During the past few weeks, in the wake of Corona virus’s second wave hitting its peak, we have been having some really interesting observations from the higher judiciary. On April 24, 2021 a Division Bench of the Delhi High Court observed that it will “hang any person” who tries to obstruct oxygen supplies to hospitals in Delhi. Similarly on May 4, a Division Bench of the said court told the state counsel that, “you can put your head in sand like an ostrich, we will not” and issued contempt notice against the Union Government, for failing to supply 700 M.T. of oxygen to Delhi, every day. A bench of the Madras High Court said on April 27, 2021 that the election Commission is singularly responsible for the second wave of covid and should probably be tried on murder charges for their failure to ensure adherence to COVID-19 protocols, during the election. The observations which Supreme court later was constrained to say, “were harsh and inappropriate”. The Supreme Court further emphasized that “there is need for judges of superior courts to exercise restraint…..”. However the judicial quote that probably takes the cake is the one, in which the Delhi High court on June 1, 2021, while directing the Government to prioritize younger people over older ones, when it came to administering Amphotericin-B, a drug used to treat Mucormycosis, observed that the young are the “future of the country” and need to be saved, while the elderly have , “lived their life” and that the Government should learn from the foreign countries in this regard. It must also be borne in mind that not all such observations get reported in papers. Any practicing lawyer who has put in years, will have much more to narrate, usually the quotes that get to be cited the most, are the ones laced with rare humour.

However, the question is what makes the higher judiciary, at times, make such sweeping or even intemperate remarks, when the role assigned to higher judiciary in the Constitution makes it almost necessary that the observations that come from a judge holding a court, should always be tempered with moderation, restraint, discipline and even wisdom. Is it the extraordinary hard work that the judges need to put in, in order to keep up with ever increasing piles of case files or is it because the higher courts have come to firmly believe that they are the ultimate arbiters in the country and therefore every order or decision or policy of the state must get their stamp of approval, for things to move forward, at all?

It has long been settled and accepted, even by judicial verdicts of the apex court, that the courts are not ordinarily to interfere in the policy matters of the state. In Census Commissioner & others v. R. Krishnamurthi (2015) 2 SCC 796, where a High Court had issued directions to Census department to conduct caste-wise census to achieve social justice, the Supreme Court held, “it is not within the domain of the court to Legislate…. The courts have the jurisdiction to declare the law as unconstitutional …… . But the courts are not to plunge into policy making by adding something to policy by way of issuing a writ of mandamus. There, the judicial restraint is called for, remembering what we have stated in the beginning…” . What the Judgement states in the beginning are the various quotes (all worth reading), aimed at reminding that “…refrain and restraint are the essential virtues in the arena of adjudication because they guard as sentinel….”. One such quote mentioned is from “centuries back” of Francis Bacon, who said thus;

“Judges ought to be more learned than witty, more reverend than plausible and more advised than confident. Above all things integrity is their portion and proper virtue. …Let the judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions but yet lions under the throne”.

Again in Union of India v. Indian Radiological & Imaging Association, it was simply held that, “The wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review”.” Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature”.

Many more such verdicts, dripping in wisdom, can be mentioned here but these two are enough to illustrate the point. The question however that begs for an answer here is, why do very often courts in India forget or neglect such pearls of wisdom laid out by their own revered seniors? Why nowhere else in the world, given the global scale of the pandemic, apart from India, have the courts, distrusting the state, taken upon themselves to arrange for oxygen, medicines and the vaccine and also to direct which section of patients be attempted so be saved and which should be allowed to let go for having “lived their life”. These kinds of directions without any doubt, are beyond the jurisdiction of the courts. These are clearly the arenas which must be left for the Government to govern, preferably with the help of the experts. An assumption that all in the Government are either fools or are corrupt or simply incompetent cannot always be a valid starting point of all judicial actions. The courts must never disregard that the preamble of the Constitution of India unequivocally makes the `people of India’ the very source of all the power that flows from the various provisions of the Constitution. It is thus, us, the people of India, who are the ultimate source of power in India. It is these very people who go to polls every five years to elect their representatives in the Parliament and the state legislatures, who in turn must alone, as the chosen representatives of people, enact the laws and frame the policy for the people of India. Only these representatives, empowered by almost a sacred process of elections, are answerable and accountable to people of India and therefore alone have the power to enact laws and to frame the policy governing “we the people of India”, deserving therefore some respect, of the courts as well. The people of India in turn have the right and the power to change their representatives, in the next elections, if and when they do not approve of the policies or the laws framed by their elected representatives. The observation of the CJI on June 30, that “the mere right to change the ruler once every few years, by itself need not be a guarantee against tyranny of the elected” has to be taken to mean that tyranny of the elected, whenever it takes place, is also to be curbed by application of laws of crime and procedure, etc., but it cannot be taken to mean that higher judiciary can be allowed to have a free run, even when it came to formulating policy and the laws by the legislature, for it is this, which is the prime purpose for which the elections are held and elected representatives are elected at all. Moreover, as some of the observations mentioned above show, this debate also raises a question, how the tyranny of the unelected and in powerful office, for a long haul, is to be dealt with?

