THE LAWFILE

Archive for October 2011

The age factor

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PUBLISHED IN THE FRONTLINE

The appointment of three new judges to the Supreme Court reopens the debate on the need to appoint judges when they are younger.

The newly appointed judges of the Supreme Court (from left) Justices S.J. Mukhopadhaya, J.S. Khehar and Ranjana Desai.

A FEW weeks ago, the Supreme Court of India’s collegium, consisting of the Chief Justice and four most senior judges, cleared the names of three High Court judges for appointment to the Supreme Court. Once the collegium’s binding recommendation was accepted by the President, the new judges, Justices S.J. Mukhopadhaya, Ranjana Desai and J.S. Khehar, were sworn in to the court on September 13. This new slate of appointments will be worth noting for several reasons. Not insignificantly, this is the first set of Supreme Court appointments made by the present Chief Justice of India, Justice S.H. Kapadia, since he took over the office from Justice K.G. Balakrishnan in May 2010. One of the new judges is a woman – only the fifth woman among 196 judges appointed to the Supreme Court in its history spanning over six decades, and this is the first time two women judges will serve on the Supreme Court at the same time. The new appointments offer a telling glimpse into the trend of Supreme Court appointments during the last decade.

A total of 10 judges retire from the Supreme Court during Justice Kapadia’s term, including seven this year. (Justices B. Sudershan Reddy, V.S. Sirpurkar and H.S. Bedi have already retired, and the others to retire, in the order of retirement, are Justices Mukundakam Sharma, Markandey Katju, J.M. Panchal and R.V. Raveendran. Justices Cyriac Joseph, A.K. Ganguly, and Deepak Verma, in that order, will retire next year during Justice Kapadia’s term). This is the first time seven judges retire from the court in one year. In 2000, during Chief Justice A.S. Anand’s term, six judges retired and, one, Justice M. Srinivasan, passed away, creating seven vacancies that year. The vacancies this year also occur against the backdrop of a larger debate concerning many vacancies in High Courts.

But what does the appointment of the three new judges to the Supreme Court say about the candidates typically selected to the highest constitutional court of India? For one, the three judges are, on average, quite old. Two of them, S.J. Mukhopadhaya and Ranjana Desai, are over 61 years old. The retirement age of High Court judges is 62, and both these judges had less than a year left to retire from their respective High Courts. Since Supreme Court judges retire at the age of 65, both will serve terms of less than four years in the Supreme Court. Is this adequate? Forget for a moment that judges on the Supreme Court of the United States serve in office for life, and forget that judges of the South African constitutional court serve fixed non-renewable 15-year terms, but consider that in India most judges of High Courts serve at least 10-15 years in office, if not more.

For a constitutional court of the stature of the Indian Supreme Court to retain its coherence as an institution, to maintain consistency and predictability in the articulation and application of constitutional norms, it is essential that its judges be given more satisfactory tenures. That is not to say that judges of repute and learning such as Justices Mukhopadhaya and Ranjana Desai should not be appointed to the court: the only contention is that they should have been appointed earlier, or once appointed they should be given fixed but longer terms.

 

At present, the average age of the three new judges to be appointed is over 60.7 years. In fact, of the 38 Chief Justices of India, only three – Justices Harilal Kania, B.K. Mukherjea, and M.N. Venkatachaliah – made appointments of judges who had an average age higher than this (Table 1 illustrates that the average age of appointment to the court during the tenure of these three Chief Justices of India was over 61 years of age).

Interestingly, this is in keeping with the trend of appointment of older judges, on average, to the Supreme Court.

Youngest judges

The data tell us that the youngest Supreme Court judges in the country’s history were appointed in the 1970s. One of the finest judges the Supreme Court has ever seen, Justice P.N. Bhagwati, was only 51 years old when he was appointed to it. The fact that he served close to 14 years in office, a term longer than his tenure as a High Court judge in Gujarat, perhaps had something to do with the stature he attained in the court and the status he achieved as a judge. But even before him, many judges in the 1950s were appointed to the court at age 55 or younger (B.P. Sinha, Syed Jaffer Imam, P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao, K.N. Wanchoo, M. Hidayatullah, and J.C. Shah). Some of these names are amongst the most well known in India’s legal circles.

