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Soli Sorabjee’s writ petition in the Supreme Court asking it to order the government to take measures to effectively deal with terrorism has created quite an interest amongst legal circles. Law and Other Things has detailed posts on it and Abhinav Chandrachud gives and interesting analysis on the ‘Right against Terror’ here.

I also have written here that the petition rests on the rationale that there is a Constitutional duty of the State to protect its citizens under Article 21; where as the Court earlier hasn’t stated any such duty.

In this post, I would like to explore another dimension to this writ. If the contentions in the writ be accepted then it is my opinion that it would have serious consequences on the way the government is run under the Constitution. My argument is that while judicial interference in legislative and executive functions already takes place, doing so in matters of policy and security of the State is warranted neither by the Constitution nor Constitutional law and doing so would belittle the idea of constitutional supremacy.

A reading of Article 355 would allow us to infer that it is the foremost duty of the central government to defend the borders of the Country. This also includes a duty to prevent any internal disturbance and maintain law and order. However, in as early as 1959, the Supreme Court in Memon Haji Ismail’s case held that declarations of war & matters concerning the defence of India are instances on which a Court cannot form any judgment. ‘defence of India’ could include both external aggression and internal disturbance. It could also be that they are to be considered as matters of policy and the Court cannot in any way tell the centre as to how the Government should be run.

Having established that the defence of the Country is exclusively in the realm of the Central Government, in State of Rajasthan v. Union of India, the Court held that it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted to the Constitution to other departments of the State which may be better equipped to perform them.

“Questions of political wisdom or executive policy only could not be subject to judicial control. So long as such policy operates in its own sphere, its operations are immune from judicial process.”

Thus, asking the Centre by a writ to better equip the police and forces with the latest weapons would be interfering into a realm exclusive to the executive.

But in my opinion, the starkest revelation to the dangers of what may happen have been put forth by Justice BN Shrikrishna’s article titled ‘Skinning the Cat’ (2005) 8 SCC (jour) 3 where in he says;

“I wish to point to a recent and disturbing trend of using the judiciary to second guess unambiguously legislative and executive powers. Indeed, our judges have succumbed to the temptation to interfere even with well- recognized executive powers such as treaty making and foreign relations. …

One Shudders to think whither this trend could lead- whether, for example, the constitutionality of a declaration of war or peace treaty (or matter concerning the defence of the Country) could also be questioned in a Court of law? If the courts were to strike down the peace treaty as being unconstitutional, would the armed forces be compelled to pursue the war under judicial mandamus?

Indeed my mind boggles at such eventualities, however improbable they may appear, given the new found enthusiasm for judicial activism in areas that are inarguable no pasaran (they shall not pass) for the judges”

Perhaps Justice Shrikrishna’s fears may just come true with this case.

 


Sarabnanda Sonowal v. Union of India, (2005) 5 SCC 665.

(1977) 3 SCC 592

 

 

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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. 

 

 

Another ridiculous judgment by the Supreme Court.

In Reliance Infocomm Ltd v. BSNL, (2008) 10 SCC 535, the Court was called upon to decide whether “Unlimited Cordless” service is covered under the definition of WLL(M) service as defined in Regulation 2(xxviii) of the Telecommunication Interconnection Usage Charges Regulation, 2003 which defines WLL(M) as limited mobility service using WLL technology within a Short Distance Charging Area (“SDCA”). I know it may be a little complicated to understand but please do bear with me.

What is interesting to note in this judgment is that in attempting to refer to qualified definitions of the terms used, the Court cited Wikipedia and other internet sources as authorities which till today was totally unheard of.

According to Wikipedia, Fixed Wireless Terminal (“FWT”) units differ from conventional mobile terminal units operating within cellular networks – such as GSM – as FWT or desk phone is limited to a permanent location. Therefore, all the above literature and reference books indicate that FWA is a service which is limited to permanent location. The significance of FWA is that it dispenses with the last mile wireline connectivity and to that extent it is cost effective. The wireless access point is a device that connects wireless communication devices together to form a wireless network. Wireless Access Point (“WAP”) usually connects to a wired network.(see: Wikipedia)

33. According to Whatis.com’s ‘Encyclopedia of Technology Terms’ the term ‘fixed wireless’ refers to the operation of wireless devices or systems in fixed locations such as home and offices. They derive their electrical power from the utility mains, unlike mobile wireless or portable wireless which are battery-powered. Although mobile and portable system can be used in fixed locations, their efficiency is compromised when compared with fixed systems. One of the important assets of fixed wireless that subscribers in remote areas can be brought into a network without the need for new cables or optical fibres across the country side.

This exposes a great fallacy in the working of the Court. The Court must place reliance only on those documents that are authoritative and conclusive in nature and not information that is susceptible to change. It should be known that sites like Wikipedia can be changed time and again by any user. After reading this judgment, I am seriously considering becoming an active contributor to Wikipedia. Who knows, I am be cited sometime.