We all know how the number of pending cases, awaiting their turn to be heard and decided are piling up, by the day, in all courts in the country, will it, therefore, be not a more useful and purposive use of the court’s time to hear and decide pending cases of ordinary folks, then to foray in the arena not meant for adjudication by the courts and thereby respect the division of labour, clearly demarcated by the Constitution of India?

]]> https://lawfinderblog.com/in-defense-of-the-legislature/feed/ 0 https://lawfinderblog.com/the-supreme-and-the-supremer/?utm_source=rss&utm_medium=rss&utm_campaign=the-supreme-and-the-supremer https://lawfinderblog.com/the-supreme-and-the-supremer/#comments Tue, 26 Sep 2023 04:50:24 +0000 https://lawfinderblog.com/?p=4350 Of late the Parliament, the Executive and the Judiciary, seem perp...]]>

Of late the Parliament, the Executive and the Judiciary, seem perpetually locked in the battle of supremacy and the article 124 of the Constitution of India, in particular, has long been a battleground of tussle between the Union Government and `the Union Judiciary’ for seeking that primacy in the matters of appointment of judges to the Supreme Court and the various High Courts. Prior to the verdict handed down in the case of S.C. Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, the judges were appointed to the Supreme Court by the President of India, “by warrant under his hand and seal after Consultation with such of judges of the Supreme Court and of the High Court …. as the President may deem necessary…”. This expression with regard to `consultation’ however was radically altered by the Supreme Court in the above referred to case in 1993, when the word “consultation” was interpreted by the 9-judge bench, to mean “Concurrence” or “Conformity”, with the opinion of the Chief Justice of India. It was further laid down that in case of a Supreme Court the proposal is to be initiated by the CJI and in the case of a High Court by the Chief Justice of that High Court and in the event of Conflict of Opinion, the view of the Chief Justice of India, is to prevail.

It is not that the system in place prior to 1993, in which the executive had the primacy, as per the express provision of the Constitution, was found rotten or broken down by the Supreme Court. In fact, to the contrary some very eminent judges such as Justice C. A. Vaidyialingam, Justice V.R. Krishna Iyer, Justice R.S. Sarkaria, Justice V.D. Tulzapurkar, Justice O. Chinappa Reddy, and Justice Kuldeep Singh, amongst the many more outstanding judges, had adorned the chair, under the original system in place prior to 1993.

Recently, the Supreme Court has held in Rajesh Sharma v. State of U.P. (2018) 10 SCC 472, that, “Function of this court is not to legislate but only to interpret the law“. In Kotak Mahindra Bank v. A. Bala Krishnan (2022) 9 SCC 364, while relying upon some earlier rulings on the point, a 3-judge bench of the Supreme Court has held that, “it is not permissible for the court to add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation.” The Supreme Court, however, does not seem to listen to its own self, as is apparent from the judgement in the case of appointment of Chief Election Commission that is Anoop Baranwal v. Union of India, wherein even after noticing that, ” while making a law is ordinarily a power with the legislative branch and being a power it cannot be compelled by a court….”, yet being “concerned with the devastating effect of continuing to leave appointments in the sole hand of the executive….”, the Supreme Court found, “that the time was ripe for the court to lay down norms”. The “norms” laid down provide for appointment of the Chief Election Commission on the same pattern as the Director of the CBI that is by the President on the advice of a committee consisting of the Prime Minister, the Leader of Opposition, and the Chief Justice of India. Nothing illegal however was found in the appointment the new Election Commissioner, despite summoning the file of his appointment from the union Government.

