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With close to 70 lakh crores ( 70,000,00,00,00,000 ) of unaccounted public money stashed by politicians, bureaucrats and the rich in swiss banks and the like abroad, how does one get hold of that money ? The answer probably could be the latest writ petition in the Supreme Court wherein the petitioners have asked the Court to interfere in compelling the government to take actions to get the money back to India. While it is a noble cause, I opine that the Supreme Court interfering in this may not work.
To understand, let’s take the case of Germany and LGT Bank of Liechtenstein. In January 2006, the German Government offered 5 million Euros to a bank officer of LGT bank asking him to give out confidential data of the clients and accounts of LGT bank. After a successful transaction in this regard, the German Government then went on to catch of the tax evasionists responsible and started prosecuting them. The amount of fraud is said to have exceeded 5 billion Euros now.
In its aftermath, the bank officer has been offered asylum in Germany and the German Government is now putting pressure over the European Union and the OECD to take measures into compelling these banks to be more transparent. In times of recession, this may be fruitful, but nevertheless, none of these banks can be compelled to give up the money that they own. (See timeline and EU Actions here)
Coming back to India, if we are to create a parallel to the German situation, the following issues would arise;
- Can the Indian Government pay somebody to do an illegal act in another country ?
- Going further, can the Court issue a writ of Mandamus to ask the Government to do such an illegal act?
- Even if the above can take place, there is no way of recovering the money but only to use the data to prosecute those for tax evasion. Neither the executive or the judiciary can do otherwise.
While one possible solution could be that while prosecuting these tax evasionists/ those holding up the money in these accounts, we offer them an immunity as an incentive if they get back the money; this could possibly lead to litigation and a replay of the Bearer Bonds case (RK Garg v. Union of India , 1979 SC). In the sense that, Indians charged for evasion in India would allege that this is arbitrary, unfair and against the mandate of Article 14 and is creating a difference between those stashing money abroad and evading income tax and those being prosecuting for evading income tax in India.
This is a complicated issue and I don’t think the Court’s can and should interfere. In the debates conducted, the speakers did come together on the fact that the Constitution does authorize the Court to interfere and ‘make law’ but they still agreed that it must keep out of policy matters and things it expressly cannot do and implement. It would then be interesting to see the way the Court handles this PIL.
Mathew J. in Keshavananda Bharti v. State of Kerala quoted Lord Reid to say,
“.. there was a time when it was almost indecent to suggest that judges make law- they only declare it. But we do not believe in fairly tales anymore and the function of this Court is not only to declare but also to make law that is binding on all the Courts of this Country”
¬The following are to be addressed in the proposition;
1) In an era of judicial lawmaking, should the judiciary still/still not be a State under Article 12 of the Constitution ?
2) Does the Constitution empower the judiciary with the power of law-making?
3)Whether the function of the Supreme Court under Article 141 is Constitutive or Declaratory in nature ?
4) Judicial activism v. judicial restraint.
“To treat constitutional law same as the Constitution would then mean to submit to government by judiciary which is surely not intended in any democratic nation. Such would be utterly inconsistent with the very idea of rule of law.”
The above is Abhraham Lincoln’s criticism of the US Supreme Court decision of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). Chandrachud J. in In re Special Court’s Bill termed this decision as the ‘great usurpation of power’ and cautioned the Court.
The following issues are to be addressed in this propostion;
1) What role does the Basic Structure doctrine have in defining the contours of judicial supremacy in India?
2) The legitimacy of the Court as a undemocratic/unelected body making the law.
3) The legitimacy of judicial decisions when the Court introduces/ ‘reads in’ a concept not existent in the Constitution, i.e. ‘due process of law’ in Article 21 despite the framers specifically rejecting this concept.
3) Ancillary issues such as the power of contempt, the Court appointing its own judges, interfering with the working of the parliament/ assemblies etc…
It took over three months to materialize, but its finally here, and with a bang. The first in the Socio-legal Debate series was held at the M.K. Nambyar SAARCLaw Centre in NALSAR. The theme – ‘Role of the Supreme Court in Indian Governance’ – was extensively deliberated and argued upon by three eminent members of the academia and the Bar:
1. Mr. Shyam Divan, Senior Advocate, Supreme Court of India
2. Mr. Raju Ramachandran, Senior Advocate, Supreme Court of India
3. Mr. Sudhir Krishnaswamy, Professor of Law, NUJS – Kolkata.
The Debate was held over two sessions in the day, with the speakers discussing two propositions closely related to the theme. The event, we are proud to say, went down very well with students and faculty in NALSAR and the response was extremely encouraging.
At this juncture, we are thankful to LexisNexis Butterworths Wadhwa & Co, and NALSAR authorities for providing valuable financial and administrative support in conducting the event. If this Debate was anything to go by, the next one (to be held in July 2009) promises to be bigger and better.
Photos and videos (of the entire Debate) will be uploaded in a couple of days on this site.
That the Constitutional protection under Article 22 providing every detainee the right to be represented by a lawyer of his/her choice is sacred and held to be the foundation of our legal system. So much so, that the Court has stated that an accused may even be acquitted or a mistrial may be declared if found that he did not have a fair trial. (SD Kohli v. State of Maharashtra, jdg dtd. 18/12/2008 )
That the Advocates Act bars anyone from denying to take up a case on the ground that the accused had actually committed the crime.
That in light of this; Kudos to Anjaji Waghmare for having the courage to represent Ajmal Kasab.
I had earlier written about the Catch-22 situation about providing legal aid to Kasab. While the Shiv Sena has already attacked her house and created a ruckus, there was some deliberation in Court as to whether she would continue with her client. The Court has now provided security to her.
Readers may read Kevin John Heller’s post on “Why I am Advising Radovan Karadzic?” for a possible explanation why lawyers defend known criminals.