THE LAWFILE

Posts Tagged ‘Supreme Court of india

The age factor

leave a comment »

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

Renting and service tax

leave a comment »

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

Judicial activism Of corrupt individuals, media trial and justice

with 2 comments

Supreme Court of India - Central Wing

Image via Wikipedia

PUBLISHED IN GREATER KASHMIR

The recent past has witnessed a good measure of writs, orders and directions from the Supreme Court of India which could be termed classical examples of Judicial Activism, an expression used invariably to connote meaning when courts pronounce on matters which usually and in the ordinary course of things do not fall within their well defined areas of operation or jurisdiction. Legally the courts in these matters may not be lacking jurisdiction totally, but as a matter of practice which over a long period of time has hardened into an unwritten rule, the courts do not interfere in such matters as are best left to the discretion or powers of the Executive or Legislature.
There might have been instances of judicial activism in the country in the past but then the constitutional doctrine of separation of powers was never lost sight of. The Supreme Court of India while dealing with various matters and while giving new dimensions to the concept of rule of law and taking the concept of rule of law to higher legal heights had always refrained from making pronouncements on matters of public policy followed by the executive. Thus the often spoken about doctrine-of-separation of powers between the judiciary, executive and parliament was respected and clearly kept in mind.
Without going into finer details as to what could be termed as judicial activism or pure judicial functioning and not trying to lay down lines of distinction between the two, let us come straight way to the recent unusual decisions or directions of Supreme Court which have once again brought the debate to the fore. All this started when in the recent past Mr. Subramanium Swami approached the Supreme Court of India seeking directions on to CBI to probe in to the 2 G Scam. In his petition Mr. Swami maintained that he had written to the Prime Minister of India to grant sanction for the prosecution of Mr. Raja the then Telecom Minister but the Prime Minister did not grant the same, he further said that he had written to the Prime Minister in this connection in November, 2008. Till then no FIR was lodged in 2G Scam. One wonders as to how the Prime Minister could grant sanction to prosecute Mr. Raja merely on the petition of Mr. Swami. However, an FIR was lodged in 2G Scam in October, 2009 and the Supreme Court started to monitor investigation into the case. What followed is history.
The accused in 2G Scam where subjected to media trial on the one hand and on the other hand the Supreme Court of India while monitoring the investigation acted in a method and manner, that gave rise to many legal ponderables, for instance that one of the cardinal principles of criminal jurisprudence, ‘an accused is presumed to be innocent till his guilt is proved beyond doubt at the trial of the case’ was given a burial and an impression was created that whatever the investigating agency comes forthwith is the gospel truth and that as if the guilt of the accused was already proved, so much so that the concession of bail to the accused persons was also denied to them. Though the case even if proved, does not carry death penalty not even life imprisonment as punishment. In thousands of cases across the country which are heinous in nature and where the allegations are grave, but do not carry death penalty as punishment accused are enjoying the benefit of bail because in the legal system in this country bail and not jail is the rule, especially at the pre-trial stage. However, in the case under discussion again the cardinal principal of law relating to bail that (bail is not to be with held as a matter of punishment) was given a good bye. That the accused is presumed to be innocent and the presumption of innocence is in favour of the accused till proved guilty beyond any shadow of doubt and he has right to remain on bail as a presumable innocent person, all this and many other principles of criminal jurisprudence and criminal justice system received a burial.
Any one belonging to legal profession with even slight understanding of the criminal jurisprudence and criminal justice system, can safely say that in the heat and dust created by such cases as 2G Scam, the courts of the country have allowed the long respected cardinal principles of criminal justice system to become a causality and in fact have made these so.

 

A pertinent question stares one in his or her eye that as to what purpose of law and justice is served by keeping Kalanmozi in continued judicial custody, would she flee justice if she was allowed bail? Women are allowed bail even in cases which involve death penalty or life imprisonment as punishment. Kalanmozi is an ML P. and very well known person in her own rights and has very strong roots in society. Therefore, there is no reason in law to withhold her bail.
Another disturbing instance is Hassan Ali’s case, why is he still in jail, when the allegations against him are failing apart in spite of what the investigating agency had to publicize about him and in spite of very strong observations of the Supreme Court in his case. He was put to media trial much before his actual trial in a court of law would start and people were given to believe that Hassan Ali is involved in money laundering in a big way and that he is the king pin in the matter of stashing black money in foreign banks. He was publicized to be owing Rupees Seventy Two Thousands crores of income tax to the country by the investigating agency and in a rush perhaps the Supreme Court not only formed a S.I.T. to investigate the black money stashed in foreign banks but also at one point in time observed that why shouldn’t the government invoke terror laws against him. His bail was cancelled and he was jailed. His rights which the Constitution gives him were violated by the very judiciary which is supposed to protect tire fundamental rights of the citizens, which includes the accused persons also.
(The author is advocate J&K High Court)

ORIGIN: http://www.greaterkashmir.com/news/2011/Sep/15/judicial-activism-83.asp

Will court rulings on PF affect you?

with 2 comments

Income Tax rates by Country based on OECD 2005...

