Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajiv Sharma, ACJ and Manoj Kumar Tiwari, J., heard a writ petition which was treated as public interest litigation wherein a prayer was made to provide financial assistance to the priests with respect to the hardships faced by them.

The Court took cognizance of a letter addressed by the petitioner, highlighting the financial difficulties faced by the Hindu Priests who performed the Vedic rites and religious ceremonies throughout the State of Uttarakhand. It was stated that they lived a life of penury which disabled them to impart education to their children and, therefore, they prayed for financial assistance and pension from the State Government. The Court pressed upon the fact that though there being a prima facie case, it could not be studied in isolation as similar financial hardships would also be faced by the priests of all the religions including Islam, Christianity, Sikhism, Jainism, Buddhism, etc.

The Court was of the view that priests assisted the citizens in enjoying the freedom of conscience and to profess, practice and propagate their respective religion and hence the prayer shall be considered. Accordingly, the State Government was directed to apprise the Court on what financial assistance could be rendered to the Hindu Priests, Maulwis, Granthis/Raagis and Christian Priests which enabled them to make both ends meet within the parameters of Articles 25 and 26 of the Constitution of India. The matter is listed on 06-09-2018. [Subhash Joshi v. State of Uttarakhand, WP (PIL) No. 117 of 2018, order dated 29-08-2018]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a writ petition filed under Article 226 and 227 of the Constitution, a Single Judge Bench of Vineet Kothari, J. dismissed the petition holding that the petitioner has not allowed the respondent Authorities to consider the case on merits and proceed further in accordance with law and this amounted to abuse of process of law.

The petitioner was aggrieved by the Occupancy Certificate issued by the respondent Authorities in favor of the 5th respondent to develop and construct a building on the site owned by the petitioner. The petitioner alleged that the 5th respondent deviated from the sanctioned plan and thus the Occupancy Certificate needs to be cancelled and the building be demolished. It was also brought to the notice of the Court that the respondent Authorities had already withdrawn the impugned certificate.

The Court held the petition to be misconceived. There were various remedies available to the petitioner under the KMC Act, 1976. The main relief prayed for in the petition- withdrawal of the certificate- stood granted by the respondent, already. As regards the further process, the Court held that it was premature for the Court to direct the respondent Authorities at this stage.

The Court was of the opinion that even if the public bodies do not take appropriate step in the matter, the only remedy available to the complainant is to avail the remedy by way of civil suits in the competent Civil Court under Section 9, CPC. The complainant has to make specific factual averments and lead appropriate evidence in such Civil Courts before claiming any relief. The complainant should first pursue their remedy before the Departmental Authorities under the KMC Act and then the Civil Courts. Initiating such legal process from the top by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution is an abuse of process of law and bypassing the relevant remedies could not be appreciated. Accordingly the petition was dismissed without any order as to costs. [H.K. Chanchala Devi v. State of Karnataka,  2017 SCC OnLine Kar 1829, decided on August 16, 2017]

 

OP. ED.

In the last three decades, a time the Supreme Court of India has widely been seen as a Court that governs almost as often as it decides, Tehmtan Andhyarujina unfailingly held a mirror up to it. A self-professed judicial conservative, Andhyarujina argued to limit judicial power and bolster parliamentary sovereignty in several constitutional cases. This was not because he felt Parliament to be in some sense better functioning than the Court. In fact, far from it. In a lecture at the University of Oxford in 2012, he lamented about disruptions that had crippled Parliament; in the same lecture he extolled the virtues of Indian law and its courts. Instead, he believed in parliamentary sovereignty because the Constitution demanded it. And Andhyarujina was a true servant of the Constitution.

His reading of the Constitution was undoubtedly shaped by H.M. Seervai, in whose chambers Andhyarujina started out as a junior lawyer. Seervai appeared for the State in Kesavananda[1] and argued that the Court had no power to strike down an amendment to the Constitution for violating the basic structure. Andhyarujina, present in the Supreme Court for the 66 days during which Kesavananda[1] was heard, meticulously recorded Seervai’s arguments and also astutely observed courtroom proceedings—the questions posed by the Judges, their ideological inclinations, the master stratagems of Nani Palkhivala, the lead counsel for the petitioner and the murky politics that was being waged under the veneer of a civil judicial proceeding.

