Revision as of 14:38, 9 December 2015

Calcutta HC on contempt: SC

The Times of India, Sep 18, 2011

The Jalpaiguri district court was shut for a month by people demanding a Calcutta high court circuit bench there and the high court convicted 18 people, including the DGP of the West Bengal police, editor of a local daily, an ex-MP, an MLA and the district magistrate, for contempt. When they appealed against their conviction and six-month jail term, the tables were turned in the Supreme Court, which not only quashed the contempt proceedings but also faulted the high court for not taking timely action during the agitation to help keep the district court open.

The protesting public started the agitation on December 15, 2006 outside the main gate of the district court and requested the judicial officers not to go to court. It continued for a month till January 15, 2007. Abench of Justices P Sathasivam and B S Chauhan said the agitation was peaceful and the judicial officers were not forcibly prevented from attending the court. However, it reiterated that “the administration of justice should never be stalled at the instance of anyone including the members of the bar even for any cause.” The SC found that there was no request from the district judge or from the registrar general of the HC for removal of the rostrum put up in front of the gate and clearing of the protesters. It disagreed with the HC’s view that the DGP disobeyed the Chief Justice’s order for restoration of the district court’s functioning.

Late night hearings and judgements

The Times of India, Jul 31 2015

SC has answered two more midnight knocks

Mumbai serial bomb blasts convict Yakub Memon was not the first one to knock at the Supreme Court's door past midnight. What made Yakub's petition unprecedented was the one-and-a-half hour long postmidnight hearing that lasted till the crack of dawn. Earlier, the hearings after court hours were mainly held at the residence of the senior judge presiding over the bench.

On April 8, 2013, lawyers of condemned prisoner at Jabalpur Central Jail, Maganlal Barela, who was to be hanged at dawn on April 9 for killing his children, successfully moved the SC close to midnight. Barela averted the gallows, after all preparations were made to hang him, after rejection of his mercy petition by the President. The fax from the SC con veying the stay on Barela's hanging reached jail authorities just five hours before the scheduled hanging.

Similarly , Nithari rape-murder convict Surinder Koli was scheduled to hang on September 9, 2014. At the intervening night of September 8-9, his lawyers, led by Indira Jaising, woke up justices H L Dattu and A R Dave and placed before them Koli's petition seeking re-hearing of his review petition. A three-judge bench later stayed the execution and ordered open court hearing.

Landmark shifts of stance

The Times of India

Case studies: Supreme Court’s landmark shifts

The apex court is rightly hailed for its stellar role. But little has been written about its dramatic shifts on a range of key issues. TOI brings you the untold story

Manoj Mitta

Raising a toast for the establishment of the Supreme Court as India turned into a Republic, C K Daphtary, who went on to become the first solicitor general, said in January 1950, “A republic without a pub is a relic!”

Jokes apart, no appraisal of the 60 years of the Indian Republic can ignore the stellar role played by the Supreme Court in maintaining the constitutional scheme of checks and balances. Equally, no appraisal of the Supreme Court can be complete without delving into the vagaries of its rulings, for better or for worse — especially because the shifts in its position have not always been for reasons beyond its control.

This somewhat awkward aspect has however received little attention, perhaps because of the reverence reserved for the higher judiciary. Here is an attempt to focus exclusively on the judicial shifts made by the Supreme Court through the 60 years of its existence on a range of key issues.

Somersault on due process

The first major constitutional issue decided by the Supreme Court came out of the preventive detention of communist leader A K Gopalan, in whose honour the headquarters of CPM is named. The issue was whether somebody’s detention could be justified merely on the ground that it had been carried out “according to the procedure established by law,” as stipulated in Article 21 of the Constitution. Or, would that procedure be valid only if it complied with principles of natural justice such as giving a hearing to the affected person?

In the A K Gopalan case of 1950, the Supreme Court, taking a narrow view of Article 21, refused to consider if the procedure established by law suffered from any deficiencies. Fortunately, three decades later, it took a 180 degree turn on this issue in the Maneka Gandhi case of 1978. The provocation was the arbitrary law that had allowed the Janata Party government to take away Maneka’s passport without any remedy. Importing the American concept of due process, the Supreme Court ruled that the procedure established by law for depriving somebody of their life or personal liberty had to be “just, fair and reasonable”.

Reduction of Parliament’s power to amend the Constitution

Validity of the very first constitutional amendment was challenged mainly because it had inserted the Ninth Schedule to insulate agrarian laws from being tested in courts. The issue facing the Supreme Court was to determine the extent to which Parliament could go while exercising its amending power under Article 368. This is how SC shifted its position more than once on this crucial issue.

First, in the Shankari Prasad case of 1951, it ruled that since no limits had been spelt out in Article 368, the power to amend the Constitution included abridgement of even fundamental rights.