The Question is; is there any limit on the powers of the Supreme Court or does the Supreme Court being `Supreme’ has no limit on its powers. It needs to be clarified that the expression “Supreme Court” must be interpreted to mean supreme of all courts as distinguished from supreme of all authorities. The preamble of the Constitution of India makes it very clear that the people of this country are the ultimate source of all power, whose `solemn resolve’ has fathered this constitution and therefore are undeniably `SUPERME.’ It is none else but the people of India whose collective resolve has created this constitution. The question that next arises is, which institution best reflects the collective will of the people of India. It surely cannot be the Supreme Court and has to be the Parliament, whose members are directly chosen by the people themselves and therefore the weakening of this institution will necessarily amount to weakening of our democracy. The question that next begs for an answer is, can the Supreme court take over the functions of the parliament? If our democracy is to fit the most accepted definition of `democracy’ which is, `a rule of the people, by the people…’, then the answer has to be in the negative. The role of the courts, thus, has to be, to only interpret the law, framed by the Parliament and to apply the same in a given set of facts and the circumstances. In doing so it is important not to wonder off too far away from the actual text of the legislation and to reach at a conclusion that is not borne out from the plain and honest reading of the text of the legislation, even if the court is able to write a judgement that spreads over hundreds of pages, for reading in the text of the statute what clearly is not provided for or not intended to be provided for, has to mean taking away from the exclusive reserve of the people of India and thereby diluting their power and consequently the democracy.

Let us now examine the practical application of the new interpretation given to the language of Article 324(2). It is easy to see that in a committee consisting of the Prime Minister, the Leader of Opposition, (who is a leader of the party rejected by the people) and the Chief Justice, the P.M. and the Leader of Opposition will almost never agree upon a same person, giving the actual power, to choose the Election Commissioner, to the CJI. A position not only not envisaged in the constitution but also is one that clearly and decisively takes the power to appoint the EC from out of the hands of the representatives of people of India and thereby from out of the hands of people of India and almost places it in the hands of an authority not elected by the people, which certainly is not a situation that strengthens democracy.

]]> https://lawfinderblog.com/the-supreme-and-the-supremer/feed/ 1 https://lawfinderblog.com/an-ode-to-lawyering/?utm_source=rss&utm_medium=rss&utm_campaign=an-ode-to-lawyering https://lawfinderblog.com/an-ode-to-lawyering/#comments Fri, 05 Aug 2022 11:40:23 +0000 https://lawfinderblog.com/?p=4287 After passing out, in early 1980s, from awesome campus of Mahindra College Pa...]]>

After passing out, in early 1980s, from awesome campus of Mahindra College Patiala, on completion of my graduation in English Literature, I thought, joining M.A. (English) was the only and the most natural way to go forward, not only because I thought it was my natural calling but also because I thought it would see me through to the Central Civil Services. My father, then a judicial officer, however, persuaded me to join the LLB course, for he thought it offered better career prospects and I, in the end, very reluctantly agreed to fall in line.

Just as we were nearing the completion of LLB, everybody worriedly reflected upon, “what next”. As far as I remember no one, enthusiastically planned on setting up his own law practice. I too followed the then `National hobby’ and started preparing for the Civil Services. As we went along, we often heard of some college mate, upon completing his MBA, joining a well-known private company on a “handsome package” and we would think, wow! Some went to banking and some to public sector undertakings and seemingly, the more accomplished amongst us, cleared the Civil Services, leaving us envious, as we thought, “wow! A regular monthly salary, with power & influence to boot as well, how damn lucky”. Eventually, I decided to give up chasing that elusive dream of joining civil services and plunged into the Law Practice. Soon I shifted to Chandigarh and started my own practice at Punjab & Haryana High Court in the right earnest. It is as a lawyer you realize what `uncertainty in life’ really means. As once the Hon’ble Mr. Justice G.S. Singhivi remarked in court that a lawyer often does not know how and when his next meal is going to come from. However, like many before me, I too realized soon that eventually a lawyer’s persistence and sheer hard work starts bearing fruit. It gradually dawns upon him that he on account of his dogged persistence is not only able to make more money than the most `handsomest of the packages’ that some of his erstwhile peers are getting but also on account of being able to get judicial “decrees” and the “writs” issued by the process of law, is able to exert a considerable amount of influence and respect in society. Those amongst the lawyers who could move up to the `Bench’, needless to say, outshone all services, in the arena of `power’, influence and respect.