As the court’s most prolific dissenter, Justice K. Subba Rao went on to herald the demise of the “Gopalan era” in the court. According to one estimate, he wrote as many as 53 dissenting opinions, that is, opinions in which he disagreed with the majority view. In A.K. Gopalan vs Madras, AIR 1950 SC 27, the Supreme Court had held that the constitutionality of a law would have to be tested on the basis of the object of the law itself and not by the incidental effect the law would have on other fundamental freedoms. In a series of cases decided in the 1960s ( Kochuni vs Madras, AIR 1960 SC 1080; Kharak Singh vs U.P., AIR 1963 SC 1295; and Maharashtra vs Prabhakar, AIR 1966 SC 424), Justice Subba Rao expressed considerable doubt over the court’s “object” approach to constitutional analysis, an approach which was soon replaced by the “effects” test in R.C. Cooper vs Union, (1970) 1 SCC 248. Of a similar stature, opinions written by Justices Gajendragadkar and Hidayatullah still elicit adulation in classrooms and admiration in courtrooms. It is not implausible to posit that their age and lengthy terms in office gave them an edge – an occasion to define themselves on the court, and then to define the jurisprudence and docket of the court itself.

In the 1960s, Justice S.M. Sikri was the only judge appointed to the court at age 55, but as the Chief Justice of India he went on to preside over the most significant case in India’s constitutional history, where, as part of the majority, he and six other judges held that our Constitution had a “basic structure”, one which could not be altered or destroyed by constitutional amendment. In the 1970s, too, several judges were appointed to the court at age 55 or younger (Y.V. Chandrachud, P.N. Bhagwati, M. Fazl Ali, R.S. Pathak, O. Chinnappa Reddy, A.P. Sen and E.S. Venkataramiah). Many of these judges left a lasting mark on the jurisprudence of the court.

However, starting with the 1980s, in 30 years, only four judges have been appointed to the Supreme Court at age 55 or younger: Sabyasachi Mukherjee, A.S. Anand, S.P. Bharucha and K.G. Balakrishnan, each of whom went on to become Chief Justice of India. In fact, the data tell us that the oldest judges were appointed to the Supreme Court in the last two decades, that is, between 1990 and 2009. The average age of appointment during 2000-2009 was 59.7 years and during 1990-1999 it was 59.8 years – higher than the average of any previous decade. Justice Kapadia’s three appointments tend to fit this paradigm. In fact, one wonders if appointees to the Supreme Court today would not have been even older had the retirement age in High Courts been 65. If this were so the court’s collegium would have had even older High Court judges to choose from, judges who would potentially go on to serve only a few months in the Supreme Court.

That is not to say older judges cannot mould the jurisprudence of the court in a comparatively shorter but influential cameo innings. Chief Justice M. Patanjali Sastri, one of the first members of the court, was 61 years old when the Supreme Court of India came into being. Similarly, appointed at the relatively late age of 59, Justices Vivian Bose and H.R. Khanna each indelibly altered the trajectory of the court’s jurisprudence. In the famous Anwar Ali Sarkar case, Justice Bose was perhaps the first judge to use the phrase “reasonable, just and fair”, prescient words which would resonate in the court’s opinions decades later in the Maneka Gandhi case (1978) and beyond. Justice Khanna’s dissent in the habeas corpus case served as a moral compass for a court that tried desperately to atone for the wrongs it committed during the Emergency. Imagine a court where the Sastris, the Boses and the Khannas, or for that matter the Mukhopadhayas and the Desais serve not three to six years in office but 10 to 15 years – how much more beneficial that would be for the court and for our system.

Next, of the three new judges being appointed to the Supreme Court, two (Mukhopadhaya and Khehar) were High Court Chief Justices. There is nothing surprising about this either. In the early years, at least half the judges of the Supreme Court were typically amongst those who were not High Court Chief Justices. This began to show signs of change starting with the end of Justice A.M. Ahmadi’s tenure as Chief Justice of India (1994-1997) when an unprecedented 17 sitting Supreme Court judges (or 73 per cent of the court) were former High Court Chief Justices. This trend reached its zenith by the end of Justice R.C. Lahoti’s term as Chief Justice (2004-05), when an overwhelming 20 sitting Supreme Court judges (or 95 per cent of the court) were former High Court Chief Justices.