Next, in the Golaknath case of 1967, it betrayed second thoughts on trusting Parliament with such unfettered discretion under Article 368. Since Article 13 stipulated that every law enacted by Parliament had to comply with fundamental rights, the Supreme Court read that limitation into constitutional amendments as well.

Finally, in the Kesavananda Bharati case of 1973, the SC held that the condition prescribed by Article 13 of complying with fundamental rights applied only to ordinary laws, not constitutional amendments. Taking the middle path, it said the only limitation on Article 368 was that a constitutional amendment could not alter the “basic structure” of the Constitution (such as the sovereignty of the country or its secular character).

Enlarging the scope of judicial review

For decades, the most abused provision of the Constitution was the sweeping power conferred on the President — in other words, the Central government — to dismiss a duly elected state government. The validity of actions taken under Article 356 of the Constitution went before the Supreme Court for the first time in 1977 when the then newly elected Janata Party government at the Centre had dismissedCongress governments in states for no reason other than the fact that it wanted to hold early elections.

But the Supreme Court, in what is known as the State of Rajasthan case of 1977, declined to intervene, ostensibly to avoid entering the political thicket. The President’s satisfaction that the state concerned could not be carried on in accordance with the provisions of the Constitution was, it said, not subject to judicial review. The apex court however reversed its stand in the S R Bommai case of 1994, where it held that a proclamation under Article 356 could be struck down if it was “found to be mala fide or based on wholly irrelevant or extraneous grounds”. Subjecting the President’s satisfaction to judicial review, the Bommai verdict clarified that the power conferred by Article 356 was a conditional one, not absolute.

Changing conception of compensation

Many a legal battle has been fought on the vexed issue of compensation payable to affected parties when a property has been acquired by the government. The question of interpreting the compensation promised by the Constitution arose for the first time in the Bela Banerjee case of 1954 involving a West Bengal law which sought to pay off the owners on the basis of the market value of their land on some distant date in the past. Rejecting the socialistic arguments of the state, SC laid down that the compensation should be “a just equivalent of what the owner has been deprived of”.

In a bid to get over the effect of the Bela Banerjee case, the Nehru government amended the Constitution stipulating that no law dealing with the manner in which compensation was to be given “shall be called in question in any court on the ground that the compensation by that law is not adequate”. This in turn triggered a chain of a vacillating judgments and another constitutional amendment on the compensation issue. It culminated in the shift from the categorical “just equivalent” in the Bela Banerjee case to a limp admission in the Kesavandanda Bharati case of 1973 that the amount need not be equivalent, so long as it was “not illusory”.

Diversity on quotas

Caste-based reservations in jobs and educational institutions are another contentious issue on which the Supreme Court has had to change its position in keeping with the times. Its initial response was completely adverse. In the Champakam Dorairajan case of 1951, the Supreme Court slammed caste-based reservations as a violation of the Constitutional prohibition of discrimination. It was however forced to take a more accommodative view of social justice once the Nehru government responded with the first constitutional amendment stipulating that the general prohibition of discrimination could not prevent the state from making any special provision for the advancement of SCs, STs and OBCs.

Having reconciled to the imperative of quota, the Supreme Court, in the M R Balaji case of 1963, imposed a cap of 50% on the extent of reservations for all the categories taken together, in a bid to ensure that the exception did not exceed the general rule of non-discrimination. Following the Mandal controversy, the Supreme Court, in the Indra Sawhney case of 1993, upheld the introduction of quota for OBCs in Central government jobs subject to the exclusion of the “creamy layer” (candidates whose parents are relatively wealthy or better educated).

Seasonal change on economic policy

True to its reputation of giving precedence to individual liberty over socialistic schemes, the Supreme Court, in the Bank Nationalization case of 1970, displayed no inhibition in probing the allegations that the Indira Gandhi’s government’s economic policy was discriminatory and deficient on compensation. As a corollary, it even struck down the nationalisation law.

But post-liberalisation, the SC, in the Balco case of 2001, upheld the Vajpayee government’s disinvestment policy by adopting the principle that “in the case of a policy decision on economic matters, the courts should be very circumspect in conducting any inquiry and must be most reluctant to impugn the judgment of the experts.”

Turning consultation into concurrence

This shift has earned the Supreme Court the opprobrium of turning the judiciary into a “self-perpetuating oligarchy”. For, all that the Constitution has prescribed in the appointment of judges to the Supreme Court is that the Chief Justice of India “shall always be consulted”.

Considering political fallout

When Supreme Court considered the political fallout of its verdict

Dhananjay Mahapatra The Times of India Jan 07 2015

The political fallout of a judicial decision has seldom bothered the judiciary, but it appears that in 2012 the Supreme Court delayed the judgment on the CBI's probe into disproportionate assets cases against the Samajwadi Party chief and his sons to await completion of assembly elections.