Image via Wikipedia

SONU IYER IN LIVE MINT

Are you a member of the Indian Provident Fund (PF)? Do you contribute 12% of your basic salary every month into the PF? Is your CTC (cost to company) divided into basic salary and various allowances such as conveyance allowance, asset allowance, education allowance and special allowance? Are you an HR manager in a company where you handle the above set of employees? If your answer is yes for any of these questions, then you may find this article useful.

After the specific inclusion of international workers in the Provident Fund Scheme in October 2008 and then further amendments in September 2010, the recent Madhya Pradesh and Madras high court rulings are the latest to add to the woes of employees and HR directors/chief financial officers of many companies.

Very briefly, the high courts have held that various allowances such as conveyance allowance and special allowance form part of basic wages for calculation of PF contribution.

Reinforcing existing law

What needs to be considered here is whether the high court rulings have laid down some new principles or are these more a way of reinforcement the existing law. To understand this, let us discuss the concept of PF contribution and basic wages in greater detail.

Under the Provident Fund Act, an employer is required to contribute 12% of the basic wages, dearness allowance and retaining allowance (if any) paid to the employees to the Provident Fund and Pension Scheme. The employee is required to match the contribution made by the employer.

Basic wages are defined to mean all emoluments in accordance with the terms of the contract of employment and which are paid or payable in cash, but does not include cash value of any food concession, dearness allowance, house rent allowance, overtime allowance, bonus, commission or any other similar allowance and presents made by the employer.Thus, the definition of basic wages in the Provident Fund Act seems to suggest the intention of including all cash emoluments unless the same is specifically excluded.

On this topic, the Supreme Court of India has ruled that any payment, which is universally, necessarily and ordinarily paid to all across the board is included in basic wages.

The Supreme Court has also mentioned that a payment that is specifically made to those who avail of an opportunity such as an overtime allowance is not to be included in basic wages. Also, any payment by way of special incentive or work or which is based upon contingencies is excluded.

Therefore, it is fair to say that the high court rulings only serve to reinforce the above principles laid down by the Supreme Court earlier. Subsequent to the high court rulings, the PF head office has issued internal directions to regional offices (available in the public domain) that the rulings of high courts may be utilized by the regional offices as per the merits of the case as and when similar situations arise in the field offices.

The concerns

This has caused apprehension among the employer community. Whether this would lead to increased PF audit activity? Whether employers would be asked to pay contribution on such allowances retrospectively? Whether this would lead to increased cost of PF in case of international workers and have an impact on their business plan?

The major concern here is of the employees who are worried since this would reduce their take-home salary drastically. In the current CTC structure which is generally followed in most companies, if both the employer’s and the employee’s share of additional contribution is deducted from the CTC, there will be a major impact on the employee’s take-home salary. While there will be some tax saving on the employer’s portion of contribution as the same is non-taxable, the deduction of the employee’s contribution under section 80C of the Income-tax Act will be limited to Rs1 lakh annually.

The way out: But the situation does not seem to be so bleak. Particularly, in case of local employees, the Provident Fund Scheme does provide a cap. There is merit in saying that employer’s and employee’s contribution to the Provident Fund Scheme can be limited to the base of Rs6,500 per month. However, if the employee so chooses, he may opt to make an additional contribution. Therefore, in respect of local employees, the employer can still take a position of limiting monthly contribution to the base of Rs6,500.

Still to be examined

Also, the generally accepted principle of not contributing on special allowance and certain other allowance on the basis of certain old PF circulars may also be examined. The argument that the earlier PF audits did not impose any requirement to contribute on such allowance may also be brought up.

For international workers, this needs to be examined differently as the limit of Rs6,500 per month does not apply to them. For international workers, what needs to be analysed is whether the test of universality needs to be applied for the company as a whole (including local employees) or for the international worker population only. Also, what needs an analysis is whether it can be argued that allowances paid to expatriate employees during the period of assignment can be considered as contingent as these are paid only while they are away from their home country and thus excluded from the scope of basic wages.