His book, titled The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament (2012) is a masterful work filled with personal reminiscences of those 66 days. It is a combination of rare personal insight pressed into the service of larger constitutional arguments. For example, Justice Dwivedi, one of the six dissenting Judges, Andhyarujina writes, said during the proceedings in open court that if the petitioners conceded that the fundamental right to property could be amended he would be “prepared to procure from Parliament that all other fundamental rights can be left unamended” (p. 24). Justice Dwivedi was by no means the only Judge who appeared to have a predetermined agenda (in his case, a pro-Government one) during the hearings. Justice Hegde, one of the majority Judges, gave such short shrift to Seervai’s arguments, that Seervai contemplated never appearing before the Supreme Court again (p. 23). The larger point is not lost on any reader—that while Kesavananda1 might represent the zenith of Indian constitutional law, underneath the lofty statements of law creating the basic structure of the Constitution, lay a deeply political Court locked in battle with Parliament.

For Andhyarujina, the resolution of such a battle lay in the text of the Constitution. As Advocate General of Maharashtra, he argued to save the constitutionality of several legislations passed by the State of Maharashtra by urging the Court to read provisions of law with due deference to the legislature. Notable is his defence of the Explanation to Section 2(26) of the Bombay Sales Tax Act, 1959 inserted by way of amendment in 1988. This provision excluded goods held by trademark and patent-holders from the purview of “resale” thereby not allowing the value of such goods to be deducted when sales tax is to be computed. Andhyarujina successfully argued that this provision was in pith and substance on sales tax and had no effect of freedom of trade and commerce[2]. In the Supreme Court, in Aruna Ramachandra Shanbaug[3] he urged the Court to recognise passive euthanasia for persons in permanent vegetative state as legal, with certain safeguards. This too was based on his view that the right to life in Article 21 of the Constitution meant a life with dignity, something that a person in a permanent vegetative state did not possess.

But it was in the leading constitutional cases of the day that Andhyarujina shone, not necessarily because he always emerged victorious, but more importantly because he always spoke truth to power. In I.R. Coelho[4], he argued to save the constitutionality of the Ninth Schedule to the Constitution which immunised statutes from judicial review; in Supreme Court Advocates-on-Record Assn.[5], he argued that a concern for judicial independence could not extend to striking down a perfectly reasonable constitutional amendment only because judicial primacy in appointment of Judges was not as secure as it was in the collegium system. Educated in the finest traditions of English constitutional law, Andhyarujina believed in parliamentary sovereignty and fought till the end to protect it from what he saw as the “path of deviation” on which the Supreme Court had set itself through its activism[6]. This was not intended to berate the Court, but instead to guide it in a direction as the Constitution, in Andhyarujina’s view, demanded.

I must end on a personal note. I was privileged to know Mr Andhyarujina in the last ten years of his life. He gently advised me to reconsider returning to India from the United Kingdom as in his view, the Supreme Court was overrun by “piddly” matters; to make good his advice he examined my doctoral thesis at the University of Oxford, hoping perhaps that his advice and comments might make me remain there. However, when I did return, we spent some wonderful evenings on his Hauz Khas Enclave terrace arguing about the Constitution, sparring over the influence of the common law on the Indian legal system, and debating whether the basic structure doctrine was legitimate. True to my republican faith, I staunchly argued against it; a lawyer to the end, Mr Andhyarujina, with that familiar twinkle in his eye, respectfully demurred.

_________

[T.M. Andhyarujina, Senior Advocate, Supreme Court of India, former Solicitor General of India, Advocate General of Maharashtra and an esteemed member of the SCC Editorial Board, died on 28-3-2017. He was 83.]

   [1]  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

   [2]  Federation of Associations of Maharashtra v. State of Maharashtra, 1994 SCC OnLine Bom 750

   [3]  Aruna Ramachandra Shanbaug v. Union of India, (2011) 15 SCC 480

   [4]  I.R. Coelho v. State of T.N., (2007) 2 SCC 1

   [5]  Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1

  [6]  T.R. Andhyarujina, “The Unique Judicial Activism of the Supreme Court of India”, (2014) 130 Law Quarterly Review 53

OP. ED.

