An assertion by Civil Society,in the light of the Anna Hazare Imbroglio, Guest Post by Devdas T M,2nd year LLM, NUALS.

Revisiting Popular Sovereignty;

(An assertion by Civil Society,in the light of the Anna Hazare Imbroglio)

Guest Post by Devdas T M,2nd year LLM, NUALS.

The main virtue of democracy is that it places common man at the center stage and give change to participate in the decision making process. A true democracy is directly related to liberty, equality and fraternity, which are the ideals of French Revolution which are incorporated in the Constitution of India as Justice-social, economic and political. In many European Countries democratic ideals and values grew in response to the oppressive rule of absolutist monarchs.Indian democracy taken its shape through agitation against oppression from outside rulers, even though there are lot of contradictions and issues with in India itself.  In this aspect, India is different from many other countries where form of polity and nature of recognized rights were formed as a result of social change through addressing the social and political contractions and issues. We adopted the Constitution of India which stresses on popular sovereignty, established various democratic institutions and envisages a mechanism of social change and social engineering[1] through such institutions. In our Constitution which envisages a limited government, every ideals and institutions within the framework of the Constitution is limited by the provisions of the Constitution, by proper checks and balances.  Our Constitution starts with the phraseology “We the People of India…” is an emanation of the doctrine of popular sovereignty. But this phraseology used in our Constitution is also has some limitations and institutional framework. It is pertinent to note that institutions have a permanent existence, outlives the people and different from individuals[2]. Our constitution identified certain institutions, legitimizes, clearly laydown rights, functions and obligations and also demarcate their boundaries. It is also important to observe that there institutions are not at the mercy of people in all the times, except a few and our constitution recognizes the situations in which the people can exercise their sovereign power. So the popular sovereignty has its own limitations, and our Constitution did not recognize any concept like absolute sovereignty.

Assertion of Civil Society: Whether it is legitimate or not

As I have already pointed out civil society has no absolute rights to claim certain rights unless and until it was recognized and legitimatized by the law and the Constitution of India. Our Constitution recognizes certain institutions and assigned them certain functions and rights, and no other body except specifically provided has or cannot assert certain rights and powers. Our Constitution follows the division of powers or separations of power, but not in the strict sense. Even though the Constitution provides for certain institutions like Parliament, Executive and Judiciary at the Centre and State level, and demarcates their powers, duties and responsibilities.

All these institutions are came in to force according to the procedures established by the law and Constitution. Parliament and State legislators are elected people through free and fair election and certain powers are assigned to them and no institution except Parliament or State Legislative body, except the exceptions provided by the constitution, can exercise the powers assigned to them. The most and foremost power is the power to legislate after thorough deliberations with in the House which consists of members from the Ruling front and opposition. Every elected member has responsibility towards his constituents. It is true that democracy is a utilitarian principle and has its own negative side. Here comes the relevance of certain institutions and mechanisms which provides to overcome ‘counter majoritieran difficulty’[3] through the adoptions of principle of rule of law, free and fair election, deliberations in the Houses, accountability mechanisms of elected members, etc. Accountability is one of the basis of democracy where every elected member is responsible to each and every member of his constituency, irrespective of whether he voted in favor of a the elected member or not. So an MP or MLA is representing the whole society, irrespective of the political party a person belongs.

Assertion of Rights and the out sourcing of Power

The essence of democracy is to allow open criticism of its institutions, not only in the Parliament but also in the society. At the same the institutions of democracy are also important and the destruction of such institution shall not be allowed and it is disastrous to the whole nations. It is a fact that the members comprises various individuals from the society acted against those values and even tries to undermine the dignity of these democratic institutions. It is true that civil society has a very important and significant role in a true democracy. It is also dangerous when a group of people, who may have different political agendas,  in the name of civil society claiming and asserting the power which ought to have been exercised by legitimate institutions, whether they are making bonafide efforts or not. Various Parliament Ethics Committees established after the adoption of our Constitution stressed the importance of developing a working culture among people who are contesting elections and later become the members of the house.In this area political parties have a much important role in formulating and following a better mechanism to select individual as their candidates and prevents those who are self-interested, to became their future candidates. Another important factor is that every effort of social change should be made by being part of democratic institutions which stress on the doctrine of accountability, the ultimate basis of democracy.