The writer is tax partner, Ernst & Young.

ORIGIN: http://www.livemint.com/2011/09/12215809/Will-court-rulings-on-PF-affec.html?h=B

HC notice to UT: Evolve fool-proof security system

leave a comment »

PUBLISHED IN THE INDIAN EXPRESS

In wake of September 7 bomb blast in Delhi, PIL exposes lax security measures for entry into High Court

The Punjab and Haryana High Court on Friday issued notices to Chandigarh Administration on a Public Interest Litigation (PIL) seeking directions to Chandigarh Administration to evolve and install a fool-proof security system.

Suggestions were made to install a system with modern electronic gadgets, equipments and Closed-circuit television (CCTV) Cameras on the pattern of security systems installed in the Supreme Court of India.

The petition has been filed by Advocate H C Arora.

Referring to the security system in the High Court, the petitioner contended that “…The security system in the High Court is quite lax. Anybody can enter from gate number 1 after assuring that he needs to get an affidavit attested from an Oath Commissioner. Anybody pretending to be a government officer can get unrestricted entry through the gates.”

“Entry is at will after lunch for all visitors. Any mischievous element can enter the High Court premises after posing as an advocate by wearing a black coat and a white collar band.”It read, “Laxity in the security system can pose a serious threat to the life and liberty of innocent citizens, including lawyers and the staff of the High Court.”

The petitioner has sought that the security system shall be set up in due consultation with the High Court on administrative side and the High Court Bar Association, in wake of the bomb blast which took place in Delhi High Court.

SC security measures

* Permanent passes with photographs to permanent members of the Supreme Court Bar Association or to outside advocates, issued at the instance of the Bar Association.

* Temporary passes issued at the spot to outsider advocates, after establishing their identity based on voter identity card, or the Enrollment Card issued by concerned Bar Counsel.

* Temporary separate passes issued in a similar manner to litigants, on the basis of strict proof of their identity.

* Entry being allowed to petitioners in person, only for the particular Court Room where they have to appear or watch the proceedings of their own cases, where after they have to leave the premises of the Supreme Court

* Frisking of all visitors, except those with permanent passes, and staff of the Supreme Court of India

* CCTV Cameras keeping account of activities of all visitors to Supreme Court of India

* No entry of persons other than lawyers to the bar rooms.

Constitution versus Reality in India

leave a comment »

PREAMBLE OF INDIAN CONSTITUTION

India has been surpassing or probably under-passing the vast public upsurge and constitutional multi-interpretations these days.

