Supreme Court: India
This is a collection of articles archived for the excellence of their content.
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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
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.
Conflict Over Vyapam-Tainted Doctors' Fate
Aug 31 2016 : The Times of India (Delhi) 2-judge SC bench teaches law to 3-judge bench, Dhananjay Mahapatra A three-judge bench of the Supreme Court headed by Justice J S Khehar on Tuesday got some constitutional and legal lessons from a two-judge bench headed by Justice J Chelameswar.
The bench headed by Justice Khehar, who will become Chief Justice of India next year, was tasked with finding a solution to the conflict of opinion in a judgment rendered by the bench of Justices Chelameswar and A M Sapre in a case relating to punishment for those whose MBBS degrees were tainted by the Vyapam scam.
Justices Chelameswar and Sapre had found instances of undeserving candidates taking advantage of irregularities in entrance examinations to bag MBBS seats.Justice Chelameswar had said they should be asked to render charitable healthcare for a certain period to retain their MBBS degrees. But Justice Sapre had said these degrees should be cancelled.
The bench headed by Justice Khehar had asked whether the matter needed to be heard afresh to resolve the conflict of opinion and sought an answer from Justices Chelameswar and Sapre.
The miffed two-judge bench on Tuesday did not read out the judgment and merely signed it, departing from the usual practice where judges read out the operative portion of the verdict.
It said, “We completely fail to understand the reference made to Article 145(5) of the Constitution in the July 28, 2016 order (of the three-judge bench).“ Article 145(5) provides that the court should not pronounce a judgment without the concurrence of a majority of the judges on the bench which heard the case. However, it also says this would not prevent a judge from delivering a dissent judgment or opinion. Justices Chelameswar and Sapre said, “We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned. A rehearing of the entire matter as apparently suggested by the larger bench, in our opinion, would amount to an intra-court appeal.“
As a final message to the three-judge bench which appeared to have a touch of judicial sarcasm, the two-judge bench said, “If the larger bench of this court wishes to create an intra-court appeal, we obviously are powerless to stop it. We can only record our understanding of the law on the question and it is as recorded above.“
Three CJIs in a row from Karnataka High Court
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.
2015, July-Dec: disposal of cases by individual judges
The Times of India Jan 08 2016
Dhananjay Mahapatra
33,888 Cases Cleared In 2015
Chief Justice of India T S Thakur recently conducted a first-ever internal study to assess the individual contribution of 13 senior judges, heading two or three-judge benches in the Supreme Court, in reducing pendency of cases. The conclusion: five of the judges chipped away at pendency while the others added to it.
Tackling pendency was always seen as a collective task in the Supreme Court and individual efforts of judges were seldom focused upon. But CJI Thakur, after taking over on December 2, asked the SC reg istry to determine how each of the 13 judges had performed in terms of disposal of cases in the past six months -from July to December 2015. However, the index may not be an indicator of how the judges performed. One judge may have got cases involving complex questions of law or Constitutional issues, requiring hearings running into days and impeding the bench from disposing of a large number of cases, while others may have handled simpler cases allowing them to score higher.
The study had just three parameters: number of cases listed before the judge, number of cases in which notice was issued (meaning that many cases were introduced into the justice delivery system) and number of cases disposed. The difference between the number of cases a judge introduced into the system by issuing notice and the number of cases disposed of showed his disposal rate. If the number is positive, the judge added to case pendency; if negative, the judge helped to bring down pendency .
The list compiled by the registry took into account the disposal by the judges till 11.25am on December 12, 2015.From the list compiled, Jus ices A R Dave, Ranjan Gogoi, CJI Thakur, Madan B Lokur and J S Khehar reduced pendency while the remaining eight contributed to it. Justice Dipak Misra added the high est number of cases, followed by Justices P C Ghose, V Sen, Kurian Joseph, F M I Kalifulla, M Y Eqbal, V G Gowda and J Chelameswar. Justice Sen retired on December 30.
Disposal of cases since 2011 by the Supreme Court also saw wide fluctuations. It was 36,472 cases in 2011; 33,221 in 2012; 39,747 in 2013; 43,437 in 2014 and 33,888 in 2015.
2015: Key rulings
The Times of India Jan 01 2016
Amit Anand Choudhary
Women's Rights Too Hogged Limelight In SC
In the year gone by , the Supreme Court constitutionally spurned the historic offer from Parliament to throw light on one of its darkest alleys -the road to appoint judges. Parliament enacted National Judicial Appointments Commission (NJAC) to bring in transparency in the process of appointment of judges in the apex court and high courts. But, the SC strangely put its vote on the opaque collegium system of judges selecting judges.
