped the people's cause, particularly those causes which individuals or Corporates do not take up on their own owing to expensive lengthy litigation.

According to the Indian Constitution, all the three organs of the State 1) Legislature 2) Executive 3)Judiciary enjoy equal status. There is an unanimous agreement that one wing will not encroach into the jurisdiction of the other wing. This has, substantially, been respected during the last sixty years of independence.

In India judiciary acts with near perfect freedom. There are no shackles except serious shortage of judges and staff and some paucity of court premises. There are no major financial constraints. The judiciary has also functioned with great discretion, efficiency, honor and self-respect. However, owing to shortage of judges, legal ambiguities and tedious procedures, hundreds of thousands of cases piled up resulting in delays. Though a cliche due to excess use, the adage "Justice delayed is justice denied" continues to be highly relevant and valid.

Some instances of corruption among judges have also come out. One retired Supreme Court Chief Justice has also expressed his unhappiness about the corruption in Indian courts.

Though there may not be much corruption at higher level of judiciary, their occasional

obiter dicta

now and then resulted in some recentment.

In this context, the need for an Autonomous Central Judicial Disciplinary Authority (CJDA) becomes essential. There are also supporting circumstanes such as: 1. The Chief Justice of India and the Collegium of Supreme Court Judges are heavily burdened with their regular work. 2. They may have delicacies while dealing with complaints against their own present colleagues or their former colleagues at High Courts.

WHAT SORT OF CJDA WE MAY NEED? IF SO WHAT MODALITIES?

1. Should be a creation of a Special Act of Parliament.
2. Must be a Constitutional body, by inserting suitable Articles in the Constitution.
3. Must have powers to caution and punish the Judges of the Supreme Court and the High Court, except dismissal.
4. Must have powers to recommend dismissal of the judges. Actual dismissal should take place through the existing procedure of impeachment.

MEMBERSHIP AND ORGANISATIONAL STRUCTURE

1. Retired Presidents of India can be automatically admitted as members the moment they demit their office.
2. Retired Chief Justices and Justices of Supreme Court of India can be automatically admitted as members, the moment they retire.
3. -do- Retired Chief Justices of State High Courts.
4. The Seniormost former President of India can function as the Chair Person of the Authority.
5. The Seniormost retired Chief Justice of Supreme Court can function as the Secretary and Convenor.
6. Whenever the Secretary-Convenor is unable to or does not co-operate in convening the meeting of the Authority, the Chair-person may be empowered to convene.

7. The Authority should have good buildings matching its status, sufficient staff with appropriate seniority, vehicles, computers and other equipment. These are important because, the Authority must be able to investigate the complaints against judges independently.

8. It must have judicial powers over the Supreme Court, with regard to the service matters of the Judges of the High Court and the Supreme Court.

(To continue)