CHIEF JUSTICE OF India, Justice S.H. Kapadia. The number of judges retiring during his term will be 10. Of them, three have already retired and four more will retire this year.

For this reason, the fact that two of Chief Justice Kapadia’s new appointees are High Court Chief Justices is not surprising. (In fact, Justice Khehar served as Chief Justice of not one but two High Courts in succession (Uttarakhand and then Karnataka), a trend which has increasingly been seen in the court starting with the 1990s. The overwhelming dominance of High Court Chief Justices in the Supreme Court adds a few years to the average age of the court – after all, only the oldest judges in the country, those who have served the longest terms in the High Courts and risen to positions of seniority, are transferred to other High Courts as Chief Justices.

Neither, perhaps, is it surprising that the only Kapadia appointment to the court not to have been a High Court Chief Justice, Justice Ranjana Desai, is a woman. Only two (Sujata Manohar and Gyan Sudha Misra) of the four women who were appointed to the court before this, previously served as the Chief Justice of a High Court. Justices M. Fathima Beevi and Ruma Pal were not, and neither is Justice Ranjana Desai, although, to be fair, she was the most senior associate justice in the Bombay High Court.

P.N. BHAGAWATI, former Chief Justice of India. He was only 51 years old when he was appointed to the Supreme Court. He served close to 14 years in office and this perhaps had something to do with the stature he attained in the court and the status he achieved as a judge.

What do Chief Justice Kapadia’s appointments tell us about the Supreme Court itself? The appointment of the fifth woman justice of the court must be welcomed. Now there is only one other constituency that has a smaller claim to the court than women – “bar judges”. Since 1950, only four judges have been appointed to the Supreme Court directly from the bar, that is, without having served as a judge in a High Court. Starting with the 1960s, one such judge was appointed in every decade – S.M. Sikri in the 1960s, S. Chandra Roy in the 1970s, Kuldip Singh in the 1980s, and Santosh Hegde in the 1990s.

The 2000-09 decade was the only one since the 1950s when a judge was not appointed to the Supreme Court directly from the bar. The appointment of Justice Ranjana Desai to the court now means that women finally have a stronger claim to the court than the court’s own bar. However, the fact remains that where S.M. Sikri, a bar judge, served as the Chief Justice of India (during the historic Basic Structure hearings, no less), not a single woman has become the Chief Justice of India.

S.M. SIKRI. In the 1960s he was the only judge to be appointed at age 55, and the only one in that decade to be appointed directly from the bar. He went on to serve as Chief Justice of India and presided over the historic case on the “basic structure” of the Constitution.

Despite these statistical inferences, the three new selections for appointment to the Supreme Court must be welcomed, even as we look to see how the Chief Justice of India populates the remaining six vacancies during his tenure.

Abhinav Chandrachud is the author of Due Process of Law (EBC 2011), and, starting this Fall, a research fellow at Stanford Law School.

ORIGIN: http://www.frontline.in/stories/20111021282104900.htm

We don’t want to bleed anymore

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(Image of the delegates to the first meeting o...

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PUBLISHED IN ZEE NEWS INDIA

When the general secretary of the Congress party, Rahul Gandhi walked into the RML Hospital premises on September 07 after the Delhi High Court blast, slogans were shouted against him. And so were against other politicians who came to empathise with the victims and their families. This in many ways is symbolic of the growing frustration of the general public with those who govern them and the apathy with which they are treated.

India has been attacked again and again. Sample this – On March 12, 1993, Mumbai serial bombings shook the financial capital of the country killing more than 250 people. The main accused, Dawood Ibrahim is yet to be extradited to India from Pakistan. On December 13, 2001, more than a dozen people, including five gunmen, were killed in an attack on Parliament. On September 24, 2002, terrorists attacked Akshardham temple in Gujarat. In August 2003, two taxis packed with explosives blew up in Mumbai at crowded areas killing more than 50 people.

