Panchkula (AJRI) : AJRI Report : The huge pileup of cases in Indian courts has reached to alarming height, still date all efforts carried out by all stake holders of Indian justice delivery system have not shown any improvements.

At AJRI we are researching to suggest practical solution to bring the huge pendency rate of Indian Courts from district courts to Supreme Court of India.

In the post I would like to draw attention on only those courts cases which are pending in Indian Courts for more than 30 years.

As per information there are 66142 cases pending in Indian Courts for more than 30 years.

Association for Judicial Reforms (India) research reveals that two cases in Bihar and West Bengal are pending in courts since 1951 to till date. Further it has come to notice that the case No. 40/1951 of Court of Dumraon Civil Division in District Buxar in Bihar is pending since 1951 and last date was 17/11/2018 purpose for adjournment mentioned in Court records was for arguments.

Also in second case which is pending in Court of Civil Judge Senior Division, Hooghly in West Bengal Since 1951.

Out of Total pending cases in the category of over 30 years, 36302 cases are of criminal nature whereas rest of cases are of civil nature.

Also it has came out from AJRI research on huge pending of courts in India that more than 83 percent of this category of pendency of Indian Courts started piling up since the year of 1980 and reached on today 66142 cases.

As per states pendency rate the Uttar Pradesh tops the tally with 26092 cases pending its various district courts for more than 30 years which amount to 39 percent of national pendency in this category, followed Maharashtra 13549, West Bengal 9719. Bihar 6901 etc

The Association for Judicial Reforms (India) research suggests that if administration of justice really wants to reduce the pendency of cases in Indian Courts then it should start with category of cases pending for more than 30 years and with precise directions to concerned courts to decide the cases on priority basis to remove the taboo of the category which pending for more than 30 years defying the maxim, “Justice Delayed Justice Denied” 

Panchkula (AJRI): Constitution of India Bill 1895:  The Constitution of India Bill 1895, also referred to as Swaraj Bill,  was written during the emergence of Indian nationalism and its increasingly vocal demands for self-government albeit within the British Empire. The author of the document remains a mystery. Annie Besant seems to suggest that the document’s main influence was Bal Gangadhar Tilak – who was the force behind calls for ‘Swaraj’.

As the title suggests, it attempts to outline a constitutional vision for India. The document is written in a legal form and consists of 110 articles. It covers a number of individual rights – right to free speech, right to property, inviolation of one’s home, equality before the law etc. It also touches upon structures of government and separation of powers.

S.P. Sathe’s chapter – ‘Fundamental Rights and Directive Principles’ in  Constitutional Developments since Independence considers the document as the first non-official attempt at drafting a Constitution for India. Rohit De’s chapter – ‘Constitutional Antecedents’  in The Oxford Handbook of The Indian Consitution views the document as the first articulation of a constitutional imagination by Indians. The Constitution of India Bill 1895 went on to influence other antecedents to the Constitution of India, 1950 like the Commonwealth of India Bill 1925 and the Nehru Report 1928.

PREAMBLE

CIB.1

BE IT ENACTED by the Queen’s Most Excellent Majesty by and with advice and consent of the Lords Spiritual and Temporal and Commons, in……… Parliament assembled and by the authority of the same, as follows:

PRELIMINARY

CIB.2

  1. This Act may be called the Constitution of India Act.

It extends to the whole of India, and it shall come into force on the first day of January.

CIB.3

  1. On and from that day, the enactments mentioned in the Schedule shall be repealed to theextent specified in the second column thereof.

CIB.4

  1. In this Act, unless there be something repugnant in the subject or context:

(a) The Parliament of India means an Assembly of representatives — official as well as non-official — of the Indian Nation.

(b) The word “District” shall include the capital of a Province.

(c) The word “laws” includes Civil, Criminal, Revenue, Ecclesiastical or Military laws.

(d) The Indian citizens are:

(i) Those born in India.

(ii) The children of an Indian father and the natural children of an Indian mother, born in a foreign country, who may acquire a domicile in the Empire.

(iii)The children of an Indian father who shall be in a foreign country, in the service of the Empire, although they may not acquire domicile in the Empire.

(iv) Foreigners naturalised.

CIB.5

4.Of the Empire of India.The Empire of India shall be a National association of all Indian citizens.

CIB.6

5.Territories of India. (1) Its territory shall be divided into the following Provinces: (i) Bengal, including Bihar and Assam; (ii) Madras; (iii) Bombay, including Sindh and Baluchistan; (iv) North-West Provinces, including Oudh: (v) The Punjab; (vi) The Central Provinces and Berar; (vii) Burma; (viii) Central India; (ix) Rajputana; (x) Hyderabad Dominions.

(2) Each of the above mentioned Provinces shall be divided into as many (a) Divisions; (b) Districts; (c)Talukas; and (d) Village Groups as is necessary for the efficient Government of India.

CIB.7

  1. Religions of India.All religions, creeds and faiths are allowed in the Empire, and the modes of worship may either be domestic, private or public.

THE GOVERNMENT OF INDIA

Parliament of India

CIB.8

  1. The Constitution of India shall be divided into 4 powers, viz(a)The Sovereign power; (b)The Legislative power; (c) The Judicial power;(d) The Executive power.

CIB.9

  1. All the powers in the Empire are the delegations of the Nation.

CIB.10

  1. All the Supreme, Legislative, Judicial and Executive powers shall be vested in the Parliament of India. 

CIB.11

l0. The Legislative power shall make laws, rules and regulations, the Judicial power shall interpret, declare and enforce them, and the Executive power shall administer them, as interpreted and declared by the Judicial power.

CIB.12

  1. The Judicial and the Executive powers shall be subordinate to the Legislative power.

CIB.13

  1. No law shall be made unless for public benefit.

CIB.14

  1. Every citizen has a right to take part in the affairs of his country. The means by which such right shall be recognised shall be prescribed by the Parliament of India.

CIB.15

  1. All citizens of India are required to bear arms, to maintain and defend the Empire against its internal and external enemies.

CIB.16

  1. No citizen shall do, or omit to do, any act unless by virtue of law.

CIB.17

  1. Every citizen may express his thoughts by words or writings, and publish them in print without liability to censure, but they shall be answerable for abuses, which they may commit in the exercise of this right, in the cases and in the mode the Parliament shall determine.

CIB.18

  1. Every citizen has in his house an inviolable asylum.

CIB.19

  1. No one can be imprisoned without a special crime proved against him according to law.

CIB.20

  1. No one shall be sentenced except by competent authority.

CIB.21

  1. The law shall be equal to all.

CIB.22

  1. Every citizen may be admitted to public office.

CIB.23

  1. No one shall be exempted from contributing to the expenses of the State in proportion to his substance.

CIB.24

  1. Every citizen shall enjoy right of property to its fullest extent, except where the law determines otherwise.

CIB.25

  1. Every citizen has a right to present to his Sovereign or to the Parliament, or to any Legislative, Judicial or Executive authority claims, petitions and complaints.

CIB.26

  1. State Education shall be Free in the Empire.

CIB.27

  1. Primary Education shall be Compulsory in the Empire.

CIB.28

  1. The rights of an Indian citizenship are lost by (1)Those who become naturalised in a foreign country; (2)Those who without the licence of the Government of India accept any office, pension or honour, from any foreign Government; (3) Those sentenced to banishment.

CIB.29

  1. The political rights of an Indian citizen are lost by (1)Physical or moral incapacity; (2) Sentence of imprisonment or of banishment during the continuance of its operation.

CIB.30

  1. Every citizen has a right to give one vote for electing a member to the Parliament of India and one to the Local Legislative Council.

The Sovereign power

CIB.31

  1. The Sovereign power of India shall be vested in the Sovereign of Great Britain and Ireland, who is the supreme head of the Indian Nation.

CIB.32

  1. The Viceroy of India shall be the representative of the Sovereign of Great Britain and Ireland in India.

CIB.33

  1. The Sovereign of Great Britain and Ireland shall reign and rule over the Empire of India.

CIB.34

  1. The Viceroy of India may veto any Act of the Parliament of India and may initiate any legislation.

CIB.35

  1. The Viceroy of India shall be the President of the Parliament.

CIB.36

34a. The Viceroy of India shall be appointed by the Sovereign of Great Britain and Ireland.

The Legislative Functions of Parliament

CIB.37

  1. All Legislative powers shall be delegated by the Nation to an Assembly of its representatives which shall be called the Parliament of India.

CIB.38

  1. The representatives of the Nation shall be officials and non-officials.

CIB.39

  1. The Parliament of India shall consist of two Houses: (1)the Upper House and (2) the Lower House.

CIB.40

  1. The Upper House shall be an Assembly composed of: 

(a) Members chosen by the people to continue in office for life;

(b) The following Official Members: (1) Privy Council Judges, (2) Cabinet Ministers;

(c) Members chosen for life to represent the following professions, trades and interests:

Legal Profession.–10 Advocates, Barristers or Vakils elected by the bar;

[“Bar” means Advocates, Barristers or Vakils of the High Court or District Court, practising in Privy Council, High Courts, District Courts or Taluka Courts.]

Medical Profession.– 10 duly qualified medical practitioners elected by duly qualified medical practitioners;

Municipalities.— 25 members elected by Municipal Commissioners;

University.— 10 Fellows elected by Fellows ;

Commerce.– 30 members elected by all Chambers of Commerce;

(d) 20 nominated by the Sovereign.

CIB.41

  1. Each Division shall send two representatives and each District one representative to the Upper House.

CIB.42

  1. The Lower House shall be an assembly composed of Members chosen by the people to continue in office for 3 years and Members chosen to representthefollowing professions to continue in office for 3 years [See Section 38(c)].