I am however, only now beginning to realize, that the best was still yet to come, especially for those who steadfastly kept pulling themselves along the path of the legal practice. Almost suddenly, all those college mates who had joined any kind of services, started staring at the impending retirement and then there actually were retirements all around but the lawyer within us (the lawyers) was telling us, “what retirement? I have just started and all that tremendous knowledge and experience that I have gained over the years will continue to be put to their best use and cannot be allowed to go waste, God willing, not for the next, may be, twenty years”. Quite clearly the lawyer is, in fact, the proverbial tortoise.

During the recent long drawn out lock down, there were two visuals that I missed the most; one seeing Virat Kohli or Rohit Sharma, donning India colours, hold a bat and smack the ball from the rival team’s bowler, to boundary with the crowds erupting into rhapsodies and the second; of us lawyers appearing in our sable uniforms in courts, with judges presiding over from their high daises. As of now we do not even know when will we see such scenes live again. There were other simple pleasures of life, which too we were eagerly awaiting to resume, such as morning walks and going to markets etc, most of which have been resumed but alas! not the physical appearances in designated court rooms. It however, is time, we emulated some of the COVID-19 warrior such as doctors, paramedic staff, the police and other paramilitary forces, Army and now even the entire Govt officialdom. Some of these, particularly the doctors and the police, not only never rolled back their duties but had also been performing duties since March 2020 in much more challenging and perilous conditions, yet we have not seen any report from any quarters, whereby any of them may have refused to perform duties.

Of course, the physical working of courts entail its own peculiar risks but we can now seek a lot of encouragement from the data that has emerged in the meanwhile. It shows that the Case Fatality Rate (CFR) in India stood at 2.8%, which is amongst the lowest in the world compared to global fatality rate of 6.13%, as per the information released by GoI. The recovery rate also stands at health 48.4 %, which too is amongst the finest in the world. The low CFR and the high recovery rate, it is said, shows that,” India may not be witnessing an impact as severe as in some other countries..”. Likewise, the number of people who have required ventilator support, in our country, is also less than 2%. The said data thus makes out a strong case for resuming normal functioning of all courts at least in this part of the country. Conversely if we continue to shut the court rooms for a long period of time and continue with video conferencing method for `extremely urgent’ cases only, the arrears of pending cases, already a mountain, will climb to unmanageable proportions. Moreover, whenever we open the courts, let’s say after one year from now, even then the probability of catching the virus by some of us, will not be zero, it will never be. The judicial process, however, must march on, resolutely for there are thousands patiently waiting for years together, to find justice at last.

The courts are called “Temple of Justice”, to my mind it is that temple which even an atheist is happy to visit, therefore your Lordships please! Open up the gates and let us once again see this temple of justice function in its full glory.

The Indian Perspective

In U.S.A. every person accused of a crime punishable by incarceration for more than six months has a constitutional right to a trial by jury. The right has been granted by the Sixth Amendment, the Seventh Amendment and the article three of the U.S. Constitution, which states, “The trial of all crimes… shall be by jury…” The U.S. Supreme Court in Baldwin Vs New York, 399 U.S. 66 (1970), ( case decided on June 22, 1970), has ruled that if imprisonment is for six months or less, trial by jury is not required, meaning there by that a state may choose whether or not to permit trial by jury in such cases.