In October 2005, three bombs placed in Delhi markets, crowded with Diwali shoppers killed around 62 people and injured hundreds. In July 2006, seven bombs placed on Mumbai’s local trains killed over 200 people. Eight serial blasts rocked Jaipur in a span of 12 minutes in May 2008. On November 26, 2008, attacks on ten locations in Mumbai left more than 180 dead. Pakistani national, Ajmal Kasab has been sentenced to death with an appeal pending before the Supreme Court.

The list, sadly, goes on…

The Ram Pradhan Committee formed after 26/11 attacks to look into the lapses and recommend measures to stop further attacks, called for radical transformation of the police force. In spite of its recommendations, the beat constable is still unequipped, CCTV cameras still do not work and the Maharashtra Anti-Terrorist Squad established in 2004 is reportedly working at some 30 percent of the strength as compared to the numbers sanctioned by the government.

National Intelligence Grid was given approval by the Union Cabinet in June this year, months after the idea was first mooted. The project aimed at facilitating information-sharing among law enforcement agencies to combat terror was apparently delayed because of objections from other ministries, especially that of defence and finance, as they felt that the home ministry would have an unlimited access to all the information.

National Counter Terrorism Council (NCTC), an umbrella body to fight terror is also in the pipeline. Not sure when it will see the light of the day.

Delhi Chief Minister, after the High Court blast, had remarked that “multiplicity of agencies” created functional problem in combating terror and solving cases. To which the Home Minister P Chidambaram had replied that no single body can alone handle internal and external intelligence, policing and counter-terrorism. How often have we heard the government talk in different languages? And if statements like these do no create confusion in the minds of the citizens then what does?

On May 25, 2011, a blast took place at the Delhi High Court car park. Nonetheless it did nothing to wake up the authorities.

Home Minister recently said that Af-Pak was the epicentre of terror and that home-grown terror modules are fertilised from outside. And to a foreign television channel he said, “As far as cross-border terrorism is concerned, we have to continue to put pressure on Pakistan.”
The Indian Mujahideen gained notoriety in 2008 after taking responsibility for blasts in Ahmedabad, Jaipur, Delhi and Assam, even though it had been active since 2003. As per intelligence reports, the IM is being controlled from across the border. It was also reported recently that militants trying to infiltrate into India by June had exceeded the figures of 2010.

In this scenario what good are the photo-ops between SM Krishna and Hina Rabbani Khar, especially if the perpetrators of 26/11 cannot be brought to book? Yes, we cannot change our neighbours but we can certainly change the way we talk to them. Yes, trade and commerce are important issues, but not at the cost of losing innocent lives.

P Chidambram, was supposedly pulled back when he decided to tighten the noose around the Maoists, due to pressures from certain quarters and certain political parties. After the Batkal encounter case in Delhi, senior Congress leader Digvijay Singh, decided to visit Azamgarh. The Afzal Guru hanging case has long been in the public domain for the people to read between the lines. Isn’t it time we stop the policy of appeasement and vote-banks at the cost of bloodshed?

Congress leader Renuka Chowdhry said in a recent television debate, “Do you think that the terrorists will stop if we have a CCTV? What do you do when terrorists are ready to die?” After the serial blasts in Mumbai in July, Prithviraj Chavan, CM of Maharashtra lamented, “Terror groups are active and are able to strike at will.” Instead of statements like these, we need our leaders to send out a stern message to all terror groups that India will go after them in hot pursuit. And we also need a strong anti-terror law in place.

We have generic information about impending attacks but are we in a position to have specific and actionable and preventive attacks. Do our intelligence agencies depend too much on technical intelligence? Prime Minister Manmohan Singh expressed the same concern at a recent event when he said that security establishment needed to improve its, “human intelligence capabilities”.

Leader of Opposition in Rajya Sabha, Arun Jaitley said in a television interview, post the Delhi HC blast, “The most dangerous thing is that in the last six or so blasts, the cases are by and large unsolved.”