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[1] Roscoe Pound

[2] Andre Beteille, The Institutions of Democracy, EPW Vol XLVI No. 29, at p.77, 2011

[3] Alexander Bickel, 

Post KGB – Who runs the nation - Government or Supreme Court?

The Article Below is Originally Published in Bar and Bench.

Author: Raghul Sudheesh

Now that the Civil Society members are considering moving the Supreme Court against Anna Hazare’s arrest; it needs to be analysed who runs the country! Is the Supreme Court of this country the only saviour of the people? Have they lost faith in the Executive and Legislature? Is the mass support to Anna Hazare’s fight against corruption indicating this?

Was not bringing black money, protecting tribals, other workers, appointing the right person to the post of CVC, impeaching corrupt judges; the duty the Government? Why the Supreme Court Intervened? Was it Judicial Activism or Over Activism?  Post Justice K. G. Balakrishnan era, Supreme Court has seen a lot of path breaking decisions that opened up various controversies and scandals that is disturbing the current UPA Government a lot.

The Supreme Court Bench consisting of Justices B. Sudershan Reddy and S.S. Nijjar, based on a petition filed by Ram Jethmalani and others, constituted a Special Investigation Team (SIT) headed by former Apex Court Judge B.P. Jeevan Reddy to monitor the investigation and the steps being taken to bring back black money stashed away in foreign banks. 

To quote the judgment, it starts as: “Follow the money” was the short and simple advice given by the secret informant, within the American Government, to Bob Woodward, the journalist from Washington Post, in aid of his investigations of the Watergate Hotel break in”.

The Judgement of the Supreme Court in Salwa Judum case opens as following: “We, the people as a nation, constituted ourselves as a sovereign democratic republic to conduct our affairs within the four corners of the Constitution.” The Court came down heavily on the Chhattisgarh government and the Centre for appointing tribals as Special Police Officers (SPOs) and training them to counter Maoists and held the action to be “unconstitutional”.

The same bench in Black Money case comprising Justices B Sudershan Reddy and S S Nijjar said: “On the one hand the State subsidises the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfilling its obligations to provide adequate cover to the poor through social welfare measures. On the other hand, the State seeks to arm the youngsters amongst the poor with guns to combat the anger, and unrest, amongst the poor.”

Another blow to the Centre was when the Supreme Court quashed the appointment of P. J. Thomas as Central Vigilance Commissioner (CVC). An Apex Court Bench consisting of Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Swatanter Kumar set aside his appointment pursuant to writ petitions filed by the Centre for Public Interest Litigation, the former Chief Election Commissioner, J.M. Lyngdoh, and others.

P. J. Thomas was appointed CVC pursuant to a recommendation made by a three member high power committee (HPC) headed by Prime Minister Manmohan Singh, even though the Leader of the Opposition in the Lok Sabha Sushma Swaraj, who was an HPC member, disagreed with the decision.

With Justice G.S Singhvi’s recent decision in the case of Delhi Jal Board Appellant v/s  National Campaign for Dignity and Rights of Sewerage and Allied Workers & others, the fight for the relevance of Public Interest Litigation India has taken a new pace altogether. The decision comes at a time when the Government is considering a bill to regulate PIL.

The Apex Court noted that the superior Courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution. The Court reminded that it is the duty of the judicial constituent of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity.

Coming down heavily on the corrupt and the well to do of the society, the Bench said “If the system can devote hours, days and months to hear the elitist class of eminent advocates who are engaged by those who are accused of evading payment of taxes and duties or otherwise causing loss to public exchequer or who are accused of committing heinous crimes like murder, rape, dowry death, kidnapping, abduction and even acts of terrorism or who come forward with the grievance that their fundamental right to equality has been violated by the State and/or its agencies/instrumentalities in contractual matters, some time can always be devoted for hearing the grievance of vast majority of silent sufferers.”