The power to make laws in most modern societies lies in democratic institutions. Under the Constitution of India (“the Constitution”) as well, this power is entrusted with the legislature. However, Article 123 of the Constitution allows the head of executive (which is the President under the Constitution) to promulgate ordinances to deal with situations which require immediate attention. It is considered to be a very important provision of the Constitution (with two major constitutional amendments focusing on them)[1], and has come to be accepted despite its obvious and inherently undemocratic nature. This article intends to show that this provision to promulgate ordinances is often misused and needs to be amended.

The President is allowed to exercise legislative powers in cases which require “immediate action”. It would appear, however, that this legislative power is exercised by the President without any urgency. Several ordinances are regularly passed on subjects where no immediate action is required and which would not justify bypassing the democratic process.[2] In fact, the number of ordinances promulgated and the subject-matters dealt therein would make one believe that the Indian legislative system is functioning with President only.

It is obvious that this was not what was intended by the Constituent Assembly when the provision for ordinances was included in the Constitution. The use of the words “immediate action” make this clear. It was also suggested in the Constituent Assembly to change the heading of the Chapter to read “Extraordinary Powers of the President” instead of the current “Legislative Powers of the President” to make it clear that the powers “are extraordinary; that is to say, they are not to be employed in normal times”[3].

It would appear that the provision is often used by the ruling Governments to quickly enact laws that (in their opinion) do not require much debate or attention. This is because the President has to act on aid and advice of the Council of Ministers, and keeping in mind the ordinances promulgated in the past, amendments to the existing laws is often made through ordinances. Ordinances appear to be a loophole that the ruling Governments have found to push laws without bringing much attention or spending time in Parliament.

Romesh Thapar explains, “[government] by ordinance is the pattern these days. Apart from the fact that the speculators have to be curbed, there is no time to go through the tedious procedures in Parliament which permit disruptive lobbies to build, lobbies that paralyse action.”[4] None of this, however, justifies the fact such procedures have practically just become tricks to bypass the ordinary democratic process. In a later article, Thapar agrees, “There is not a situation in India which cannot be handled by the normal law of the land, that is, if the instruments of policy implementation are kept intact and not reduced to disarray by politicians and fawning bureaucrats.”[5]

An inherent premise of the above argument is that if something is undemocratic, it is undesirable. However, there is no reason for this to be true. A good decision can come out of an undemocratic procedure as well. An analysis of ordinances promulgated in the recent past would reveal that most of them are introduced as bills in Parliament and accepted.[6] This would imply that the democratic process has approved of the ordinance as being correct and desirable.

Why, then, is the lack of democracy in ordinance procedure being portrayed as bad in the present article? This is because of several reasons. Correctness of decision aside, the fact, in theory at least, remains that the provision is undemocratic at heart — a State may be ruled by a monarch for a long time, however, that does not justify his exercise of power over other people regardless of the correctness of the decision. Further, such a State does not have any legitimacy attached to it. As several authors have argued, legitimacy of institutions runs to the core of a State, and a failure to justify its legitimacy could directly attack its sovereignty.[7]

Moreover, just because practically a provision is used only to arrive at the correct decision does not mean that this will remain the case in the future as well. Many scholars agree that there is a “[p]ossibility of abuse of the ordinance-making power”[8] and there is “no guarantee that such powers will not be abused in the future”[9].

This potential for misuse arises from the way Article 123 is phrased and the lack of provisos or safeguards thereto. The President may promulgate ordinances if he is satisfied that there are circumstances which make it necessary for him to take action. While the ordinance is amenable to judicial scrutiny, the court would not look into the preconditions of necessity.[10] Moreover, even the concept of mala fide would not apply as legislative intentions are out of judicial reach.[11] Further, it is for the petitioner to prove that necessary circumstances could not have existed.[12] Such a scheme of things is strange — the burden of proof should be on the executive to prove that the undemocratic use of power was necessary, and not vice versa.