Our preamble of the constitution says “we the people of India adopt enact and give to ourselves this constitution” and at the same time it’s also said that “the parliament is supreme”. Now the crisis arises, who is supreme? “We the people” or “the parliament (which is elected by we the people)”?
But again, another question arises, who constitutes “we the people”. I? you? They?, who??
Did the crowd of people gathered in Ramlila grounds few days back, or the crowds in various other cities of the country, or the total of them combined, qualify to be called themselves as “we the people”?
May be “yes” may be “no”.
But let’s think again, who was supposed to be “we the people” during the time when this constitution was enacted in India? It will be quite indigestible to accept that the millions of illiterate, poor and starving population, who constituted almost 90 percent of Indian population during the time of enactment of this constitution, were aware of the literatures inside it. The constitution had the sanctity of “we the people” not on it’s technical provisions, but on its moral grounds, of it being designed and compiled by “our government” and not “the British”. Moral beliefs, that this constitution being made by “our” parliamentarians is “ours” and hence will work for our upliftment and empowerment; that this constitution will never defy our rights of living a happy life as the British did.
An extraordinary interpretation of the constitution by the Supreme Court of India said, “The basic structure” of the constitution can not be changed. So a new group of words “basic structure”! What is it? Basic structure refers not to the technical grounds of the write-ups in our constitution, but to the moral grounds of it; and the moral grounds of our constitution refers to the same degree of belief that “we the people” had during the time of its enactment.
The Anna hazare blow, which spread like a jungle fire in India, a few days back, made it very much clear that there is a widespread trust deficit regarding the holiness of our parliamentarians. The declination of the politician’s status has not been sudden, rather episodic. It has not only been the recent exposure of scams that fuelled the masses but also the irregularities prevailing in the government offices since the time our government took over from British.
They called it “the second fight for independence”. Was it?
This mass eruption of public anguish was, in a way, designed and planned by our constitution; after all it was not indigenous, it is a blend of copies of the constitution prevailing in western world, largely USA and UK. Not doubting of the great work of Baba Bhimrao Ambedkar, because it was the only option available with us after the British sucked off the majority of our physical and intellectual resources to the level of starvation. The constitution we adopted was no doubtably a good base for us to start with, but we missed “Indianizing” it sufficiently.
Even though we added directive principles of states policy in our constitution, we have been sluggish in implementing it. Didn’t we miss the level of accountability and cross-interaction of people with governance as it was during The great emperor Ashoka’s reign? Didn’t we miss out the mechanisms to judge the morality, holiness and capabilities of a “mantri”(minister) before assigning him the seat as was mentioned in kautilya’s Arthashashtra? Didn’t we miss the mechanisms adopted by The great Guptas, who almost proved their reign to be in comparison with the reign of The great Lord Ram?
India’s glorious history has not been only gold and diamonds, but much more than it, we told the world how to administer such a large area of land with the highest degree of happiness, faith and trust; and it’s a strange irony today that we ourselves have lost a grip on it.
The British with about 200 years of colonial exploitation tried to flush out all our glorious legacies including gold and diamonds, and embedded a new terminology in our dictionary called “British legacy”. I call it a “British interference”. It’s the result of the same “British interference” which made us loose our links with our glorious legacy of administration.
In my school exam, I once copied an answer from my neighbor’s sheet, the teacher while checking the papers asked me to stand up, gave me my answer sheet and told me to explain the meaning of that answer. Reluctantly i tried to explain it in my words, but was constantly looking here and there in panic and was praying for no cross questions. I am sure I was neither able to understand nor explain completely what I had written.
Is the situation same here? Here in the parliament?
Justice Saumitra sen, being in the middle of the way of his removal through the parliamentary procedures, offers his resignation, leading again to a debate whether to his removal proceedings should still be processed or it should be suspended out? Who knows the answers?
We the people? The parliamentarians? Or the mentors of the original constitution?
Or if no one knows, let’s give it to the Supreme Court to think about what our basic structure of constitution says.
There are laws prevailing in our country which still insist on payment of penalties of some 10 rupees for certain crimes. Who will give an explanation to it? The Supreme Court?

I am afraid it may not.

Is it high time we make a substantial change in our constitutional books and encrypt the basic structure of governance as it was in our legacy?
India is not merely a head count of 1.2 billion people, neither it’s only some thick books of history, nor is it only the 7thlargest landscape in the world. India is in blood of its people, and that blood runs from the great lord ram to Guptas, Marathas, cholas, chalukyas and Mauryas; and Indians will not accept any other form of governance except what they have been offered in the ancient past. The recent mass Indian upsurge with its active interference in parliamentary affairs has yet been an example for it.
Calling it the second war of independence?
It is said, defeating “your enemies” will give you physical independence but defeating the “enemies in you” gives you total independence. So calling it the first war of independence, too holds a strong justification.
But the question still persists, was this rise for a war of independence, or rather a yet another stronger demonstration of the episodic resentment? Will the “British interference” still cast its shadows on our constitutional provisions? Or the gestation period “Indianization” is over?
India will surely and compulsively modify its long hailed constitution to offer the basic structures of it in genuine reality. The time seems close. But may not be close too.
COURTESY: OYE TIMES

Indian Supreme Courts new norms:Law degree compulsory for legal correspondents

with 2 comments

The supreme court of india. Taken about 170 m ...

Image via Wikipedia

 

Sabir shah in THE NEWS

If the widely anticipated new Indian Supreme Court reporting norms are enforced in true letter, the new ruling is likely to disqualify at least 80 per cent of the journalists covering the Apex Court proceedings in the world s biggest democracy.
According to Thursday s (August 25, 2011) web edition (Livemint.com) of India s Daily Mint, a business newspaper published by Hindustan Times Media (the publishers of The Hindustan Times) in collaboration with the prestigious American broadsheet Wall Street Journal, the recently promulgated Supreme Court s revised norms for accreditation of the legal correspondents in the Indian apex court makes a law degree mandatory for journalists covering the top court proceedings.

The website states: Issued by the court on Saturday, the norms require that permanent and temporary accredited print journalists have a professional law degree and at least seven years of experience. Electronic media reporters need, apart from the law degree, at least three-and-a-half-years of experience. The circular did not set a deadline for the norms to come into force. Court officials didn t throw light on when the circular would come into effect, when asked on Tuesday. The new norms follow instances in which faults were found in coverage. Two of these arose from coverage of the Vodafone tax dispute. Vodafone lawyer Harish Salve complained to the Supreme Court that a Press Trust of India (PTI) report on 10 August had misquoted him.