The year 2011 also saw Justice Dinakaran resigning from the post after it was almost sure that he will be impeached. The delay tactics adopted by him before the Apex Court also did not work out.

An Apex Court bench comprising of Justices G.S. Singhvi and Chandramauli Kumar Prasad ruled that former Sikkim High Court Chief Justice Diankaran’s knowledgeful silence with regard to P.P. Rao’s appointment in the Rajya Sabha Committee for a period of almost ten months, militates against the bona fides of his objection to the appointment of P. P. Rao as member of the Committee. 

Though the impeachment proceedings against Justice Dinakaran started on December, 2009, Justice K. G. Balakrishnan was very tolerant about Justice Dinakaran and offered a transfer to Justice Dinakaran in April 2010. I have termed this in my blog Stripped Law as ‘Judicial Kalapani’. 

Excerpts from the blog post are copied below:

“If he is unfit for the post in Karnataka how can he be fit for the same in Sikkim?? If the CJI cannot force a Chief Justice of a High Court to go on compulsory leave; to pave way for an enquiry; then what is the power of the CJI?

Why should Sikkim have to put up with someone who's considered unfit to serve anywhere else. Is it a judicial "KALAPANI?" And why is this considered a solution for the "piquant" situation - doesn't the law of the land hold true in the whole country. Are the citizens of Karnataka or Delhi more deserving of justice? One of the reason for the collegium's present decision is that only very few cases were being heard in that court, it was felt that Justice Dinakaran could be given judicial work there. What is the logic behind this reasoning? Does it really make any sense? The answer is a big "No" !

It is also a well known fact that Justice K. G. Balakrishnan was closely associated with former Tamil Nadu CM M. Karunanidhi.  A Headlines Today investigation has earlier found that former Tamil Nadu Chief Minister M. Karunanidhi misused his discretionary power and allotted two prime plots of land in Chennai to a former aide of Justice K. G. Balakrishnan. Documents in possession of Headlines Today show how Justice K.G. Balakrishnan's aide Kannabiran, whose monthly income was just around Rs 10,000, was awarded the plots, one currently costing Rs 48 lakh and the other around Rs 2.5 lakh. Also it’s a public secret among Madras High Court Lawyers that it was Karunanidhi who pressed for Justice K. G. Balakrishnan’s elevation to the Apex Court. Apart from Congress leaders, Justice K. G. Balakrishan was the only person, whom Karunanidhi used to meet regularly on his visits to Delhi. It’s also an interesting fact that nothing much happened in the 2G scam until Justice K. G. Balakrishnan was the CJI.

The biggest blow for the UPA Government came after Justice G.S Singhvi’s order in the 2G case which said “The CBI shall conduct the investigation without being influenced by any functionary, agency or instrumentality of the State and irrespective of the position, rank or status of the person to be investigated/probed.”

An analysis shows all these judgments have come at a time when the Government has failed at performing its duty or erred in doing that properly. In this background we have to see Anna Hazare and his so called fight against corruption. When the government fails, another group tries to emerge as a super power which is beyond all persons and questions. And now that Anna has been arrested and being put in Tihar Jail, the matter will again rest in the lap of the Supreme Court, to be decided at its mercy.

This way, it is being seen that for every other major issue plaguing the country, the Supreme Court is being sought out as the ultimate saviour. When this is the situation, criticisms against judicial activism as being manifestations of judicial overreach should be forthright shunned. This should be so, because of the analogy that, if judicial ‘activism’ is doing so much of good to the people of India, then why should it be considered an evil? And if it is so considered, let it be a necessary evil at the spate of this hour.

Further with Lawyers in Delhi as well as Punjab & Haryana High Courts joining the protest against arrest of Anna Hazare; indicates clearly that the Bar is also keeping vigilance against the undemocratic practises. Lawyers Social Responsibility has been shown through the protests. This will certainly boost the morality of Courts and we can expect more Judicial Activism in the coming days.

The current situation is so disastrous that for each and everything a Supreme Court intervention is needed, be it black money or awarding compensation to sewage workers and ensuring their safety. The question that arises at this crucial point is who is running the country? Is it the government or the Supreme Court?