The right to trial by jury in a civil case is addressed by the Seventh Amendment, which provides, “In suits in common law, where value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law”. Though the early version of the 7th Amendment was introduced in U.S. Congress in 1789, the Secretary of State Thomas Jefferson announced the adoption of the Amendment on March 1, 1792. The Amendment however does not guarantee trial by jury in cases under the maritime law, in law suits against the Government itself and for many parts of patent claims. In all other cases the jury can be waived by the consent of the parties. The Amendment additionally guarantees a minimum of six member jury and maximum of twelve, in a civil suit. The amendment’s 20 dollar threshold has not been the subject of much debate and still remains applicable despite the inflation that has taken place since 1792.

The jury system was primarily put in place to ensure honesty and transparency in the justice delivery system. The U.S. Supreme Court noted the importance of the jury rights in its 1968 ruling of Duncan Vs Louisiana, 391 U.S. 145 (1968), “Those who wrote our Constitution knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the Constitution strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right trial by a jury of his peers gave him an inestimable safeguard against the corrupt or the overzealous prosecutor and against the compliant, biased or eccentric judge”

Jurors in some states (in U.S.A.) are selected through voter registration and driver’s license lists. A form is sent to prospective juror to pre-qualify them by asking the recipient to answer questions about citizenship, disabilities, ability to understand the English language and whether they have any conditions that would excuse them from being a juror.

I happened to witness a civil jury trial, for three days in Los Angeles (L.A. California) “Superior Court”. The trial was about wrongful/malefic dismissal of the Plaintiff from the employment of the Defendant Company. It is striking for a person steeped in traditional Indian mind set to notice that the jury members not only, very often come from humble social back grounds but also that they are completely untrained in law. When the jury members were being examined by the judge to see if they fulfilled the parameters of jury duty, it emerged that one of the jury members was earlier an employee of the defendant Company, who was dismissed by the defendant Company allegedly for not doing his duty as was expected of him. On concerns being expressed by the defendant Company’s lawyer that this prospective jury member could be harbouring rancour against the defendant Company, the presiding judge chose to probe this possible jury member a little more than is usual. The judge asked him what kind of job he used to do when he was with the defendant Company. The potential Juror replied, to my utter amazement, that he used to wipe floors in the defendant Company. On being asked why was he let go, the potential Juror replied that it was alleged by his supervisor that he did not clean the floors well enough. He added that he had since moved on in life and he harboured no ill will towards the Company now. Surprisingly, his mere statement to this effect was good enough for the judge to rule that the man did not suffer from any bias and was good for jury duty. The all pervading trust in the system was too apparent to be missed by anyone. Despite this the jury was still falling short by one member, a lady, who was being awaited. The judge announced he had received a phone call from the lady who said her father was in hospital and therefore she was going to be late for the jury duty. The judge said that he has no option but to adjourn the court till after the lunch break in order to await her. I was curious to know whether the lady would join the jury duty after lunch and the trial would begin, so I waited out the lunch hour and was in court just as the court resumed after lunch. However, to the disappointment of everyone the judge said, he had called up the lady during the lunch break and she informed that her father was still in hospital and therefore she will not be unable to come for her jury duty. The court therefore had to be adjourned that day to work on her replacement.

As can be gathered from the narration above the members of a jury are ordinary folks, with no special qualifications at all and the only educational requirement is to be able to understand the English language. They come as young as men and women in their twenties, often dressed up in casuals, even inappropriately, to my traditional mindset, for court duty. Moreover the court staff, lawyers and members of the audience do not necessarily stand up to the every entry or exit of the judge but they would surely rise up the moment jury members start to pick up their respective bags and purses etc. in preparation to walk out of the court room. The all pervading humility and the trust and the informality of the entire system is instantly endearing and yet totally surprising to an Indian mind.

In a jury system judge only conducts the trial and announces the punishment/ penalty but it is the jury that actually announces the verdict that is; Guilty-not guilty or motion denied-motion allowed etc. It is this confusion in the roles of the judge and the jury that undid the jury system in India in 1956, after the famous Nanavati’s case, of a naval officer, who was though found guilty of murder of a lover of his wife yet the jury also did not think it appropriate to give him the capital punishment for the crime committed.

Could the jury system succeed in India? In my humble opinion the jury system does bring in protection from whims, arbitrariness and at times, the over bearing attitudes of the presiding officers but do we have so much faith in the system and the unquestionable trust in the ability of common men and women, so as to elevate them to the position of a justice deliverers, is a question that we need to ask first.