As a confession, I am a big fan of Wikipedia, but think that the Court expressing itself in this manner is ridiculous.

In September, the Virginia Supreme Court ruled that the State law that prosecuted those involved in sending spam emails was unconstitutional and in violation of the 1st Amendment of the Constitution that guaranteed free speech. The judgment used a rationale that doesn’t make much sense to me ;

“As Justice (G. Steven) Agee said in the court’s opinion, if the Federalist Papers were written today and disseminated by e-mail, the sender would be guilty of a felony under Virginia’s anti-spam statute”

With more than 1 billion spam emails sent out in a year, it is estimated a spam network rakes in somewhere to the amount of $3.5 million each product. While the statute has been declared unconstitutional, the Attorney General for the State has decided to take the matter upto the Supreme Court and ask the decision to be reversed.

Earlier, the ACLU president commenting on the judgment stated;

“”The internet is a uniquely democratizing public forum that provides ordinary people with an outlet to express a wide variety of opinions. Some of those views may be controversial, making anonymity or the use of pseudonyms essential for giving those ideas fair consideration in public debates. Speech on the Internet deserves no less First Amendment protection than in any other medium.”

With each passing day, my conviction that the Supreme Court of India has gone beserk in its handling of issues gets confirmed to a greater degree. What was the Court thinking when it admitted the PIL by Soli Sorabjee asking the centre to implement rules for better equipment and reforms to the police ?

The petition is founded on the false ratioanale that Article 21 confers the positive obligation on the State to protect the people and that presently the state authorities are not equipped to do so. The Constitution, literally read, does not mention this and looks at Article 21 as a negative obligation. Added to this is the fact that incorporation of positive obligations under Article 21 is the creation of judicial decisions itself. The first question then is whether there is an uncontestable duty of the state to protect its citizens under the Constitution. The question specifically has never been held or dealt with by the Supreme Court. Infact, the only instance where this was found was in a 1996 Delhi High Court judgment of Bhajan Kaur v. Delhi Administration, CWP 1429/1996 . In that case, the Court held;

“the expanded meaning attributed to Article 21 of the Constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardised or  endangered.”

One may argue however, that references to public order, security of the state and the presence of Article 355 bring out this duty to protect. True, but this in no way makes the issue as unequivocal as the petition makes it to be.

More so, by asking the Court to interfere in the Executive’s handling of terrorism, it is transgressing into the very idea of separation of powers and constitutional limitations. Relevant in this regard is the decision of the Court in Asif Ahmed v. State of Jammu and Kashmir, (1989) Supp 2 SCC 364 stating,

“Although the doctrine of separation of powers has not been recognized in India in the rigid sense, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive and the judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to the other. The Judiciary has no power over the sword or the  purse.”

But in Vineet Narain v. Union of India, AIR 1998 SC 889 the Court ignored this idea and ordered the CBI to handle the investigations into the corruption of politicians in a manner that it thought fit. This was the starting point from when the Court started interfering in decisions of policy by the executive and the working of Investigative agencies. Now, with the way things seem to be going, the Supreme Court is going to issue a mandamus to the centre asking it to equip the agencies with arms and weapons as it (the judiciary) deems fit. Nothing actually gets more ridiculous than this.

My understanding is that this action by the Court has got nothing to do with the Constitution but our judges engaging in populist actions so as to get the support of the people. I would advise readers to read Larry Kramer’s article on Popular Constitutionalism wherein he makes the argument that most often than not, Courts transgress written constitutional principles and form their own opinions that take the shape of constitutional law only to bring forth the image of the Court as a defender and protector of the people. The very idea of engaging in something like this is flawed and injures the working structure of our Government.

People argued that the Indian Supreme Court went on such a path to shed its image after ridiculous decisions like ADM Jabalpur v. Sivakant Shukla given during the time of emergency. This apparently was one of the reasons for Bhagwati J to introduce PIL in SP Gupta v. President of India. If this is true, then three decades are more than enough to show a degree of remorse for those actions. The present state of unprecedented actions by the Court are a display of how powerful our Court actually is and it would be interesting to see if the Centre would have the guts to put its foot down and ask the Court not to be involved in its business.

…………………….

My essay for Constitutional Theory titled “Despotism in a New Form: Judiciary and the Constitution in India” discusses the manner in which the Court has gone on to engage in judicial activism and the rationale it uses to do so. I then seek to answer the question as to whether we to have a system of judicial supremacy in India even though the Court explicitly denies it. The essay may be found here.

Prof. Larry Kramer’s recent book on Popular Constitutionalism may be downloaded here.

News articles on the issue;

1) SC asks Centre about Equipment for Cops

2) Sorabjee moves the SC

3) SC notice to Centre on PIL to equip police