CIB.43

  1. Each Division shall send two representatives and each District one representative to the Lower House.

CIB.44

  1. If vacancies happen by resignation or otherwise in any Division or District, the Executive thereof shall issue writs of election to fill such vacancies.

CIB.45

  1. No person shall be a representative of the Lower or the Upper House who shall not have attained to the age of 25 years, and been 10 years a citizen of India.

CIB.46

  1. There shall be one President for both the Houses of Parliament who shall be the Viceroy of India, and one Vice-President for each House.

CIB.47

  1. The Parliament shall choose their Vice-Presidents and other officers.

CIB.48

  1. The Legislative functions of the Parliament shall be conducted by both the Houses in the manner prescribed by this Act.

CIB.49

  1. The President and the Vice-President of the Upper House shall hold their offices for 5 years and the Vice-President of the Lower House shall hold his office for 3 years.

CIB.50

  1. The Viceroy of India shall be the head of the Parliament during the tenure of his office and shall be assisted in the conduct of the Judicial Administration of India by the Privy Council and the Executive Administration by the Cabinet of Ministers, as constituted under this Act.

CIB.51

  1. The Parliament shall make, suspend or revoke laws, rules and regulations, for the Government of India relating to the preservation of the Constitution of the Empire, Ecclesiastical Establishments, or Institutions, Matters of Succession, Inheritance, Adoption, Marriages, Partitions of Estates, Gifts of Property, Wills, Property, Procedures of the Civil and Criminal Courts, Arbitrations in Disputes, Limitation of Suits, Appeals or Applications, Contracts, Sales and Purchases, Agency, Bailment, Partnership, Indemnity and Guarantee, Civil Wrongs and Defamation, Duties of Masters and Servants, Copyright, Patents, Judicial Evidence, Registration of Documents, Stamps and Court Fees, Crimes, Prison Administration, Municipal Government, Police, Matters of Equity, Specific Relief, Trust, Mortgage, Public Service, Land Revenue Settlements, Forest Administration, Education, Abkari, Customs and Usages of the People, Excise, Income-tax, Tariff and Customs, Press, Opium and other Intoxicating Drugs, Stores and Stationery required for the purposes of State, Currency, Post Office, Telegraphs, Survey of Land, Finances, Legal Profession, Famines, Railways, Canals, Companies, Emigration, Marine Administration, Merchants’ Rights, Duties and Obligations, Banking, Negotiable Instruments, Treasury, Ports, Medical Administration, Sanitation, and Arms, Carriers, Judicial Administration, the Giving of Encouragement to or the Development of Science, Industries, Commerce, Transfer of Property, Foreign Politics, Public Works, Extradition, Gambling, the Poor, Easements, Lunatics, Army, Navy, Agriculture, Insurances, Physical Education, Factories, the Preservation of Ancient Monuments, Museums and relating to all matters necessary for the Preservation, Efficiency and Development of the Empire.

CIB.52

  1. The Financial Statement of the Government of India shall be explained in the Parliament by the Financial Minister two months before the new year, a printed copy of the same given to each Member and a draft of the Statement placed on the editors’ table, and circulated among such of the political associations of the country as the Financial Minister may deem fit.

CIB.53

  1. The right of discussion of the Financial Statement shall be allowed to each Member of the Parliament, and no item shall be passed as a public charge unless it is voted by the majority.

CIB.54

  1. Every Member of Parliament has a right to ask any questions regarding the Government of the Empire.

CIB.55

  1. Every Member has a right to submit or propose any resolution and divide the Parliament in respect of any financial discussion or the answer to any question asked.

CIB.56

  1. The Parliament may examine the Government of the Empire, and reform the abuses introduced into it.

The Judicial Functions of the Parliament

CIB.57

  1. The Judicial functions of the Parliament shall be conducted by a Council of Judges called the Privy Council, who shall hold their offices for life unless incapacitated under any laws for the time being in force.

CIB.58

  1. The Judges of the Privy Council shall be official members of the Parliament.

CIB.59

  1. The Chief Judge of the Privy Council shall be called the Lord High Chancellor of India and the Puisne Judges, the Vice-Chancellors.

CIB.60

  1. The Lord High Chancellor and the ViceChancellors shall be elected by the Nation in the same manner as the non-official representatives of the Parliament.

CIB.61

  1. No one can be a Privy Council Judge unless he shall be a Barrister, Advocate or Pleader of the Privy Council or High Court of not less than l0 years’ standing, or a Judge of the High Court of a Province, and unless he possesses the qualifications required of a non-official representative of the people.

CIB.62

  1. The President of the Parliament shall be the head of the Privy Council for the time being and in his absence the Lord High Chancellor.

CIB.63

  1. From all decrees or orders of the High Court there shall be appeals to the Privy Council.

CIB.64

  1. The Privy Council shall possess ordinary Original jurisdiction in the Empire and also extraordinary Appellate, revisional and superintending jurisdiction over all Courts of Justice in the Empire.

The Executive Functions of the Parliament

CIB.65

  1. For the efficient Executive Administration of the Empire, the following Departments shall be established : (1) Financial; (2) Legislative; (3) Educational; (4) Trade and Commerce; (5) Ecclesiastical; (6) Customs; (7) Excise; (8) Press; (9) Judicial; (10) Stores & Stationary; (11) Treasury; (12) Science; (13) Post Office; (14) Telegraph; (15) Railway; (16) Survey;(17) Forest; (18) Public Works; (19) Local Government; (20) Marine; (21) Medical; (22) Sanitary; (23) Military; (24) Foreign; (25) Agricultural; (26) Political; (27) Land Administration;(28) Irrigation; (29) General.

CIB.66

  1. The Executive Functions of the Parliament shall be conducted by a Cabinet of Ministers consisting of the Prime Minister in charge of the General Administration and 29 other Ministers respectively in charge of the departments as mentioned under clause 63.

CIB.67

  1. The functions of the Cabinet are:

(1) To execute laws made by the Parliament and to see that they are administered properly.

Where there arises any doubt as to the interpretation or declaration of the laws, the decisions of the Privy Council shall be binding on the Cabinet, which shall administer laws as interpreted and declared by the Privy Council.

(2) To make Rules and Regulations consistent with the laws of the Parliament.

CIB.68

  1. The Cabinet Ministers shall hold their offices during life, unless incapacitated under any law for the time being in force. They shall be elected in the same manner as the non-official members of the Parliament.

CIB.69

  1. Any one who is eligible to become a Member of Parliament may become a Cabinet Minister.

The Local Legislative Power

CIB.70

  1. Each Province of the Empire mentioned in Section 5 shall have a Local Legislative Council and shall be composed of :

(a) 3 representatives elected by the people for each Division;

(b) 2 representatives elected by the people for each District;

(c) 1 representative elected by the people for each Taluka;

(d) The Governor of the Province;

(e) 5 Executive Councillors;

(f) The Secretaries of each Department;

(g) The Chief Executive Officers;

(h) The Judges of the High Court; and

(i) Members chosen to represent the following professions, trades and interests:

Legal Profession.–10 Advocates, Barristers or Vakils elected by the Bar;

[“Bar” means Advocates’ Barristers or Vakils of the High Court or District Court, practising in Privy Council, High Courts, District Courts or Taluka Courts.]

Medical Profession.– 10 duly qualified medical practitioners elected by duly qualified medical practitioners;

Municipalities.— 25 members elected by Municipal Commissioners;

University.— 10 Fellows elected by Fellows;

Commerce.– 30 members elected by all Chambers of Commerce.

CIB.71

  1. The functions of the Local Legislative Council shall include the (1)making of Rules and Regulations consistent with Parliamentary laws, according to the requirements of the Province, (2)discussing local finances and to vote expenses for the Government of the Province, (3) Examination of the administration of the Province.

CIB.72

  1. Each Local Legislative Council shall have a President, who shall be appointed by the Ministry and who shall be called the Governor of the Province to which he shall be appointed.

CIB.73

  1. The Members of the Local Legislative Council shall have the same powers as the Members of Parliament with regard to the discussion of the Financial Budget of the Province and the right of interpellation.

CIB.74

  1. The Financial Statement of the Local Government shall be explained in the Local Legislative Council by the official in charge of the Local Finances two months before the commencement of the new year, and a printed copy of the same given to each Member, and a draft of the Statement placed on the editors’ table, and circulated among such of the political associations of the country as the officer in charge of the Local Finances may deem fit.

CIB.75

  1. The Section 5l regarding the Imperial Financial Statement shall apply to the Provincial Financial Statement.

CIB.76

  1. The Governor of the Province shall be the highest administrative authority in the Province.

The Local Judicial Power

CIB.77

  1. The highest judicial authority in India shall be vested in the Sovereign and the Parliament of India which shall be exercised through the Privy Council.

CIB.78

  1. There shall be established High Courts in India subordinate only to the Parliament, and such other inferior Courts as the High Court may deem it necessary for the efficient Government of India.

CIB.79

  1. The Judges of the High Courts shall hold their offices during life, unless incapacitated under any law for the time being in force.

CIB.80

  1. The Judicial power of the Courts shall extend to all cases arising in law and equity.

CIB.81

  1. The Courts of Justice shall interpret, declare, and enforce when necessary, the laws, rules and regulations passed by the Parliament and the Local Legislative Councils, as described in this Act.

CIB.82

  1. Each Province of the Empire shall have one High Court as the highest Court of Justice for that Province subordinate to the Parliament.