Think over this – On December 7, 2010, a bomb went off at a Varanasi ghat killing a two-year old girl with no arrests made in the case so far. On December 19, 2010, gunmen on motorbikes shot at a tourist bus injuring two persons. It was considered to be IM’s handiwork. The case is unsolved. On July 13, 2011, triple blasts in Mumbai killed 21 persons, with IM being the prime suspect. ATS is investigating, with an arrest only very recently. On April 6, 2011, two blasts took place in Maligaon in Assam which killed 7 persons. Investigation is on, ULFA are the main suspects. Inspite of some arrests, it is said that the main culprit is still in the run. And the very recent May 25, 2011, Delhi High Court car park blast with no casualties. It too remains unsolved. And add to it the 7/11 blast again at Delhi HC – not much headway in this case either.

Yes, it is a cause for alarm if cases of terror attacks are unsolved for a long period of time.

Amidst all these spare a thought for the victims of the bomb blasts – past and present and if I may add with a dread – the future. The citizens don’t want to be saluted anymore for their so called resilience and die-hard-spirit – what they want is to live in peace and dignity. And anyways what choice do they have than to get up and get going the next day?

Yes, maybe terror attacks all over the world cannot be prevented all the time. Nonetheless, it is important for the government and the intelligence agencies of the day to be perceived as trying to do their best.

 

ORIGIN: http://zeenews.india.com/news/world/we-don-t-want-to-bleed-anymore_734644.html

Renting and service tax

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PUBLISHED IN THE HINDU BUSINESS LINE

The plenary power of Parliament to legislate in determining relevance of service tax is subject to the Constitution.

 In Budget 2010, the Government used its Brahmastra and amended the Finance Act, 1994, levying service tax on renting of property. To ensure that the weapon was truly effective, the levy was made retrospective, with effect from June 1, 2007.

This measure was to counter the opinion — given twice — of the Delhi High Court, in Home Solution Retail, that the pure act of renting wouldn’t amount to a taxable service, since there is no value-addition involved.

It also sent signals to the Supreme Court, before whom a petition on that issue was pending, that the power of the Government to levy a tax under the Constitution is extremely wide. A bevy of petitions before the Mumbai High Court were disposed off recently, disagreeing with the opinion of the Delhi High Court.

MUMBAI HIGH COURT DECISION

In Retailers Association of India Vs Union of India and Ors, the Mumbai High Court reconsidered the constitutional validity of a service tax on rentals.

It noticed that the Supreme Court had an occasion to consider similar petitions in four landmark cases against the Union of India — Tamil Nadu Kalyana Mandapam, Gujarat Ambuja Cement, All India Federation of Tax Practitioners and Association of Leasing and Financial Services Companies. Considering a plethora of other Apex Court decisions, the Mumbai High Court held that the legislative basis that has been adopted by the Parliament in subjecting taxable services involved in the renting of property to the charge of service tax cannot be questioned.

The assumption by a legislative body, that an element of service is involved in the renting of immovable property is certainly not an assumption which can be regarded by the Court as being so manifestly perverse as to lead to an inference that the Parliament had treated as a service, an item which in no rational sense could be regarded as involving service.

But more significantly, even if the Court were to proceed on the basis, suggested by the petitioners, that no element of service is involved, that would not make the legislation beyond the legislative competence of Parliament.

As long as the legislation doesn’t trench upon a field which has been reserved to the State legislatures, the only conclusion that can be drawn is that the law must be treated as valid and within the purview of the field set apart for Parliament.

The petitioners were also irked by the retrospective application of the law. The Mumbai High Court was of the opinion that Parliament has the plenary power to enact legislation on the fields, which are set out in List I and List III of the Seventh Schedule.

RETROSPECTIVE APPLICATION

The plenary power of Parliament to legislate can extend to enacting legislation both with prospective and with retrospective effect. That, however, is subject to the mandate of Article 14 of the Constitution, which states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The Mumbai High Court agreed with the decision of the Supreme Court held in Bakhtawar Trust Vs M. D. Narayan, wherein it was held that it is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would be no more possible for the Court to arrive at the same verdict.

