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I learnt today that apparently the Chief Justice and his office do not constitute a ‘public authority’ under the Right to Information Act.

This, after the Supreme Court petitioned the Delhi High Court against an order passed by the Central Information Commission asking the CJI to disclose as to whether the judges of the Supreme Court were disclosing their assets to him.

 

In a brief background to the situation, a resolution was passed on May 7, 1997 requiring every judge to declare to the CJI assets including properties or any other investment in the name of their spouse and any person dependent on them.  Earlier petitions regarding the disclosure of assets of judges under the RTI were dismissed on the ground of such information not being in the ‘public domain’. However, in this order, the CIC did not ask for the disclosure of assets but as to whether the practice set out in the resolution of 1997 was still being followed.

 

In the petition before the Delhi High Court, the Supreme Court (as a petitioner) stated that this practice was only ‘informal’ in nature and that there was nothing in the Constitution or any other law ‘mandating’ the judges of the Supreme Court to disclose their assets to the CJI. I now know that the Delhi High Court has issued a stay on the CIC order and the next date of hearing is set on 12th February 2009.

Questions are raised when the most powerful organ of the Government sheds and denies any degree of accountability upon itself. In Association of Democratic Reforms v. Union of India, the Court had asked candidates standing for elections to disclose their assets stating that in a democracy, those in power must behave responsibly and know that they ultimately work at the behest of the people. Much earlier, it had asked IAS officers to disclose their assets and ordered authorities to keep a check on them.

At both the above instances, the Court judged on the basis that the Right to information was a constitutional and fundamental right of the citizens; thus holding that in the case of the legislature and the executive, this right must not be denied to the citizens. The Right to Information Act was passed to give effect to this constitutional right.

However, when the Apex Court denies this responsibility upon itself and ensures its performance among other organs of government, it is using double standards. There is a tint of supremacy of the Court over the Constitution here which I would say is no where mandated by the Constitution. In the Hamlyn Law Lectures, MC Mehta had stated,

“there is no theory of judicial supremacy in India, but that of Constitutional Supremacy”.

So if there does exist a theory of Constitutional supremacy in India, surely the Court should not place itself above the Constitution. If the argument is that the Right to Information Act does not look upon the Court as a public authority, surely under the rights guaranteed by part III, this disclosure of assets can be achieved; just as done in the case of the executive and the legislature (In both cases, the RTI Act did not exist).

V Venkatesan of Law and Other Things wrote a post here on the CIC decision that was passed on the 6th of January 2009. He says;

“Although the decision pertains to the RTI question on the declaration of assets by the Judges of High Court and the Supreme Court, it has set an important precedent to make the Higher Judiciary truly accountable. It will be unfortunate if the Supreme Court appeals against the decision in the High Court, in which case, the Judges hearing the appeal may not be able to decide the appeal objectively in view of the apparent conflict of interests.”

I will not be faltering when I say that I share the same concern. 

 

 

NewsWire. 

Pathik sends us this Post;

The Union Law and Justice Minister H R Bhardwaj announced recently that 3,000 gram nyayalayas (village courts) would start functioning within a month (by March) across the country. This is an important step in decentralizing the justice delivery system and to promote expeditious adjudication and resolution of disputes. This step towards decentralization at the lower judiciary level, where over 2.5 crore cases are pending disposal, will attract more attention especially in light of the law commission’s recent suggestion of setting up circuit courts or benches of the Supreme Court in different parts of the country.

The proposal to set up 3000 gram nyayalayas was announced by Mr. Bhardwaj at a conference organised by the Associated Chambers of Commerce and Industry of India (ASSOCHAM) on the “Need for Strengthening Alternate dispute Resolution in India.” A budget of 600 crores, which the Finance Ministry is willing to release, has been sanctioned for this project. Each Court would end up with a corpus of around 20 lakh rupees.