CIB.83

  1. Each High Court shall have one Chief Justice and as many Puisne Judges as the Parliament may determine. 

CIB.84

  1. Each High Court shall possess Original jurisdiction in the Province for which it shall be established, and Appellate, extraordinary, revisional and superintending jurisdiction over all Courts subordinate to it.

CIB.85

  1. Each District shall have a Court of Justice which shall be called the District Court.

CIB.86

  1. Each Taluka shall have a Court of Justice which shall be called the Taluka Court.

CIB.87

  1. All Taluka Courts shall be subordinate to the District Court and the High Court, and all District Courts shall be subordinate to the High Court.

CIB.88

  1. The High Court Judges shall be either Barristers, Advocates or Vakilsof the High Court of not less than 10 years’ standing.

CIB.89

  1. The District Judges shall be either Barristers, Advocates or Vakils of the High Court of not less than 5 years’ standing.

CIB.90

  1. Taluka Judges shall be either Barristers, Advocates or Vakils of the High Court of not less than 3 years’ standing or District Pleaders of not less than 5 years’ standing.

The Local Executive Power

CIB.91

  1. The highest Executive authority in India shall be vested in the Sovereign and the Parliament of India, which shall be exercised through the Cabinet of Ministers above mentioned.

CIB.92

  1. There shall be a Governor for each Province subordinate to the Cabinet of Ministers.

CIB.93

  1. The Governor shall have a Local Executive Council of 5 members and shall be assisted in the administration of the Province by the Chief Secretary in charge of General Administration and each of the Secretaries in charge of the Departments mentioned under Clause 63, who shall also be ex-officioMembers of the Local Legislative Council.

CIB.94

  1. Each Division shall be in the administrative charge of an official called the Chief Executive Officer, who shall be immediately subordinate to the Governor.

CIB.95

  1. Each District shall be in the administrative charge of an official called the District Executive Officer, subordinate to the Chief Executive Officer.

CIB.96

  1. Each Taluka shall be in the administrative charge of an official called the Taluka Executive Officer, subordinate to the District and Chief Executive Officer.

CIB.97

  1. Each group of villages shall be in charge of an official who shall be called the Village Officer.

Miscellaneous

CIB.98

  1. Any Member of the Parliament may introduce a Bill in the Parliament.

CIB.99

  1. No Bill shall become law unless it has passed by majority through the Lower House three times and the Upper House three times and unless it has obtained the sanction of the Sovereign.

CIB.100

  1. Any Member of the Local Legislative Council may introduce any rule or regulation, which shall have the force of law after having passed three times by the majority.

CIB.101

  1. The Non-Official Members of the Parliament of India shall be paid out of the Imperial Treasury salaries at the rate of 500 rupees for each Member per month and the Non-Official Members of the Local Legislative Council shall be paid out of the Local Treasury salaries at the rate of 200 rupees for each Member per month.

CIB.102

  1. All citizens are eligible for becoming Members of the Parliament and the Local Legislative Council.

CIB.103

  1. There shall be kept one journal of the proceedings of the Parliament, the Local Legislative Councils, the High Courts of Judicature and the Executive Councils and the same shall be published every week, excepting such parts as may in their judgment require secrecy.

CIB.104

  1. At the meetings of both Houses of Parliament the President of the Parliament shall direct the business of the meeting.

CIB.105

  1. At the meetings of theLocal Legislative Council the Governor of the Province shall direct the business of the meeting.

CIB.106

  1. The sittings of the Parliament and the Local Legislative Councils and the Courts of Justice shall always be public except in cases where secrecy is essential in the interests of public good.

CIB.107

  1. The absolute majority of the votes of the Members present shall decide every question before the Parliament and the Local Legislative Councils.

CIB.108

  1. The Upper House shall meet for the conduct of business on the first day of January, April, July and October and such other following days as are necessary for the purpose.

CIB.109

  1. The Lower House shall meet for the conduct of business on the first day of February, May, August and November and such other following days as are necessary for the purpose.

CIB.110

  1. The Local Legislative Councils shall meet on the 15th day of each month and such other following days as are necessary for the conduct of business.

CIB.111

  1. Barristers, Advocates, or Vakils of the High Court may appear to plead before the meetings of Parliament, the Privy Council, High Courts, Ministers, the Local Legislative or Executive Councils and District or Taluka Courts and all other Judicial and Executive Officers on behalf of their clients.

CIB.112

  1. No one can be a Member of both the Houses of Parliament at the same time.

CIB.113

  1. All State Officials are by virtue of their offices the official representatives of the people.

Source: The Content of this post was taken from website http://cadindia.clpr.org.in/historical_constitutions/the_constitution_of_india_bill__unknown__1895__1st%20January%20189 and republished in the interest of democracy and to spread awareness about Process of making of constitution of India.

Panchkula (AJRI): Live Court Proceedings Broadcasting : The Supreme Court bench of Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud on Monday observed that live streaming of court proceedings will help litigant instantaneously know what happened to his case and how his lawyer performed his case before the Court.

Attorney General KK Venugopal submitted that all court proceedings should be streamed live not only the constitution bench matters.

When the Chief Justice asked the AG for his perception, he cited UK’s Constitutional Reforms Act, 2005, under section 47 of which live streaming of proceedings of the Supreme Court was permitted in 2009 and of the Court of Appeal in 2013.

Elaborating on the numerous benefits of the live telecast, he advanced that it would enable litigants commuting from distant states such as Tamil Nadu and Kerala to conveniently follow the Supreme Court proceedings.

“Knowing that the entire country can watch them, there will be fewer interruptions and raised voices on the part of the advocates…it will be a great lesson for them…if we observe the hearings in the British courts, we can see how sober and dignified.

“As a principle, every member of the bar must learn to be disciplined, whatever may be the case”, agreed the Chief Justice. “Let them show the world how indisciplined they are…” chipped in the AG in a lighter vein.

“It will also check the tendency of advocates to seek adjournments…the litigants will be able to see how many times the advocate requested and for an adjournment and why”, commented Justice Chandrachud. “When the counsel seeks an adjournment, it means he is not prepared and this is not prepared and this is not admissible”, added the Chief Justice.

The AG submitted that live streaming of the court proceedings would also address the issue of voluminous crowd of unrelated advocates, litigants and others hoarding the courtrooms.

“It would also go a long way in the training of the interns who wish to learn from the highest court of the country and who are the future lawyers…ultimately, the suggestion is that the proceedings of all courts and not merely the Chief court or the Constitution benches should be shown…”, he concluded.

Agreeing that all cases and not merely the matters before the Constitution bench should be aired live, the bench also reflected that the live broadcast of important matters would significantly aid legal education in law schools.

Enumerating another advantage of the live streaming, Ms. Jaising said that the same would qualify as an official record, in the light of the rising trend of live tweeting which may be inaccurate and misguiding.

“Our courts anyway have open access…the need for an entry pass is only a minimal security requirement…when we already have open courts and public hearings, live streaming is only an extension of the concept; an extrapolation by way of a ‘virtual’ open court…”, weighed in Justice Chandrachud.

“Conceptually, we have an open court, except where the trial is required to be held in camera under a statutory provision (like section 22 of the Hindu Marriage Act, 1955)…the litigant has the right to know how their matter is being dealt with…the concept of access to justice can be expanded to enable them to know what is happening on their lis and how their lawyer is presenting their case even though they are not in court…”, observed the CJ.

“Matters involving security concerns, matrimonial disputes and such other cases as Your Lordships’ may deem fit can be excluded from the recording”, recommended the AG.

“Matrimonial cases as a class must be excluded…parties would not want their names and why the divorce was granted or not granted to come in public eye…there can be no telecasting of rape cases…there may also be other matters having implications on the privacy of the parties…”, concurred the CJ.

Urging that there be no unauthorised reproduction of the content of the court proceedings which are live streamed, Ms. Jaising cited the example of UK where official agreements are entered into with broadcasters on a non-commercial basis. “Nobody should be allowed to make money out of it”, she stated.

“Like the Lok Sabha and Rajya Sabha, the Supreme Court may have its own channel”, ventured the AG.

Requesting Ms. Jaising to serve a copy of the guidelines prepared by her on the AG, the bench scheduled the matter for further hearing on July 23.

When the bench had inquired if there was any counter-view at the bar, an advocate had suggested that the knowledge of being watched may encourage some lawyers to “over-perform” resulting in a bigger congregation.

In response, CJ Misra had remarked, “there is no under-performance or over-performance, only performance…this is the difference between advocacy and legal advocacy; the latter has substance while the former is devoid of any…”

Another advocate had cited the dangers of the telecast of proceedings prior to any conviction, at the stage when only the evidence is being appreciated.

Panchkula (Association for Judicial Reforms India); All India Judicial Service :The comprehensive proposal for the constitution of an All India Judicial Service (AIJS) was formulated and the same was considered and recommended by the Committee of Secretaries in November, 2012.

The proposal was discussed in the Conference of Chief Ministers and Chief Justices of the High Courts held in April, 2013 wherein it was decided that the issue needed further deliberation and consideration. Views on the proposal were also sought from the State Governments and High Courts.

Only the High Courts of Sikkim and Tripura have concurred with the proposal approved by Committee of Secretaries for formation of All India Judicial Service.

High Courts of Allahabad, Chhattisgarh, Himachal Pradesh, Kerala, Manipur, Meghalaya, Orissa and Uttarakhand have suggested changes mainly in age at induction level, qualifications, training and quota of vacancies to be filled through All India Judicial Service.