A shorter version of the column is available in Firstpost.

Raghul Sudheesh is Associate Editor at Bar and Bench.  You can follow him on Twitter or Facebook.  

Honourable Holidays – Mr. Justice is on Vacation

The Article Below is Originally Published in Bar and Bench.

Authors: Raghul Sudheesh & Bharat R. Itagi

Vacationing may very well help you rejuvenate yourself and help you start your life afresh once you are back to the mundane. It may very well up your sagging spirits. But, no matter how articulately you enlist the positive effects of vacations, it is prima facie unreasonable for their Lordships – the hallowed Law keepers of the land - of the Indian Judiciary to go on long vacations, when the number of pending cases before them is sky rocketing!

A glance at the calendar of the Supreme Court for this year would be able to drive the point home. The Supreme Court yearly vacation was from 16^th May to 2^nd July, which is a good one month and 19 days, and about 43 days cumulatively, in terms of festivals and public holidays. This brings the total number of days on which the Supreme Court will not function, to about three months. Therefore, in the year 2011 the Supreme Court will be functioning only for nine months. This limited time of nine months can be increased considerably if the yearly vacation is done away with. Now, this does not mean that all the Judges should be made to work round the year. Instead, if the vacation can be made available to the Judges in turns, then there will be a lesser waste of time.

The 230^th Law Commission of India Report of Judicial Reforms addresses this issue. The Law Commission recommends that, due to the high rate of pendency of cases and the tendency of the lawyers to seek adjournments on flimsy needs, the time allotted for court holidays needs to be checked. The Report also recommends that the vacation period of the entire Judiciary - starting from the Apex Court - should be lessened by at least 10-15 days. The other alternative suggested by the report is that the attendance of the Judges at international conferences should be taken up in turns. Further, the report recommends that if the working hours are extended by even half an hour, the Judges will be able to contribute in a large way to check the high rates of pendency. The Report specifically recommends that the higher remuneration should be reciprocated by complete devotion of time to discharge their judicial functions.

The following table shows the year-wise number of days on which the Supreme Court of India remains closed on account of either vacation or festivities and public holidays.

Reason for the Vacation	2010	2009	2008	2007	2006	2005	2004	2003
Summer Vacation	45	46	46	42	49	54	58	58
Festivals and Public Holidays	38	42	44	45	45	41	42	42
Total	83	88	90	87	94	95	100	100

The table connotes that on an average the Supreme Court remains closed cumulatively for three months in a given year; in the sense that the Supreme Court is open for the redressal merely for nine months.

The following table depicts the number of holidays excluding the weekly holidays but including the vacation period of Supreme Courts of a few nations:

Country	Holidays
Canada	11
UK	24
Australia	52
Singapore	55
Ireland	74
Bangladesh	80

The days of vacation should always be weighed with corresponding rate of pendency and the crunch of time. Given the high rate of cases pending disposal in the Supreme Court of India, a shorter vacation would have a larger impact.

Relevance of reducing the number of holidays:

It is an admitted fact that for institutions like that of Supreme Court, time is extremely valuable and cannot be afforded to go unproductive. To top it all, a large part of the pie gets marked as holidays. Apart from the marked yearly vacation of over a month and above, the Supreme Court cannot function on a list of days due to religious festivities.

It is a lesser-known fact that the Supreme Court of United States does not have a yearly vacation. Although the hearing sittings are limited for a few months but during the rest of the year, the Judges are ‘at work’, in the sense the Judges will be either researching on the cases before them, holding conferences etc. After they have worked on a case at hand, depending on the stage of the case, there are a few months allocated only for pronouncement of judgments. But one thing to be noted is that the entire dockets of cases of any given year are disposed off in a year’s time.

In case of the Indian Apex Court, the scenario is entirely different. There may be many of us who might argue that, the legal systems of the two nations are different or there is a vast difference on the number of cases pending and the procedure followed in both the nations. All these arguments are true but an attempt is being made in this article to analyze what will be the effect of reducing the vacation period of the courts in India. Reducing the vacation period is one of the factors that can be thought out to increase the speed of disposal of cases. It is pertinent to note that the quorum of judges in the US Supreme Court is nine. Indian Supreme Court is jeweled with twenty-seven Judges excluding the Chief Justice.