It further said: Salve had argued that Vodafone could avoid tax as tax avoidance was permissible under law. Indian income-tax authorities have alleged that Vodafone evaded tax by structuring its $11.2 billion transaction to buy out Hutchison s Indian cellular business through tax-saving routes. Salve spent more than a day demonstrating to the bench the difference between tax avoidance and evasion, and that his client had acted in accordance with the law. The court sought a response from PTI on an application made by Salve after the agency s report.

The Livemint.com reported: Chief Justice S.H. Kapadia s three-judge bench asked PTI to file a detailed affidavit explaining whether its reporter was present in the court at the time Salve made his argument. The court reportedly observed that norms for journalists needed to be revisited in light of the incident and what it said were other recent inaccurate reports. Previously, Kapadia had expressed displeasure at a 15 December news report in a national daily that said the judiciary wanted to retain one per cent of the Rs2,500 crore deposit made by Vodafone to the court s registry.

It further read: The report suggested that a cash-strapped judiciary was trying to source funds from novel methods such as these. Kapadia had then said: People write whatever they want. But the court did not initiate any action against the reporter or the newspaper. Different benches of the court have, in the past, pointed to inaccurate or sensational news reports. However, Mint could not immediately ascertain the immediate reasons for the revision of the norms.

It is noteworthy that it is for the first time in the Indian journalism and the judicial history that a law degree has been declared mandatory for all reporters covering the Apex Court proceedings, as till now, reporters without a law degree were entitled to get a temporary six-month pass and cover the court proceedings.

While Clause 6 of the rules deals with temporary accreditation for working journalists desiring to report regularly the Supreme Court proceedings, Clause 8 deals with temporary reporting facility for journalists who can access the court for a day/short duration or for a specific case.

Clause 10 says grant of accreditation will be the sole discretion of the Chief Justice of India and his decision in this regard shall be deemed final and binding on all.

Meanwhile, Clause 11 says that the accreditation, whether permanent or temporary, can be withdrawn, at any time, without assigning any reason.

The new requirement of the Indian Supreme Court has evoked mixed response from leading journalists and solicitors across the border.

The Bar and Bench News Network of India, a comprehensive news and analysis portal for the country s legal professionals, states in one of its recent editions: R. Jagannathan, Editor-in-Chief, Firstpost said: The requirement that Supreme Court proceedings can only be covered by people with a law degree defies common sense. If only chartered accountants can comment on company results, if only doctors can report on medicines and hospitals, all reporters would need to do another five years of specialised courses – which is a waste.

The portal of the Indian legal professionals, further quotes R. Jagannathan as saying: You do an MBBS to become a doctor, not to write about medicine. Restricting court reporting to law degree holders would mean restricting the profession to a closed cabal of law insiders. The law expert can also miss the obvious – since ultimately court decisions need to pass the common sense test, which requires no law degree. If the reasoning behind this new requirement is that reporters sometimes misrepresent what the court says or rules, maybe the Supreme Court should mandate a short, one-day course for court reporters which focuses on the do s and don ts or court reporting. A law degree is a waste of everybody s time.

The portal maintained: Speaking to Indian Express former Chief Justice of India V N Khare said: This is not fair. When on one side you are talking of transparency…why is even a law degree necessary? You, as a correspondent, are not going to the SC to argue a case but to report. Journalism is a profession by itself. So when you report a matter concerning engineering, do you as a reporter need to have an engineering degree? So how many degrees do you need?

It quoted P. George Giri, Advocate-on-Record in Supreme Court, as viewing: It is a good move on the part of the Supreme Court of India. Prevention is better than cure. The norms introduced by the Supreme Court are only a reasonable restriction on the press freedom. Otherwise, there is every possibility to spread unwanted news by the media; by the reports of the young and energetic journalists, without properly understanding the court procedures.

The Bar and Bench News Network of India also quoted Rohit Panikker, correspondent with the Times of India, as asserting: It s important that every journalist knows in depth about what he is reporting; and ideally, a law background enables them to give the story a better perspective over straight reportage. But then, that also brings forward the question of what would happen to those journalists who have built their reputation over the years in reporting SC proceedings without having a law degree. If that s the case, does a film reporter require a filmmaking degree to go about his work?

http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=64908&Cat=6