Rest of the High Courts have not favoured the idea. Most of the High Courts want the administrative control over the Subordinate Judiciary to remain with the respective High Courts.

The High Courts of Jharkhand and Rajasthan have indicated that the matter regarding creation of AIJS is pending consideration. No response has been received from the High Courts of Calcutta, Jammu & Kashmir and Gauhati.

All India Judicial Service besides attracting some of the best talent in the country may also facilitate inclusion in judiciary of competent persons belonging to underprivileged, marginalised communities and women and also bring the State officers from other parts of the country having different cultural background and speaking other language from that of the State of allotment.

Keeping in view the divergence of opinion among the stakeholders on constitution of All India Judicial Service, the Government has undertaken the consultative process to arrive at a common ground.

Panchkula (AJRI): Constituent Assembly Debates : For any student of the Indian Constitution, the Constituent Assembly Debates are both invaluable and indispensable. They are, however, difficult to read, as well as difficult to relate to the final constitutional text. This is not simply because of their volume, but because a significant part of the actual drafting took place outside the proceedings of the Assembly, and in Committees. A bare reading of the Debates, therefore, can often be confusing: the language of the draft articles changes, as does their numbering. The Debates frequently refer back to what happened in the Committees. Trying to understand the Debates without the Committee proceedings is bit like trying to swim with one arm and one leg.

Fortunately, the Committee proceedings are available in B. Shiva Rao’s six-volume edited collection titled The Framing of India’s Constitution: Select Documents. However, much like the Debates, the Select Documents cannot be read as self-contained volumes. This is because, as the Assembly drew on what was happening in Committee, the Committees discussed and revised the drafts that they received from the Assembly. A holistic understanding of the framing of India’s Constitution therefore depends on a (somewhat) careful exercise that involves reading together the debates and the committee proceedings. This process is equally important if you’re trying to trace the history of a particular clause or set of clauses. The various iterations of a draft clause can shed significant light on the best way to interpret it within the constitutional scheme. For example, Article 17 of the Constitution, which prohibits untouchability, places the word “untouchability” within quotes. This seemingly innocuous choice of form actually has a significant history, a history that becomes clear when we read the multiple rounds of debates – in Committee and in the Assembly – around the untouchability clause. In fact, the use of quotes around “untouchability”, when read in the context of the drafting history, go some way towards us telling us how Article 17 is to be understood in 2018.

What follows is a brief guide to reading the Constituent Assembly Debates, taking the example of the Fundamental Rights chapter (the approach to other parts of the Constitution will be broadly similar).

Volume 1 of Shiva Rao’s collection contains various constitutional documents that Indian nationalists came up with through the course of the early 20th century, and the build-up to the Constituent Assembly (including its establishment). That is interesting enough in its own right, but for the purposes of this exercise, it can be ignored. The action really begins in December 1946 and January 1947, when the Constituent Assembly held its first set of sittings. Volumes I and II of the Constituent Assembly Debates (all volumes are available online) cover this period. Most of it pertains to administrative details, but the highlight is the Objectives Resolution (moved by Nehru on December 13, 1946), which was meant to be a blueprint for the Constitution. Those minded to do so can wade through the debates around the Resolution; Shiva Rao’s documents have the relevant portions of Nehru’s speech, and Radhakrishnan’s speech commending the Resolution to the Assembly (Volume 2, pages 3 to 18).

After 25th January 1947, the Assembly had a three-month recess, and reconvened on 28th April. In the meantime, in accordance with the Cabinet Mission Statement (under whose auspices the Assembly was Constituted), an Advisory Committee was set up to consider the questions of fundamental rights, minority rights, and the administration of certain frontier areas. Sardar Patel was elected the chairperson of the Advisory Committee, and the Advisory Committee was then further divided into Sub-Committees to consider, inter alia, the issue of fundamental rights (Shiva Rao, Volume 2, pages 56 – 63). The Fundamental Rights Sub-Committee then had three sittings during which drafts of fundamental rights were written, circulated, and debated. The Sub-Committee produced its report on April 16, 1947 (with notes of dissent), and it was this Report that went to the Advisory Committee.  After further debate, the Advisory Committee submitted an (interim) report to the Constituent Assembly.

Therefore, in order to understand what it was that the Constituent Assembly discussed in its sessions from April 28 onwards, it is essential to first read the deliberations of the Fundamental Rights Sub-Committee, and the discussion of the Report in the Advisory Committee, between January and April 1947. These can be found in Shiva Rao, Volume 2, pages 21 – 176, and 210 – 292. These proceedings are somewhat complex in their own right: B.R. Ambedkar, K.M. Munshi, and Harnam Singh all produced draft bill of rights. K.T. Shah and B.N. Rau – the Constitutional Advisor – submitted notes on fundamental rights. In its three sittings in March 1947, the Fundamental Rights Sub-Committee took Munshi’s draft as its blueprint, while also discussing clauses from Ambedkar and Harnam Singh’s drafts from time to time, and referring to Rau and Shah’s work as well. At the end of its deliberations, the Sub-Committee produced an interim report on 3 April 1947, with a draft bill of rights. Members of the Sub-Committee then commented on the draft, and added notes of dissent. The Sub-Committee met on April 14 and 15, took these into account, and then produced a final report – to which the members added their final comments and notes of dissent.

This document was then forwarded to the Sub-Committee on Minorities, which was asked to comment on fundamental rights from the perspective of minorities (Shiva Rao, Volume 2, pages 199 – 209). Because of the paucity of time before the Advisory Committee met, the Sub-Committee on Minorities held a somewhat rushed set of meetings between April 17 to 19, and submitted an interim report. This report, along with the final report of the Sub-Committee on Fundamental Rights, was sent to the larger Advisory Committee (consisting of seventy-two members), which met on April 21 and 22, 1947 (Shiva Rao, Volume 2, pages 210 – 292).

The Advisory Committee debated the draft bill of rights extensively. Proceedings in the Advisory Committee naturally referred to Clauses by their number, so when you read the Advisory Committee proceedings, you have to keep turning the pages and referring back to the Sub-Committee’s final report (Shiva Rao, Volume 2, pages 169 – 176) to connect the debate with the text of the provision that is being debated.  The Advisory Committee then came up with an Interim Report on April 23. Sardar Patel – the Chairperson of the Advisory Committee – forwarded this to the Constituent Assembly, along with the draft bill of rights hammered out in the Advisory Committee, for the sessions beginning on April 28, 1947.

As we can see, therefore, before the Constituent Assembly even met, three Committees, over a period of three months, had met, debated, and drafted a detailed bill of rights. In the interests of clarity, let us call this Committee Drafting: Phase One (February – April 1947). To sum up Phase One:

Constituent Assembly appoints Advisory Committee (seventy-odd members) —> Advisory Committee appoints Fundamental Rights Sub-Committee —-> Drafts and Notes on Fundamental Rights produced and sent to the Sub-Committee –> Sub-Committee deliberates and produces and Interim Report and Draft Bill of Rights —-> Comments and Notes of Dissent by Members —–> Fundamental Rights Sub-Committee Final Report —-> Comments and Notes of Dissent by Members —–> Final Report forwarded to Minorities Sub-Committee to examine from the perspective of Minorities —-> Interim Report of the Minorities Sub Committee —–> Both reports forwarded to the larger Advisory Committee —-> Advisory Committee deliberates —–> Advisory Committee produces an interim report and a modified draft bill of rights —–> Advisory Committee Interim Report and Draft Bill of Rights forwarded to the Constituent Assembly for consideration.

Many important things happened in the first phase. It was here that the enduring distinction between “justiciable” and “non-justiciable” rights (Directive Principles) was first mooted, much to the consternation of K.T. Shah. It was in the Sub-Committee that Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur argued strongly for a right to inter-religious marriages and to a uniform civil code (with Ambedkar’s support), but were voted down. It was in the Advisory Committee that the right to privacy (secrecy of correspondence and prohibition of unreasonable searches and seizures) was dropped from the draft bill of rights, as was the right to vote. Here you find Ambedkar’s eloquent arguments for the link between constitutional rights and the economic structure, and K.T. Shah’s radical proposals to make remuneration for housework a fundamental right. In short, endlessly fascinating stuff. The debates on citizenship – with the framers’ near-unanimous rejection of racial criteria for citizenship – are particularly relevant for the present times. And another interesting aspect of the debates is that they were conducted before Independence, Partition, and the integration of the princely states. So you have many instances where the framers refer to the possibility of the Muslim League “coming into the Assembly”, how to deal with princely states who may want to maintain a monarchical system of government, and how to frame a fundamental rights chapter in the shadow of the fact that the country for which it is being framed is not yet in existence, and nobody knows what it may look like.

Because of the paucity of time, the Advisory Committee finally submitted what it called an “Interim Report on Fundamental Rights”, along with a draft bill of rights, and requested the Constituent Assembly for an extension of time to submit a final report. This was granted. The Assembly then took up the draft Bill of Rights for discussion starting April 29, 1947 (Vol. III of the Constituent Assembly Debates, available online – use the “Complete HTML file” option to view day-to-day proceedings). The debates were lively: as Patel (the chairperson of the  noted, more than 150 amendments were tabled).