One of the biggest factors adding to the potential for misuse is the fact that ordinances can go without adequate legislative review for more than half a year at a time. And even if the ordinance lapses or is repealed by the Legislative Assembly, the ordinance would not be void ab initio. Any legal effect caused by the ordinance in that period would continue to exist. Thus, even if the democratic institutions are to approve or disapprove of the acts later, the fact is that the undemocratic laws can affect the nature of the Indian State quite drastically.

Several authors have argued that any provision for ordinances is unnecessary and should be taken out of the Constitution. A.G. Noorani has argued:

How do countries like the US and Canada deal with such a situation? In the same way that any other country does — summon the legislature urgently. [This power] has been abused not only by the States but also by the Centre with no check by the Supreme Court.… The precondition of urgency has been ignored…. The existence of the circumstances has never been probed into by the courts.[13]

Various other authors support this — “Legislation by ordinances is not extra-constitutional, but improper and undemocratic.”[14] Prof. M.P. Jain agrees with Noorani, saying that “[t]he executive in Britain or the USA enjoys no such power.”[15] In a different article, Noorani argues, “History will be made the day the Supreme Court holds that the very power to make … ordinances is judicially reviewable and is subject to strict conditions”[16].

Such a situation, where the power to promulgate ordinances is completely taken out of the Constitution of India would indeed be ideal. However, if the State is of the opinion that it is necessary to retain this provision (to deal with urgent situations, for instance), it is essential that essential safeguards be put into place.

The time period for which the ordinance is to be in force needs to be reduced drastically, to a few weeks at most. This is because if there is a situation which requires immediate attention, then the legislature needs to be summoned as soon as possible to deal with it. Ordinances should only be used as a temporary measure till the legislature assembles for the emergency meeting.

Further, provisos must be included to the effect that necessity of action or urgency to promulgate action needs to be proved by the executive. Ordinances should only be used for situations of utmost emergency, and having a provision which requires material to be shown to ensure that necessary conditions exist is necessary to balance the provision with at least some responsibility added to the executive. Another provision that could be included to ensure that ordinances are promulgated only in situations of urgency is to include a restriction which says that ordinances can only be issued when emergency has been proclaimed by the President. This would again make sure that ordinances are not issued unnecessarily when a democratic procedure could be followed. Ultimately, the aim should be to reduce the undemocratic elements to a minimum (or, if possible, completely eliminate it), and where in the Constitution it still remains, high requirements be imposed for its usage.

*3rd year student, BA LLB (Hons.), Jindal Global Law School, O.P. Jindal Global University, Sonipat.

[1]  The Constitution (Thirty-Eighth Amendment) Act, 1975 and the Constitution (Forty-Fourth Amendment) Act, 1978.

[2] For instance, Arbitration and Conciliation (Amendment) Ordinance, 2015; Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015; Negotiable Instruments (Amendment) Ordinance, 2015; among many others.

[3]  Constituent Assembly Debates, p. 201

[4]  The Trouble about Ordinances, Romesh Thapar, Economic & Politicial Weekly (13-7-1974).

[5]  Law or Ordinance?, Romesh Thapar, Economic & Political Weekly (23-11-1974).

[6]  Ordinances promulgated in and after 2014 have been considered for this analysis.

[7]  Mithi Mukherjee, An Imperial Constitution?: Justice as Equity and the Making of the Indian Constitution, in India in the Shadows of Empire: A Legal and Political History, pp. 199-201 (Oxford University Press, 2011).

[8]  Introduction to the Constitution of India, Durga Das Basu, Nagpur LexisNexis, (22nd Edn., 2014) p. 207.

[9]  Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[10]  A.K. Roy v. Union of India, (1982) 1 SCC 271; S.K.G. Sugar Ltd. v. State of Bihar, (1974) 4 SCC 827.

[11]  T. Venkata Reddy v. State of A.P., (1985) 3 SCC 198; State of Karnataka v. B.A. Hasanahba, 1998 SCC OnLine Kar 93 : AIR 1998 Kar 210.

[12]  Gyanendra Kumar v. Union of India, 1996 SCC OnLine Del 367 : AIR 1997 Del 58.

[13]  Ordinance Raj, A.G. Noorani, Economic & Political Weekly (12-12-1998).