BEFORE THE SUPREME COURT

The decision of the Mumbai High Court follows the pattern of a host of High Courts, agreeing to disagree with the logic of the Delhi High Court in Home Solution Retail — the Punjab and Haryana High Court in Shubh Timb Steels, Orissa High Court in Utkal Builders and the Ahmedabad High Court in Cinemax India.

These decisions, along with the fact that renting of immovable property is not in the initial list of negative services, would be food for thought for the Supreme Court.

While all the developments post-Home India point to validating the levy, the Supreme Court could think of constitutional precedents and judicial cases to rule that the tax is applicable only from 2010 onwards, and not 2007.

 

(The author is a Bangalore-based chartered accountant.)

ORIGIN: http://www.thehindubusinessline.com/features/mentor/article2506762.ece?homepage=true

Nobel peace award extends human rights tradition

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Norwegian Nobel Committee

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PUBLISHED IN THE REUTERS

This year’s Nobel Peace Prize to three women from Liberia and Yemen extends the illustrious award’s tradition since the 1960s of honoring human rights and democracy activists as well as more conventional peacemakers.

Giving the award for human rights and pro-democracy activism naturally expands the concept of peace, according to the Nobel committee, but critics say it strays from the intention of Alfred Nobel, who created the prize in his 1895 will.

Liberian President Ellen Johnson-Sirleaf, her compatriot Leymah Gbowee and Arab activist Tawakul Karman won the prize for “for their non-violent struggle for the safety of women and for women’s rights to full participation in peace-building work,” the Norwegian Nobel Committee said.

Fredrik Heffermehl, an author who argues that the five-member committee has ignored Nobel’s intention time and again, said the committee failed to explain how this year’s prizes fulfilled the will.

Nobel stipulated that the prize should go to those “who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.”

“The Nobel committee has disrespected this for at least 60 years,” Heffermehl, an attorney and peace activist, said. “I am not evaluating the winners, I am evaluating the committee.”

Nobel Committee chairman Thorbjoern Jagland said the 2011 award was well within the spirit of Nobel’s will.

If the peace prize were primarily given to peace mediators or signatories to peace treaties, as in the prize’s early decades, women would have little chance of joining the honor roll of laureates, according to Nobel experts.

“There are very few female peace mediators in the world, very few women who sign peace treaties, but a full role for women would include involvement in those activities as well,” Geir Lundestad, secretary to the committee, told Reuters.

He said human rights had to include women’s rights.

Jan Egeland, a former U.N. undersecretary-general for humanitarian and emergency relief affairs, said peace and human rights were inseparable. “There is no peace without human rights, no human rights without peace.”

The prize created by Nobel, a Swedish philanthropist and inventor of dynamite, was in its early decades often awarded to patrician statesmen, such as U.S. President Theodore Roosevelt in 1906, and arrangers of peace congresses, such as the first woman laureate Bertha von Suttner in 1905.

But with the 1960 award to South African trade unionist Alfred Lutuli, the scope of the prize expanded from its roots in peace-making and disarmament to the battle for human rights.

That paved the way to prizes to many rights and democracy advocates and dissidents opposing authoritarian regimes, such as Andrei Sakarov in the Soviet Union in 1975, Lech Walesa in Poland in 1983, Aung San Suu Kyi in Myanmar in 1991 and last year’s laureate, Chinese human rights activist Liu Xiaobo.

The fight against poverty and hunger was taken on board with prizes to American agronomist Norman Borlaug in 1970, Mother Theresa of Calcutta in 1979 and Bangladeshi economist Mohammad Yunus and his Grameen Bank in 2006.

The scope of the prize was widened further to encompass environmental protection and climate activism with the awards to Kenya’s Wangari Maathai in 2004 and former U.S. vice president Al Gore and U.N. climate scientists in 2007.

Egeland said the activism of Johnson-Sirleaf, Gbowee and Karman was part of a “momentous trend of dictatorships being followed by democracies” since the 1970s.

“That has happened over only one generation, and the Arab Spring follows the Latin American spring and the Eastern European spring, and soon we will seen Central Asian springs and other Asian springs,” Egeland said.

 

Origin: http://www.reuters.com/article/2011/10/07/us-nobel-peace-tradition-idUSTRE79653P20111007