The first set of debates spanned four full days – April 29 to May 2, 1947. A large part of the Advisory Committee’s draft Bill of Rights was accepted (for the draft bill of rights approved by the Constituent Assembly, see Shiva Rao, Vol. 2, pages 300 – 304), with various modifications. Some of the clauses that proved particularly contentious – or suffered from ambiguous drafting – were “remitted” back to the Committee (such as the clause prohibiting forced labour, where a dispute arose about whether it banned conscription as well, as well as the clause prohibiting fraudulent conversions and conversions of minors). The Advisory Committee considered these over the summer, and on August 25, it submitted a Supplementary Report to the Constituent Assembly, which contained two re-drafted clauses (primarily to do with religious instruction and admissions in schools), a recommendation to drop the prohibition on forced conversion from the list of fundamental rights, and finally, a list of non-justiciable rights, which would eventually go on to form part of the Directive Principles of State Policy (available online, bottom of page).

The Supplementary Report was taken up by the Constituent Assembly on August 30, 1947 (available online), and adopted. This ended the second phase, which we can call Constituent Assembly: Phase One (April – August 1947), and the draft bill of rights was forwarded to the Drafting Committee.

Constituent Assembly debates, modifies and adopts the Advisory Committee’s draft bill of rights – three clauses sent back to the Advisory Committee – Advisory Committee deliberates and produces a Final Report with redrafted clauses and a set of non-justiciable rights – Final Report forwarded to the Constituent Assembly – Constituent Assembly debates, modifies and adopts the Final Report – forwarded to the Drafting Committee.

The Constituent Assembly would not convene again until January 1948.

This article was first published on  Indian Constitutional Law and Philosophy and republished in the interest of justice.

Article 14 and Genetic Discrimination

In United India Insurance Company v Jai Parkash Tayal, a single-judge bench of the Delhi High Court invalidated a clause of an insurance contract that excluded “genetic disorders” from the scope of insurance. The judgment proceeded on multiple grounds, and makes for fascinating reading. In particular, Justice Pratibha Singh invalidated the clause on the grounds of Article 14 (equality before law), 21 (right to health), and the impermissibility of changing an insurance contract to the detriment of the insured. The Article 21 issue is not one I will discuss here: as readers of this blog will know, the reading in of broad socio-economic rights into Article 21, and their exceedingly uneven application on a case-to-case basis, is not something I am very comfortable with. This case, like so many others, tells us that there is a right to health, and then uses it to achieve a specific outcome, but somewhere along the way, the precise spelling out of the scope, contours and limits of this right, and the nature of the obligations it places upon the State, is lost by the wayside.

What I find much more interesting, however, is the manner in which the Court used Article 14. In paragraph D1, Justice Singh observed:

Article 14 of the Constitution of India prohibits discrimination of any kind. This would include discrimination based on genetic heritage of an individual.

There is, however, something odd about this framing. Article 14 is the equality clause. The non-discrimination clause is Article 15(1), which prohibits the State from discriminating on grounds of race, religion, caste, sex, and place of origin. Moreover, Article 15(1) is a closed list – unlike certain other Constitutions, no additional, analogous grounds can be brought within its ambit. Article 14, on the other hand, is a general equality clause that has been interpreted by the Courts to exclude irrational classification or arbitrary State action, on a case-to-case basis. Unlike Article 15(1), Article 14 does not – a priori – rule out specific grounds upon which differentiation may be based. The distinction between Articles 14 and 15(1) was expressed by Patanjali Sastri CJ in a classic exposition, in Kathi Raning Rawat v The State of Saurashtra (1952)

As we can see, Justice Singh’s observation that Article 14 prohibits discrimination on the basis of genetic heritage appears to conflate Sastri CJI’s distinction between Articles 14 and 15(1).

In the latter part of the judgment, however, Justice Singh modulates the claim. In the context of insurance contracts, she concedes that there may be a class of narrowly defined cases (to be articulated by the policy-makers) where certain kinds of genetic diseases can be excluded by the insurer. Her specific problem is with the width of this exclusion clause (covering all “genetic disorders”) which – as she states in the operative part of the judgment – violates Article 14. Consequently, Justice Singh’s argument is not that “discrimination” on the basis of genetic characteristics will automatically violate Article 14, but rather, it will presumptively violate Article 14, unless strong reasons can be shown that justify the violation. In other words, differentiation based on genetic differences will be subjected to stricter judicial scrutiny than other classifications.

Is there any constitutional warrant for this reading of Articles 14 and 15? I have recently argued that there is, in a defence of the Delhi High Court’s Naz Foundation judgment (SSRN version here). Briefly, the argument is as follows: an analysis of the Constituent Assembly Debates shows that the framers did not intent Articles 14 and 15 to operate as separate silos. Rather, Article 14 was the general expression of the concrete commitment towards non-discrimination under Article 15(1). The framers took the five most publicly salient grounds at the time – race, religion, caste, sex, place of origin – and prohibited all discrimination involving those grounds. However, the framers also realised that forms and sites of discrimination evolve, and what is not salient today can become salient tomorrow (classic examples: sexual orientation, disability, and age, which are all present in some more recent Constitutional documents). For this reason, the framers included Article 14, whose more open-ended language would allow future Courts to develop new grounds of discrimination, and subject them to stricter scrutiny (something akin to a proportionality standard). Unfortunately, however, this possibility has never seriously been explored by the Courts, who have been caught between the classification and the arbitrariness standards under Article 14. Naz Foundation represented the first serious articulation of this vision of Articles 14 and 15(1). United India Insurance Company is another small, incremental step towards it.

Uncertainties over Horizontality

The Delhi High Court was very clear that Articles 14 and 21 applied to all insurance contracts, whether entered into by a State insurer or a private insurance company. This, however, is a problematic conclusion. Articles 14 and 21 very categorically apply to State action. “State”, under Article 12, is limited to government and entities under the “functional, financial, and administrative” control of government. Without some additional reasoning, a private insurance company cannot be brought within the ambit of the fundamental rights chapter.

The Court’s response was to argue that insurance contracts are unequal (like contracts of adhesion, although the Court did not use the term), and place the insurance applicant at a disadvantage. That is correct – and many jurisdictions recognise that such contracts are of a special kind, that cannot be interpreted in a normal way (see the recent decision of the UK Employment Tribunal involving Uber’s contracts with its drivers). However, the remedies for that are provided within contract law: interpret ambiguous terms in favour of the weaker party, and if the unconscionability is clear, void the contract on grounds of public policy. The Court could even have said – as it came close to doing – that such contracts had a public element, and therefore could be subjected to public law norms (which include norms of non-discrimination). There is no warrant, however, for making Part III of the Constitution directly applicable to private insurance contracts, and to the extent the Court did so, I submit that it erred.

The same issue arose in another Delhi High Court decision that made the news recently, Sanghamitra Acharya v State (NCT) of Delhi. Sanghamitra Acharya involved the commitment of an adult woman into a mental hospital at the instance of her parents. Justice Muralidhar, writing for the division bench, held that the woman’s rights to liberty, autonomy and dignity had been violated (especially in view of the Puttaswamy judgment), that the parents, police, and the hospital were in breach of their legal obligations, and ordered compensation. This is, of course, impeccable; in the course of the judgment, however, the Court expressly held that Articles 19 and 21 (along with Articles 15(2), 17, and 23) were horizontally applicable between private parties.

It is true that Articles 19 and 21 are not categorically framed as injunctions against the State. Article 19 stipulates that “All citizens shall have the right… to freedom of speech and expression…” and Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Therefore, there is no express textual bar against reading Articles 19 and 21 horizontally. However, the reference to State restrictions under Articles 19(2) to 19(6), and the specific reference to “procedure established by law” under Article 21, strongly indicates that these Articles are meant to apply vertically, between State and individual. This is buttressed by the fact that where the framers did intend the horizontal application of fundamental rights, they were clear and unambiguous about it (Articles 15(2), 17, 23, 24). And lastly, this is how the Courts have almost uniformly understood and interpreted them (there are some exceptions, such as the Aruna Shanbaug judgment). It is, of course, open to the Delhi High Court to hold that this jurisprudence is misguided; however, such a radical change in the interpretation of Articles 19 and 21, it needed to provide strong reasons for that holding, and also to elaborate its own theory justifying the horizontal reading of Articles 19 and 21. With respect, the Court did not do that.

Legal Interpretation in the Shadow of the Constitution

What the Court did do very well, in my opinion, was bring the Constitution to bear upon the interpretation of the Mental Health Act, which was the relevant legislation at issue. The Court was examining whether the “involuntary admission” into a mental hospital was consistent with the scheme of the Act. Under Section 19, a person could be involuntarily admitted into a mental hospital by their relative or friend, if the medical officer in-charge was “satisfied” that it was in the interests of the patient. The Court held that although Section 19 was a “stand-alone” provision, the rights under Article 21 required that the word “satisfaction” be read as “objective satisfaction”; that is, the medical officer would have to follow the legal definition of “unsoundness of mind” (which is narrow and circumscribed) before allowing involuntary admission. On facts, it was found that the medical professional had not even attempted to apply any objective standards in his determination.

The form of interpretation that the Court engaged in here is one that Indian Courts have attempted in the past, but only sporadically: borrowed from German law, it is called “the radiating effect” put broadly, holds that a Constitution is not merely a set of rights, but an objective “order of values”, and these values “radiate” through the legal system. In concrete terms, a Court is to interpret laws – including private law – in a manner that advances and promotes the constitutional order of values. By interpreting “satisfaction” (an ambiguous word) to refer to “objective satisfaction”, and to justify that reading by specifically pegging it to constitutional rights, the Sanghamitra Acharya is an important judgment in the context of the theory of the radiating effect.