The Apex Court of Australia gets about 6 weeks of vacation spread over in summer and winter, which is much lesser when compared to India. One of the aspects to be considered at this juncture is the high rate of pendency of cases in India. Unlike Australia, the cases pending for disposal before the Supreme Court of India are way beyond comparison. This yardstick is of high importance because the attention of the Supreme Court is crippled due to paucity of time. This problem can be addressed to a larger extent if the vacation period is reduced even by a few weeks every year. 

According to Frank Tyger, “When you like your work every day is a holiday.”  This sentence says it all. If everyone in the Judiciary including the Judges, advocates and all the office bearers imbibe in themselves these words of Tyger, then it will surely reduce the rate of pendency of cases. The long drawn process and procedure of Courts of Law will not put any litigant to sufferance. There have been instances which connote that no Judge is willing to like the work he does and hence he seems to be enjoying the holidays by making the layman wait; most of the times for more than a decade! Let the Hon’ble Judges acknowledge the vitality of reducing the holidays and address the nation in a way as is required and aspired by the citizens.

Raghul Sudheesh is Associate Editor at Bar & Bench and Bharat R. Itagi is a law student at University College of Law, Dharwad, Karnataka.

Ticking Bomb Theory: Is India Ready for it?

Suppose there is a time sensitive situation in which the bomb has been planted in various parts of the country and the person who is responsible for the planting of the bombs is in the custody but refuses to help in location of the bombs. In such situations will torture be justified? Should we give priority to the human rights of the person in the custody, which is against the human rights of hundreds of people who are going to be the victims of the attack?

This is the biggest paradox that we are forced to live in being the citizens of India. America and many other nations have moved forward and made intensive investigation or the ‘ticking bomb theory’ as the soul of their criminal justice system to investigate on the matters which are time sensitive and which have grave consequences. The US Patriot Act renewed the enhanced interrogation of terrorists for protecting the country from the evil. George Bush has also defended the Act by saying that it does not undermine any of the civil liberties. Moreover, if the ticking bomb theory is applied only one person shall suffer the pain and rest of the hundred lives will be saved and if it is not applied then many people will die. The Principle of Utility by Jeremy Bentham justifies this torture, as it seeks to maximise the welfare of the people and community as a whole.

In India the scenario is very different as our criminal justice system breathes on “presumption of innocence” and the person in custody has all his rights intact. Our criminal justice system is based on the notion that “It is better that several guilty person should escape punishment than one innocent person should suffer”. But the question really is whether this is still appropriate in the present scenario of terrorism and whether the balance between liberty and security should always be ensured without any regard to the growing terrorism. India is a very soft country and so are the laws. Though the laws such a POTA and TADA had made their mark in India nothing can be equated to the ticking bomb theory. Even if such a theory is incorporated in any law in India the so called human rights activists won’t let it sustain. Moreover, a divorce can never ensue between India and Corruption. Hence if the torture is made legal, the rate of police violence and false cases might also increase. POTA and TADA are the clear examples of this, which were repealed due to their abuse and unreasonable use. The physical coercion in interrogations might also lead to the victim disclosing unreliable information. Moreover in India we consider torture to be wrong and against humanity and if we continue to torture people in the name of terrorism a wrong example might be created in the eyes of a citizen.

India is and will always remain a state which LEGALLY prohibits torture during interrogation though the police machinery used it as an effective tool to gather the information from the terrorist. Now comes a time for the country to pick between national security and dignity of the human beings and India will always pick human dignity and will fly high the flag of presumption of innocence. Moreover, India being a democracy the ticking bomb theory will not escape the legal and moral scrutiny.

Though the ticking bomb theory is very effective and is proved to be successful in the global scenario, a country such as India is still not ready to make a law which gives a license to torture. For India it would, of course, be better to strengthen the national security than to compromise with the dignity of human beings when it is known that any law of that kind would get abused.