This announcement comes subsequent to the passing of the Gram Nyayalayas Bill, 2008 by the Parliament on December 21, 2008. The bill had earlier been passed by the Rajya Sabha on December 17, 2008. The essential feature of the bill is that it provides for holding of mobile courts and conducting proceedings by the ‘Nyaya Adhikari’ (Judicial Magistrates First Class) by periodically visiting the villages.

The main objectives of the Bill can be summarized as follows:-

a)      To provide speedy, affordable and substantive justice to the poor at grass root level in the rural areas at their doorstep.

b)      Gram Nyayalaya will act as Subordinate Court at Intermediate Panchayat level.

c)      The Gram Nyayalayas so established will be in addition to the civil and criminal courts established under any other law  for the time being in force.

d)      The Central Government will bear all the non-recurring expenditure for setting up of the Gram Nyayalayas and will bear half of the recurring expenditure for three years after setting up of the Gram Nyayalayas.

e)      The Gram Nyayalayas will be empowered to deal with both criminal cases as well as civil cases as per the procedure laid down in the Gram Nyayalayas Bill

This would ensure that inexpensive and efficacious justice is delivered to the remotest areas possible

 

 

 

The papers contain news items of effectiveness and lack of implementation of the smoking law. It seems that movie stars Ajay Devgan and Salman Khan were fined in Chandigarh for smoking in public places.

However, I would like readers to note that a “law” was not that only resolve to impose an anti-smoking ban around the country. Here I’m referring to a judgment written by Justices AR Lakshmanan and KN Kurup in K Ramakrishna v. State of Kerala, AIR 199 Ker 385.

It is a judgment that is brilliant at all levels. The case came up as a Public Interest Litigation asking the Court to give directions against smoking in public places keeping in mind the dangers of passive smoking. The Court went on a list the dangers of smoking and the harm caused to passive smokers by the exposure to Environmental Tobacco Smoke (ETS). After concluding that such an act is harmful and that something must be done to prevent it, the Court went on to discuss the relief asked for by the petitioner;

“22. Taking note of the alarming scenario as discussed above, the question then is, what is the relied that this Court can grant to the petitioners ? Can the Court direct the legislature to enact a law banning tobacco smoking?”

The Court stated an emphatic ‘no’ and said that it is not authorized to direct the legislature to enact a law but what it can do is to grant relief by way of a writ of mandamus to the Government and its officials including the police to enforce existing laws which is quite sufficient to safeguard the interests of the public against smoking.

So what are these existing laws that can be used to prevent public smoking ?

Sections 268 and 278 of the Indian Penal Code which cover the crime of public nuisance. According to these Sections;

“A person is guilty of public nuisance who does any act or is guilty of an illegal omission which causes common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”

Thus then stating that smoking in public is a “public nuisance” in terms of it being a common interest and causing harm to every one. Further that according to Section 278 a fine of Rs. 500/- may be prescribed for the violation of this offence.

But how then may this provision be enforced to prevent public smoking ?

It must be noted that Section 278 of the IPC is a non-cognizable offence. Since the offence alleged is non-cognizable, the police has no authority to arrest the offender without an order from a magistrate or without a warrant.

The Court said that such an order to prevent public smoking can be given by the Magistrate under Section 133 of the Code of Criminal Procedure stating that a Magistrate can give a conditional order for the removal of nuisance from any public place. Furthermore, a disobedience of this order may extend to a fine of Rs 200 or simple imprisonment for a period of one month or both.

Quoting Krishna Iyer J. in Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622, the bench stated;

“Therefore, when a Magistrate has, before him all the information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act.”

Thus, by showing that there is conclusive evidence of public nuisance being caused by smoking in public places, an order by a Magistrate is also enough to prevent smoking rather than enacting a law to do the same.

…..

Another reason why this judgment is so good is that it has not made those sudden statements that are not substantiated by fact, law or reason. Every statement is adequately supported by law and fact and the reasoning given by the judges cannot be put to question.