Traces of this are visible in two other judgments the Delhi High Court delivered, on the subject of labour law. In Indu Munshi v Union of India, a division bench of the Delhi High Court ordered the regularisation of a batch of Kashmiri Pandit schoolteachers. The schoolteachers had been forced to flee from the Valley in 1993, and had come to Delhi. They had been given contractual jobs as schoolteachers in 1994 – and then kept on contract for the next twenty-four years. The issue of regularisation is a fraught one, and any Court that wishes to order regularisation has to content with the challenge of the Supreme Court’s Constitution Bench judgment in Uma Devi’s Case, which invoked the constitutional right to equality of opportunity to hold that contractual employees who had been appointed by the “back door” could not later be regularised “at the cost of” other employees. Uma Devi’s ratio has, however, been subsequently whittled down (the High Court discussed some of these judgments), and here Justice Bhat, writing on behalf of a Division Bench, held that, on facts, there was no “back door appointment.” One of the crucial features that weighed with Justice Bhat was the fact that the Kashmiri Pandits had arrived as refugees, and were compelled to accept whatever offer of employment was open to them, without any genuine choice or bargaining power. When combined with the fact that the process of appointments was competitive, and that the teachers had worked against regular (unfilled) vacancies for twenty-two years, as well as a number of other technical factors, Justice Bhat held that, notwithstanding Uma Devi, the case for regularisation was unanswerable. The Court also held that the contractual teachers deserved remuneration that was equal to the sanctioned remuneration for regular schoolteachers. It adopted a broad version of the “equal pay for equal work” doctrine (which focused on the nature of work) rather than a narrow version (which made technical factors such as cadres and sources of appointment – which could easily be undermined – determinative), and again, framed the issue as a right against exploitation:

Turning to the issue of equal salary and remuneration, the Govt of NCT of Delhi had argued that the teachers could not question their emoluments, because they had accepted their contractual status and functioned in that capacity for over a decade and a half. The teachers’ argument is that they had practically no choice; the alternative to accepting the job with reduced emoluments was starvation or no employment. Such a Hobson’s choice is not meaningful. This court agrees with the contention and holds that there cannot be any estoppel in such situations, barring claims to parity. Long ago, in Sanjit Roy v State of Rajasthan, AIR 1983 SC 328, the Supreme Court characterized as forced labour the acceptance, under compulsion of circumstances, by a person without employment, remuneration that was lower than the minimum wage and stated “that it may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under the law to receive.”

And:

In the facts of the present cases too, the court is of the opinion that the mere nomenclature of “contract teachers” is an artificial one given to the teachers who approached this court through the writ petitions that have led to these appeals; they were appointed against regular vacancies, their services are unbroken and have not been continued on account of any stay or court directed interim order; their appointments were pursuant to a constitutionally recognized and acceptable procedure of advertisement and calling names from employment exchange; they each held and hold the requisite qualifications, including B.Ed; all of them were interviewed before their appointment. For these reasons, having regard to their unbroken employment for over two decades, in line with the decision in Umadevi (supra) as understood in Pratap Kishore Panda (supra), Malati Dass (supra) and Sheo Narain Nagar (supra), the said Kashmiri migrant teachers are entitled to be treated as regular appointees. They shall also be entitled to provident fund benefit, gratuity and pension upon attaining the age of superannuation. If any of the petitioners or any other Kashmiri migrant teacher has already attained superannuation or has died in the interregnum the Govt of NCT of Delhi shall calculate their entitlement and release them to such retired employees, and in the case of death, release such amounts to the legal representatives of such deceased employees.

Of course, the Constitution was not directly involved in this case, in the sense that there was no legal provision under challenge. However, it is obvious that the Constitution – and especially, its egalitarian and anti-exploitative ethos – permeated each of the choices the judges had to make. Uma Devi had invoked the doctrine of equality of opportunity to set up “regular” and “back door” appointees in conflict with each other, competing for the same scarce public good (jobs). The Delhi High Court rejected this race-to-the-bottom vision of equality and, instead, focused upon an understanding of equality that was sensitive to exploitation and disparities in bargaining power, to hold that Uma Devi was inapplicable to the present case, and furthermore, the constitutional principle of equal pay for equal work would also apply.

The Constitution was more directly at play in M/s Metrro Waste Handling v Delhi Jal Board, a brief judgment concerning manual scavenging, and bookending its holding by quotes from Dr. B.R. Ambedkar. The Delhi Jal Board issued a tender for mechanised sewer cleaning, where it did two things: first, it stipulated that only one machine would be issued per bidder; and second, it stipulated that preference would be given to the families of deceased manual scavengers and ex-manual scavengers. The first condition – it argued – was to encourage small entrepreneurs and the underprivileged class to apply. The justification for the second is obvious. The Petitioner challenged the first condition as being arbitrary, and the second as imposing a “100 percent reservation”, which was unconstitutional.

The Court rejected both arguments. On the first, it found that the DJB had set up an elaborate system of loans and other forms of aid to genuinely enable underprivileged sections to effectively bid for the tender; the argument from arbitrariness, therefore, was dismissed. From a constitutional point of view, however, the second issue is more interesting. The Court rejected the argument that the DJB’s order of preference was establishing 100 percent reservation. This was not – it observed – a system of “quotas”:

What is in issue, however, in this case is the attempt of the state, uniquely to ensure that the livelihood and lives of sewage workers performing manual scavenging tasks are meaningfully uplifted. The system of preference is not reservation, in any sense of the term. The court recollects what was held in Government of Andhra Pradesh v Vijaykumar1995 (4) SCC 520 that the wording of Art. 15(3) enables “special provisions” is wider than Article 16(4) which enables a special provision by way of reservations. Article 15(3) is wider and includes “positive action programmes in addition to reservations”.

However, if what was involved was not reservation, then the provisions of Articles 16(4) (since it specifically mentions reservation). Nor could 15(3)’s “special provisions” be invoked, since they are limited to women and children. The only alternative, therefore – as the Court noted – was that preferential treatment of underprivileged classes was itself consistent with the guarantee of equality of opportunity under Article 16(1). Or, in other words – as the concurring opinions of Justices Mathew and Krishna Iyer had famously held in NM Thomas, but which were not subsequently developed in detail – the constitutional vision of equality is a substantive vision, which factors in structural and systemic discrimination, and views the overcoming of structural barriers as part of the very meaning of equality. As Justice Bhat – again, writing for a division bench – held:

Seen from the context of the decisions quoted previously, the NIT conditions are not meant to exclude the “general” class of citizens. They afford an opportunity to an utterly marginalized section a “step up” (or to use the expression in Nagaraj (supra), “catch up”) with the other citizens. The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as “a backward section of the Hindu community who were handicapped by the practice of untouchability”). The state, i.e., DJB, in our opinion, had a compelling interest in promoting the welfare of these class of citizens, while conceiving and implementing this system of preferences, in the impugned NIT.

 

Indirect Discrimination

This provides an ideal segue into the last case: Madhu v Northern Railway. Madhu involved the interpretation of certain Indian Railways rules. The dispute centred around a railway employee taking his wife and daughter “off” his list of “dependents” entitled to free medical treatment, on the ground that he had “disowned” them. The Railways argued that for a person’s dependents to avail of treatment, he had to make a “declaration” that they were part of his family; in this case, since the employee had refused to do so, the Railways was justified in denying them medical treatment. The Division Bench, speaking through Justice Bhat – yet again! – rejected this argument, arguing that not only was such an interpretation textually untenable, but also that accepting it would perpetuate indirect discrimination:

The Northern Railways contends that the Appellants are not denied the medical card because they are women, but rather because their husband and father had not made the requisite declaration. However, this explanation is not enough. It is not sufficient to say that the reasoning of Northern Railways did not intentionally discriminate against the Appellants because they were women. Law does not operate in a vacuum and the reasoning and consequent decision of Northern Railways must be examined in the social context that it operates and the effects that it creates in the real world. Even a facially neutral decision can have disproportionate impact on a constitutionally protected class.

The reason that the drafters of the Constitution included Article 15 and 16 was because women (inter alia) have been subjected to historic discrimination that makes a classification which disproportionately affects them as a class constitutionally untenable. The Northern Railways decision to not grant the Appellants medical cards clearly has such a disproportionate effect. By leaving an essential benefit such as medical services subject to a declaration by the railway officer/servant, the dependents are subject to the whims and fancies of such employee. The large majority of dependents are likely to be women and children, and by insisting that the railway officer/servant makes a declaration, the Railway authorities place these women and children at risk of being denied medical services.

It is irrelevant that the Railways did not deny them the medical card because the Appellants were women, or that it is potentially possible that a male dependent may also be denied benefits under decision made by the Railways. The ultimate effect of its decision has a disparate impact on women by perpetuating the historic denial of agency that women have faced in India, and deny them benefits as dependents.

The concept of indirect discrimination – discussed in some detail on this blog previously – has been incorporated into the jurisprudence of many other constitutional courts (the High Court cited some of them). Indian Courts have taken tentative steps towards it, but Madhu represents perhaps the first full-blooded articulation and defence of indirect discrimination as a form of discrimination prohibited by the Constitution. It will, hopefully, be the first of many instances.

Source : This Article was first published on Indian Constitutional Law and Philosophy   and republished by AJRI in interest of justice

New Delhi (AJRI) ; Deliberative Democracy :The anti-defection law, introduced by the 52nd amendment to the Indian Constitution, prohibits legislators from voting against their party’s whip on any legislation, or voluntarily giving up membership of their party. Legislators who violate their party’s whip stand to lose their place in parliament.

Much of the rationale for such law – indicated by the Parliamentary Debates that went into its framing – seems to have been the prevention of horse-trading.