On March 1, 2007, just before the assembly elections, an SC bench headed by Justice A R Lakshmanan had ordered the CBI to probe into alleged disproportionate assets of Mulayam Singh Yadav and his sons on a PIL filed by Vishwanath Chatur-vedi. Justice Lakshmanan retired on March 21, 2007 and was immediately appointed as chair man of the Law Commission.

Yadavs filed petitions seeking review of the March 1, 2007 judgment questioning the jurisdiction of the SC to order CBI probe without the consent of the state government on a politically motivated petition.The review petitions were heard by a bench of Justices Altamas Kabir and H L Dattu, which reserved its judgment on February 17, 2011.

Internal communication between Justice Kabir and Justice Dattu, accessed by TOI, shows, among other things, the ground for delay in pronouncing the judgment was the possible political fal lout of its decision in this case.

In June 2012, Justice Kabir wrote to Justice Dattu: “I deliberately waited till after the UP elections to pronounce the judgment so that the level playing field was not disturbed.“ The UP Assembly elections were held between February 8, 2012 and March 3, 2012. SP swept the polls and Akhilesh Yadav became the chief minister.

Just days before the verdict on December 13, 2012, Justice Kabir sent the draft judgment to Justice Dattu for his approval. In the note attached to the draft judgment, Justice Kabir had referred to the CBI's flip-flops in the case and said, “This dual stand in the submissions of the highest investigating agency cannot be appreciated by this court.“

Justice Dattu agreed with Justice Kabir, who had by then become the Chief Justice of India, that the CBI stand had been confusing.However, he clarified that “while making submissions (on behalf of the CBI) it has been highlighted that substantial prima-facie elements are there to conduct an investigation“.

He also felt that there was no substantial evidence against Dimple Yadav and no further investigation needed to be carried out against her.But Justice Dattu was firm against quashing the entire proceedings regarding disproportionate assets. Justice Dattu wrote back: “As discussed with you, quashing of the entire proceedings regarding disproportionate assets, which is evident on the face of records, will not only be doing injustice but also create a political turbulence. We are directing only CBI probeinvestigation and not holding them guilty . If nothing is found, they are acquitted. But in fitness of things a thorough investigation is needed.“

The judgment on the review petitions was pronounced on December 13, 2012. The court held that the CBI probe into alleged disproportionate assets of Mulayam, Akhilesh, and Prateek Yadav as ordered by the SC on March 1, 2007 was justified.

Three CJIs in a row from Karnataka High Court

Oneindia

Oneindia | 4th Dec, 2015

Source: www.oneindia.com

Justices Dattu, Thakur and Kehar: Karnataka High Court's rare distinction

For Karnataka, Justice T S Thakur being sworn in as the Chief Justice of India is quite a rare distinction. He took over from Justice H L Dattu and after his retirement, going by the seniority list, it would be Justice Kehar who is likely to be the Chief Justice of India. Now what is common is that all three have served in the Karnataka High Court. Justice Kehar had in fact served as the Chief Justice of the Karnataka High Court before his elevation to the Supreme Court. Three Chief Justices and the Karnataka connection: Justice H L Dattu who just retired as the Chief Justice of India was appointed as Judge of the Karnataka High Court on December 12 1995. He was then transferred to the Chattisgarh high Court and elevated as its Chief Justice. He was then transferred to the Kerala High Court before being appointed as a Supreme Court judge in 2008. Justice T S Thakur was appointed as an Additional Judge of the High Court of J & K on 16th February, 1994 and transferred as Judge of the High Court of Karnataka in March, 1994. He was appointed as a permanent Judge in September, 1995. Was transferred as a Judge of the High Court of Delhi in July 2004. 
He was then appointed as Acting Chief Justice of Delhi High Court on 09.04.2008 and took over as Chief Justice of the High Court of Punjab and Haryana on August 11, 2008. He was elevated as Judge of Supreme Court and assumed charge on 17.11.2009 and appointed as Chief Justice of India on 03.12.2015. He is due to retire on January 4th 2017. After Justice Thakur retires, going by the list, Justice J S Kehar will be appointed as the Chief Justice of India. Although Justice Anil R Dave is senior, he will retire on November 18 2016. Post his retirement, Justice Kehar who has a tenure up to August 28 2017 will be the senior most judge. Following Justice Thakur's retirement on January 4 2017, Justice Kehar will take over as Chief Justice of India and would have a tenure of 8 months. Justice Kehar was elevated to the Bench of High Court of Punjab and Haryana, at Chandigarh, on February 8, 1999. He was appointed as Acting Chief Justice of the Punjab and Haryana High Court twice i.e., with effect from August 02, 2008, and again, with effect from November 17, 2009. He was elevated as Chief Justice of the High Court of Uttarakhand, at Nainital, on November 29, 2009 and thereafter he was transferred as Chief Justice of High Court of Karnataka, where he assumed his office on August 8, 2010. He was appointed judge of the Supreme Court on September 13, 2011.