I was deeply moved to say the least after reading this article posted below. The Author is the editor of the Srilankan Sunday Leader and was shot dead. This article was published in the Guardian three days after his death.

This blog has been a believer in free speech and this article helps us in spreading that message.

……………………………………………

I HOPE MY MURDER WILL NOT BE SEEN AS A DEFEAT OF FREEDOM BUT AN INSPIRATION

Lasantha Wickrematunge

No other profession calls on its practitioners to lay down their lives for their art save the armed forces – and, in Sri Lanka, journalism. In the course of the last few years, the independent media have increasingly come under attack. Electronic and print institutions have been burned, bombed, sealed and coerced. Countless journalists have been harassed, threatened and killed. It has been my honour to belong to all those categories, and now especially the last.

I have been in the business of journalism a good long time. Indeed, 2009 will be the Sunday Leader’s 15th year. Many things have changed in Sri Lanka during that time, and it does not need me to tell you that the greater part of that change has been for the worse. We find ourselves in the midst of a civil war ruthlessly prosecuted by protagonists whose bloodlust knows no bounds. Terror, whether perpetrated by terrorists or the state, has become the order of the day. Indeed, murder has become the primary tool whereby the state seeks to control the organs of liberty. Today it is the journalists, tomorrow it will be the judges. For neither group have the risks ever been higher or the stakes lower.

Why then do we do it? I often wonder that. After all, I too am a husband, and the father of three wonderful children. I too have responsibilities and obligations that transcend my profession, be it the law or journalism. Is it worth the risk? Many people tell me it is not. Friends tell me to revert to the bar, and goodness knows it offers a better and safer livelihood.

Others, including political leaders on both sides, have at various times sought to induce me to take to politics, going so far as to offer me ministries of my choice. Diplomats, recognising the risk journalists face in Sri Lanka, have offered me safe passage and the right of residence in their countries.

Read the rest of this entry »

EJIL Talk reports of the decision of the European Court of Justice in Kadi as one destined to become a landmark in the annals of international law. While the blog compares this decision to one of the US Supreme Court in Medellin, I propose to give another view point of this decision in terms of having a standard of judicial review in International Law.

Pursuant to the UN Security Council resolutions on terrorism and funding of terrorist groups, the Council of the EU adopted a regulation ordering the freezing of the funds and other assets of the persons and entities appearing in a list annexed to the regulation. In this list were Mr. Kadi, a national of Saudi Arabia, and Al Barakaat, an organization established in Sweden, whose assets were frozen as being allegedly associated with Al-Qaeda. These two ‘persons’ challenged the regulation as being violative of their fundamental rights and the European Court of Justice was called upon to decide the question in appeal.

What the appellants were essentially arguing for was a standard of judicial review for regulations framed under International law provisions. Before this, the only reminiscences of judicial review existed in Article 53 of the Vienna Convention on the Law of Treaties stating that a treaty may be violated/breached if it were against a jus cogens norm. Even this provision did not declare a treaty invalid.

It may be argued that these regulations did not have the status of international law and that EU Council regulations should have the status of domestic law. If this be the case, then my argument and inference fails. However, I am inclined to think otherwise. The Court stated that ;

“the Court  concludes that, in the light of the actual circumstances surrounding the inclusion of the appellants’ names in the list of persons and entities whose funds are to be frozen, it must be held that the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected.”

And then asked the EU Council to remedy such infirmities in the Regulation.

Noted points made by the Court include;

“the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement”

And finally,

“any judgment by the Community judicature deciding that a Community measure intended to give effect to … a [UNSC] resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.”

In as much as the Court has tried to be rational and not contravene the UN Resolution per se, this decision has a profound impact on international law and I would say that it is a welcome change. More often that not, we have seen International law taking sides and being hypocritical (as in Israel) and in that context blatantly violating due process. This judgment should do some good then.

EJIL Talk says that they would be putting up a detailed analysis of this case in a while. The opinions in this post come from an amateur like myself and it would be interesting what that post would have to say.