This was evidenced in recent fears about corruption in the aftermath of the Karnataka election. But the scope of the amendment is wider than that, since it does not just forbid legislators from voting against their party during a trust motion or no-confidence vote. Rather, it also seeks to stop them from voting against the party line on any legislative matter where a whip is issued.

Following the Supreme Court’s 1996 ruling in G. Viswanathan vs The Honourable Speaker, Tamil Nadu Legislative Assembly, the law binds a member of parliament (MP) to her party’s directives even if that party has expelled her. India is among a handful of states—the others being Pakistan, Bangladesh and Fiji—that bind MPs to the will of the party leadership in this manner.

The anti-defection law, thus framed, has important negative effects on parliament’s capacity for discussion. Why, one might ask?

After all, the anti-defection law merely prohibits legislators from voting against the party. But this would ignore ways in which restrictions on the vote affect legislators’ voices as well. Constraints on how legislators vote can restrict the formation of opinions contrary to their party’s line.

If the only position that an MP is required to endorse is the one mandated by their party, this leaves them with little incentive to engage in the demanding task of scrutinising alternative ideas. Fetters imposed by the anti-defection law can also restrict the expression of dissent through their chilling effect on backbench MPs. If a legislator criticised her party’s stance and publicly expressed disagreement, she would ordinarily be expected to demonstrate consistency by voting against it.

This is particularly true where disagreement runs deep or revolves around an issue considered central to her political project. But if one criticises the party on a wide range of issues, or vehemently so on some particular issue, electors might ask why one yet continues to remain member of that party and vote in accordance with its whips. ‘Why not just vote against your party if you disagree that much’, electors could ask. Party leaders could raise the cost of cross-voting by penalising dissenting voters. At the same time, legislators do not wish to be viewed as hypocrites.

As a result, putting up a façade of consistency means that one is unlikely to express opinions contrary to that one is required to vote for. Finally, the anti-defection law also restricts the uptake that legislative dissent is likely to receive. In well-functioning parliaments, even when backbenchers ultimately vote with their party, they can exercise considerable influence behind the scenes.

Party leaders have to anticipate their backbench’s reaction, and put effort into allaying their concerns so as to secure their consent. In India, on the other hand, the anti-defection law takes away any such incentive for party bosses to do so, by enabling them to rely on whips rather than discussion with their backbench colleagues.Such constraints on legislation have important implications for legislative discussion.

In the first instance, they undermine the benefits of the legislature’s numerical size. There is a reason why parliaments, compared to judiciaries, are large-sized bodies. With their total strength of 545 and 250 members, the Lok Sabha and the Rajya Sabha are considerably larger institutions than the highest court in the country.

This is because legislatures are supposed to pool information widely dispersed across a society. Their role is to ensure that varied interests in a large, heterogeneous country like India’s find representation through an appropriately sized body of persons. Following recent innovation in the social sciences and political theory, we conceive the primary strength of parliaments as their ability to manifest the wisdom of the multitude. For instance, following Scott Page and Lu Hong’s experimental work, Helene Landemore’s book, Democratic Reason draws upon their ‘diversity trumps ability theorem’, and argues that inclusive groups of diverse decision-makers outperform small groups of expert ones.

However, the anti-defection law undermines the numerical benefit of the legislative chamber, restricting effective decision-making to a small, relatively homogenous group of party leaders.

Further, the anti-defection law can also deprive us of the benefits of having two chambers. There is a reason why the framers of the constitution insisted on establishing two legislative houses: the Lok Sabha and the Rajya Sabha. One of the primary thrusts behind this design was that law-making bodies, like any other collective, are fallible.

They can make errors, pass laws in haste, or fail to adequately consider some relevant interests. Bicameralism offers the opportunity to obtain a second opinion on legislative affairs.

At the moment, the ruling party lacks a majority in the Rajya Sabha. But what if this were not the case?

In that case, the government, with its majority in parliament, could enact laws in the Lok Sabha, and issue a whip to see those measures through in the Rajya Sabha as well. In such cases, second chambers cannot really offer a second opinion on decisions adopted by the first chamber.

For second chambers to serve this purpose, they must be constituted of a distinctive set of persons. To see why, imagine that all members of the ruling party in the second house were chosen from that party’s MPs in the first house. In this hypothetical case, some legislators would serve a dual role as members of the first and the second chamber of Parliament. This situation would be deemed unacceptable as a way of offering a second opinion rather than allowing members of the first chamber to re-affirm their own decision.

After all, MPs already do so in the course of multiple readings of a bill in the first chamber. Deliberative autonomy and the ability to form independent judgments is crucial for the distinctiveness of legislators. But distinctiveness cannot be simply about the physical presence of two different sets of legislators.

If the only permissible view they can voice is the one sanctioned by the party’s leadership, and if they lack the capacity to form opinions that differ from that view, then distinctiveness no longer obtains. We, then, lose, an important benefit that bicameral division of the legislature offers.

Finally, there is a third negative cost that the anti-defection law imposes on legislative discussion. Part of the role of a well-functioning legislature is to clarify for the wider public the different shades of opinion that exist on any topic. Parliamentary discussion should be oriented at demonstrating the underlying dimensions on which various political disagreements exist, locating different political parties on the space of political reasons. By stifling the expression of dissenting views, the anti-defection law undermines parliament’s ability to offer this map of opinion. In doing so, it can also foster sharp polarisation, because we fail to see how internally variegated parties are, and how there are political actors across the aisle who might actually agree with us. Consider, for example, a debate on a healthcare policy. It is valuable for us to see how, despite the opposition party leaders’ criticism of that policy, there are members within that very party who agree with the government.

In India, the deliberative costs of the anti-defection law are exacerbated by its lack of adequate intra-party discussion. Were parties to offer vibrant internal mechanisms for deliberation, we might think that the constraints they impose within are parliament are less troublesome. However, the dictatorial state of our parties precludes such a stance. So far, much of the commentary on the Indian parliament has focused on the lack of adequate discussion caused by frequent disruptions. This is understandable. The scale of disruptions and the rowdy scenes we have come to witness in recent years are worrying symptoms for the health of our democracy.

But we should not assume that all our legislators need to do is behave themselves and conduct themselves in an orderly fashion. As I have tried to show, the problem lies much deeper. What they can and are likely to say is conditioned by the anti-defection law. Even if disruptions stopped, and legislators could speak more freely, parliamentary discussion is likely to fall short of deliberative ideals.

This article was written by Udit Bhatia. It is based on the article, Cracking the Whip: The Deliberative Costs of Strict Party Discipline in the journal, Critical Review of International Social and Political Philosophy

New Delhi (ABC Live):Governor Role in Hung Assembly : Over the past 68 years, there have been many controversies regarding the role of the Governor and the discretion accorded to her ‘by or under this Constitution’.

The most recent example of this was the controversy in Karnataka, which began with Mr. Yeddyurappa of the BJP being sworn in as Chief Minister, and ended instead with the Congress-JD(S) alliance winning the floor test.

While it appears that the worst of the political crisis has passed, a petition in the case of G. Parameshwara v. Union of India on the question of exercise of the Governor’s discretion in the appointment of a Chief Minister is pending before the Supreme Court.

On the face of it, it appears that there are two main questions which the Supreme Court must address- a) Whether, despite Articles 163(2) and 361, the Court can hear a challenge to a Governor’s decision inviting a party or combination of parties to form the government, taken in the exercise of her constitutional discretion; and b) Whether the Court has the authority to circumscribe such discretion, specifically in the appointment of a Chief Minister under Article 164(1) in the case of a hung assembly.

Through this post, I aim to analyse past judicial pronouncements and the bearing they will have on the outcome of G. Parameshwara v. Union of India.

Understanding the Scope of Gubernatorial Discretion

Unlike the President, the Governor has been accorded some discretion in the exercise of her duties by way of Article 163-

  1. Council of Ministers to aid and advise Governor

(1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion;

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion;

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

While the President is bound to act in accordance with the aid and advice of the Council of Ministers, the Governor exercises three kinds of powers

  1. executive power taken in the name of the Governor;
  2. power exercised by her on the aid and advice of the Council of Ministers, headed by the Chief Minister; and
  3. power exercised by her in her sole discretion.

In the case of Samsher Singh v. State of Punjab (para. 153), the Supreme Court recognised some situations in which the Governor acts in her own discretion. Through a merely indicative and not an exhaustive list, the appointment of a Chief Minister where the paramount consideration is that she should command a majority in the House, the dismissal of a government which has lost majority but refuses to quit office, and the dissolution of a House, were seen as part of the Governor’s discretionary power. That, however, leaves one question unanswered: are there any circumstances in which the Courts can review the Governor’s exercise of her discretionary powers?

On Judicial Review

Judicial review is the power of the judiciary to examine the actions of the co-ordinate branches, ie., the executive and legislature, under the Constitution or statutes. Judicial review, especially in instances of formation of government, presents a distinct dilemma in India. Considering that India is a nation with a quasi-federal structure as well as the Westminster system of parliamentary democracy, there have been recurring conflicts between Parliamentary Sovereignty and Judicial Supremacy.

A.V. Dicey defined Parliamentary Sovereignty as the right of the Parliament to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

This is a feature prevalent in the unitarian system followed in the United Kingdom. However, as far back as in 1861, J.S. Mill observed that there can be no true federal spirit without the power of judicial review.

Amongst the various organs and levels of the government, there must be an independent umpire to settle disputes. The supremacy of the Constitution, and the authority of the Court to interpret it, can never be questioned.

Applying this in the Indian scenario, it means that the conduct of Parliament is not immune to questioning by the Court.