[14] Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[15]  Indian Constitutional Law, M.P. Jain, Nagpur LexisNexis (6th Edn., 2003) p. 181.

[16]  Supreme Court and Ordinances, A.G. Noorani, Economic & Political Weekly (28-2-1987).

Case BriefsHigh Courts

Delhi High Court: Mr. R.P. Luthra,  a practising advocate had filed a writ petition before the Delhi High Court challenging the recommendation of four names by the Supreme Court Collegium in May, 2016 and certain other reliefs including a declaration that the judgments passed by the Supreme Court from time to time with regard to mechanism of appointment of judges are unconstitutional. The writ petition was dismissed by the Single bench stating that a High Court cannot declare Supreme Court’s judgment as per incuriam and that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.

Now, the petitioner had appealed against the order before Division Bench contending that the same had been passed without affording adequate opportunity to the petitioner to argue the matter. He also referred to the fact that the name of a practicing Advocate had been recommended by the Collegium by the impugned recommendation without considering the candidature of appellant and other similarly placed lawyers and therefore, contended that it was violative of Articles 14, 19 and 21 of the Constitution. He further submitted that the recommendation of the Collegium being an administrative act is open to judicial review under Article 226 referring to Centre for PIL v. Union of India, (2011) 4 SCC 1. The Division Bench rejected the contention stating that there is a basic difference between ‘eligibility’ and ‘suitability’ citing Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273, in which it was held that the appointment of a Judge of the High Court/Supreme Court requires ‘consultation’ and fitness of a person to be appointed is evaluated in the consultation process. Therefore, the evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation, the Bench held.

The advocate also contended that the Collegium should not have made the recommendation without finalising the Memorandum of Procedure for improvement of the Collegium System of appointment of Judges suggested by the Constitution Bench vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1. To this, the Court reverted that in the light of the order of the Constitution Bench in 2015 SCC OnLine SC 1224 dated 19.11.2015 in which while reserving the order, it was made clear that the process of appointment of Judges by the Collegium system need not remain on hold.  The appeal was dismissed accordingly. [RP Luthra v. Union of India, 2017 SCC OnLine Del 7239, decided on 01.03.2017]

 

Case BriefsSupreme Court

Supreme Court: Deciding the matter regarding the Court’s power to remit or pardon, the bench of Dipak Misra and Shiva Kirti Singh, JJ held that the argument that when a pardon or remission can be given under Article 72 or 161 of the Constitution by the constitutional authority, this Court can exercise the similar power under Article 32 of the Constitution of India is absolutely based on an erroneous premise. It further said that Article 32 of the Constitution can be only invoked when there is violation of any fundamental right or where the Court takes up certain grievance which falls in the realm of public interest litigation.

In the present case, the petitioner convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), had prayed for the issue of writ of mandamus commanding the Government to grant remission to them. It was contended that Chapter XIX of the New Punjab Jail Manual, 1996 lays down remission and award to the convicts depending upon good conduct and performance of duties allotted to them while they are undergoing sentence, but the benefit under the Chapter XIX of the Manual is not made available to the convicts under the NDPS Act on the ground that Section 32-A of the NDPS Act bars entitlement to such remission. However, it was further contended that the constitutional validity of Section 32-A of the NDPS Act and Section 433-A CrPC has been upheld in Dadu v. State of Maharashtra, (2000) 8 SCC 437 and Maru Ram v. Union of India, (1981) 1 SCC 107, respectively, and that the said provision does not come in the way of executive for exercising the constitutional power under Article 72 or 161 of the Constitution, hence, the denial to grant remission is totally arbitrary.

The Court, hence, held that the constitutional power engrafted under Articles 72 and 161 of the Constitution is different than the statutory power enshrined under Section 433-A CrPC. The petitioners do not have a right to seek remission under the Code because of Section 32A of the NDPS Act. However, they can always seek relief either under Article 71 or 161 of the Constitution, as the case may be, as it is in a different domain. Stating that the Article 32 of the Constitution of India enables a citizen to move this Court for enforcement of his fundamental rights, the Court held that the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious. [Tara Singh v. Union of India, 2016 SCC OnLine SC 631, decided on 29.06.2016]