The overwhelming public support for NJAC -the unanimous decision of Parliament and its ratification by 20 states -could not persuade the SC, which said independence of judiciary could be in danger if the Executive, the largest litigant, participated in selection of judges. But, the court was quite alive to the concerns of the public when it came to deciding the validity of Section 66A of Information Technology Act.
It had no reservation in scrapping the law saying it impeded the citizens' right to freedom of speech and expression.
The SC also saw through the politics behind the UPA 's decision ahead of the 2014 general elections to grant OBC status to Jats, seen as a prosperous community . The NDA too attempted to woo the Jats by defending the UPA decision. But, the SC minced no words and called the decision to give quota to Jats in jobs and admissions to educational institutions a `negative and retrograde' step.
Irrespective of the political party in power, there has always been a tendency to project their top leaders in government advertisements with taxpayers' money . The SC put an end to it by ruling that no politician's face, except that of President and the Prime Minister, can be put in government advertisements.The chief ministers were the worst hit by this decision and many states have approached the SC to permit the photos of CMs to be displayed in government advertisements.
One may not need any educational qualification to become an MP or MLA. But in a significant decision, the SC upheld the Haryana government's law laying down educational criteria for panchayat polls.
The SC virtually brought down the curtains on the long political career of former Haryana CM Om Prakash Chautala by upholding his conviction and 10-year jail term in teachers' recruitment scam case. N Srinivasan, who was at the helm of BCCI was bowled out by the SC which condemned him for failing to maintain purity of the `gentleman's game' by blinking at the maladies like betting and spot-fixing.
The court saw a midnight drama just before the scheduled hanging of Yakub Abdul Razak Memon, the lone condemned prisoner in 1993 serial blasts case of Mumbai. Despite repeatedly rejecting his plea for life sentence, the SC did not hesitate to hear his advocates again when they knocked at its doors in a last gasp attempt.
The court passed a series of orders in 2015 to reinforce the rights of women who are despised by society for living an unconventional life.In a path-breaking verdict, it ruled that an unwed mother must be recognised as a legal guardian of her child and she cannot be forced to reveal the name of the father or seek his consent to get guardianship of the child.
It also held that an unmarried couple, living together as husband and wife, would be presumed to be legally married and the woman would be eligible to inherit the property after the death of her partner. It also held that a woman was entitled to maintenance from her live-in partner.
The court also expressed concern over women being used as surrogate mothers by foreigners and directed the government to ban commercial surrogacy . This prompted the Centre to roll back its 2013 decision allowing import of human embryos for artificial reproduction.
Vacation bench
2014-16: Hardly used
The Times of India, Jun 02 2016
Only a handful of cases have been listed every day before the vacation bench of the Supreme Court in between May 16 till end of May, belying the strong criticism of the apex court and its judges for a seven-week summer holiday. On Wednesday , only five fresh cases were listed for hearing. In the last 13 days, the number of fresh cases listed before the bench did not touch double digits on six days. Only three fresh cases were heard on May 19. Together, in the last 13 days of the vacation, 209 fresh cases were listed. Apart from the 209 fresh cases, the vacation bench heard 183 old matters.
On a regular working day , an SC bench hears more than 60 cases on average. By contrast, the vacation bench took up 30 cases, both fresh and old, daily .
Most advocates who have a good practice are vacationing abroad. In their absence, the client does not want a junior advocate to argue their case. As a result, not many cases get listed. In the late 1990s, there used to be a single vacation bench that held court only twice a week. Gradually , its frequency was increased to three days a week and then it held court daily . With more cases pouring in during the vacation, the number of benches was increased to two and then three.
But in 2014-16, only one vacation bench sits daily to deal with the small number of cases that get listed for hearing.
This time around, Chief Justice of India T S Thakur's persuasion saw many advocates agreeing to list their cases for hearing during the summer holidays. As the vacation drew closer, there was a long queue of advocates before the CJI's bench every day and many of them sought to withdraw their earlier request for listing cases during the summer break. The CJI tried to persuade the advocates to change their mind, but not many actually did. Because of this, only a handful of cases got listed during the summer break.
It was during the tenure of Justice Y K Sabharwal as CJI that the nine-week summer vacation was curtailed to seven weeks. Thereafter, Justice P Sathasivam attempted to reduce it to four weeks, but he reportedly faced strong opposition both from judges and advocates. As the British legacy of summer break continues, there is little chance of it getting reduced without the cooperation of advocates.