In fact, in In Re., Keshav Singh (para. 38), the Supreme Court clearly observed that the dominant feature of the British Constitution, ie., parliamentary sovereignty, has no place in a federal constitution as in India.

In view of this, it can be inferred that the Court can also look into questions pertaining to formation of government. Yet, if one were to go by the bare text of the Constitution, there is no scope to challenge a decision taken by the Governor in her discretion, one of the many such decisions being the appointment of a Chief Minister. In fact, there is an explicit bar against this, expressed in Articles 163(2) and 361, stipulating that the Governor shall not be answerable in any court of law for the exercise and performance of her powers and duties.

There already exists jurisprudence on the issue of judicial review of the Governor’s sole discretion. Beginning with the landmark case of B.R. Kapur v. State of Madras (para. 51), the Court struck down the appointment under Article 164(4) of Ms. Jayalalitha as Chief Minister while she was still a non-legislator, on the ground that she suffered from disqualifications under Article 191. While placing some constitutional limitations on the powers of the Governor (a point discussed later in this post), the Court also took cognisance of Article 361. Here, the Court judicially reviewed the Governor’s discretionary action on the ground that the immunity under Article 361 does not extend to the appointee. Therefore, while the Governor herself cannot be held responsible, the Court can still go into the question by making the appointee prove the constitutionality of her own appointment.

Notwithstanding that Rameshwar Prasad (VI) v. Union of India (para. 173) is a case pertaining to the declaration of Emergency under Article 356, the Court still had to navigate the immunity granted by way of Article 361. In this case, the Governor had acted in his sole discretion by claiming a breakdown of constitutional machinery in the state of Bihar, as no single party had been able to secure a majority in the Legislative Assembly, and thereby, the Governor had been unable to appoint a Chief Minister. In this case, the Court’s approach was that the personal immunity from answerability provided in Article 361 did not bar the challenge that may be made to the actions of the Governor. In such a situation, it becomes incumbent on the respondent state government to defend the exercise of gubernatorial discretion.

The momentous decision in S.R. Bommai v. Union of India (para. 118) expanded the scope of judicial review and held it to be a basic feature of the Constitution, which could not be done away with even in exercise of constituent powers. In this case, when the support to the ruling party in Karnataka was declining, the Governor recommended a proclamation of Emergency to the President. The Court held that in cases where the Governor’s decision smacked of mala fides, arbitrariness, or irrelevant considerations, the Court had the power to strike it down.

Lastly, the position regarding justiciability of a Governor’s discretion was cemented in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (para. 148). Here, the Court applied the doctrine of harmonious construction by analysing the provisions surrounding Article 163 to conclude that if the decision of a Governor in her discretion were to be final, she would be converted into an all-pervading super-constitutional authority. To avoid this, the Court would have to be conferred the power of judicial review.

Hence, in light of the above considerations, it is likely that the Court will permit judicial review of the Governor’s sole discretion in G. Parameshwara v. Union of India.

 On Gubernatorial Discretion: Three Possibilities

There could be three possible outcomes of this petition. The Court could (a) uphold full discretion to the Governor in the aspect of appointment of a Chief Minister, or (b) circumscribe the discretion with judicially enforceable guidelines, or (c) completely restrict the Governor’s power to exercise his discretion in this regard.

Complete Discretion

The consequence of upholding full discretion of the Governor in the appointment of a Chief Minister is that the Court would not have the power to review any exercise of such sole discretion. There are a number of High Court decisions that have ruled so in the past. From S. Dharmalingam v. Governor of Tamil Nadu to Sapru Jayakar Motilal C.R. Das v. Union of India, the common reasoning appeared to be that the Governor acting under Article 164(1) exercised absolute, final discretion and that there was no possibility in the Constitution to read into Article 164(1) any restriction or condition.

This view, however, has been rejected by the Supreme Court when it overruled the cases of M.P. Sharma v. P.C. Ghose and Pratapsingh Raojirao Rane v. State of Goa in Nabam Rebia v. Speaker, Arunachal Pradesh Legislative Assembly(para. 155.6). Both M.P. Sharma and Pratapsingh upheld the view that the appointment of a Chief Minister fell within the ambit of exercise of the Governor’s discretion, and that the same could not be questioned in any Court.

Hence, it is highly improbable that the Supreme Court will decline to intervene in the matter, considering that the prevailing view seems to be that the exercise of pleasure under Article 164(1) does not lie solely in the domain of the Governor’s discretion.

Limited Discretion

If the Court were to adopt this approach, it would uphold the Governor’s discretionary power, yet temper it with enforceable guidelines, to be applied specifically in the situation of a hung assembly. Therefore, while the Governor would still act without the aid and advice of the Council of Ministers, she would be bound by these guidelines.

In B.R. Kapur v. State of Madras (para. 72), it was held that the Governor was not bound by the will of the people, but rather by the spirit of the Constitution. Consequently, a Governor cannot permit, nor be party to, any subversion of the law. ‘Government, or good governance, is a creature of the Constitution’. The Governor, being the topmost executive functionary in a state, bears the responsibility of preserving and maintaining the democratic framework.

In this regard, guidelines have already been stipulated by the Sarkaria Commission in 1988, the recommendations of which were echoed by the M.M. Punchhi Commission in 2010. In its report, it recognised that in choosing a Chief Minister, the Governor’s guiding consideration should be to call that party/alliance which commands the widest support in the Legislative Assembly to form the government. If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:

  1. An alliance of parties that was formed prior to the Elections.
  2. The largest single party staking a claim to form the government with the support of others, including ‘independents’.
  3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
  4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‘independents’ supporting the Government from outside.

This appears to be the most likely outcome of the pending petition in question. While retaining a semblance of the constitutional discretion accorded to the Governor, the Court would still exercise ultimate authority over it, by laying down parameters similar to those prescribed in the Sarkaria Commission Report and permitting review of the discretion, should the Governor divert from these guidelines.

Negation 

The third option is that the Court could completely restrict the exercise of the Governor’s discretion in the appointment of the Chief Minister. Article 164(1) merely states that the Chief Minister and other ministers shall be appointed by the Governor. No where in the text of the Constitution is it mentioned that the Governor must invite the leader of a party/alliance who will then take oath as Chief Minister after which she, in the case of a hung assembly, would display her strength on the floor of the House.

Instead, the Court could rule to discard all the intermediary steps, and order a speedy floor test (in order to prevent horse trading) after every election verdict which produces a hung assembly. It is accepted (para. 119) that the proper test for the strength of the government is on the floor of the House, and not dependent on the subjective satisfactions of Governor. The floor test would automatically show which party/alliance enjoys the support of the majority of the House. In such a situation, the role of the Governor would simply be limited to just appointing the Chief Minister, thereby not requiring any exercise of her discretion. In fact, this possibility has already been recognised in the case of K. A. Mathialagan v. Governor of Tamil Nadu (para. 11).

This would be in accordance with principles of parliamentary democracy as envisaged in S. R. Chaudhuri v. Union of India (para. 21). Here, the Court observed that representation of people, responsible government, and accountability of the Council of Ministers to the Legislature form the pillars of a parliamentary democracy. There can be no better way to ensure this than by reducing Executive interference and omitting this aspect of the Governor’s discretion. ‘In a democracy governed by rule of law, the only acceptable repository of absolute discretion should be the courts.’

The concerns regarding the abuse of gubernatorial discretion were raised even in the Constituent Assembly. H.V. Kamath, Shibban Lal Saxena, and Rohini Kumar Chaudhuri, all expressed apprehensions that the discretion accorded to the Governor would be wrong in principle and contrary to the tenets of constitutional government. It was considered all the more serious as the Governor was to be nominated and not elected. The view was that the discretion under Article 143 (as it then was) was a colonial relic that should have been done away with. To this, B.R. Ambedkar’s only response was the Article should be retained as the constitutions of Australia and Canada had similar provisions and there had been no need to delete them even after nearly a century.

In today’s times, the concerns of abuse of discretion are valid. Yet, this radical approach of negating discretion completely appears to be an unlikely path for the Court to follow. It, however, poses an interesting academic question.

Conclusion

The judgment in G. Parameshwara v. Union of India is highly awaited as it will finally lay to rest issues pertaining to the Governor’s role in a hung assembly. This will have consequences on the health of the federal democracy and constitutional spirit in the country.

Source : This Article was first Published in Indian Constitutional Law and Philosophy Republished in interest of justice.

Panchkula (Association for Judicial Reforms India ) : Judicial Reforms India : Independence Judiciary : Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,

Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay,

Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,

Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality,

Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens,

Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct,

The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.

Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

Qualifications, selection and training

10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

Conditions of service and tenure

11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.

Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

Discipline, suspension and removal

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Panchkula (Association for Judicial Reforms India ) : Judicial Reforms India : Reforms in service of summons Delay in service of summons is a major hurdle in the speedy delivery of justice.

Certain amendments have already been made to the CPC to address this issue. In addition to the legislative changes, the National Mission had requested High Courts and State Governments to consider measures such as a one-time collection of process fee, clubbing of process fee with the court fee, and the use of Information Communication Technology (ICT) systems for service of process.

Speedy Summons Service

Several High Courts have responded positively to the suggestion on collection of one time process fee by stating that they have either implemented or are in the process of considering such measures. As regards the suggestion on adoption of ICT, it is noted that a majority of High Courts are yet to formalize and adopt ICT tools for the purpose of expediting process service.

Given that the efforts to make courts more ICT enabled have been ongoing for several years now, there is an urgent need for States and High Courts to act expeditiously on this issue.

Provisions relating to process service in civil cases are laid down in Section 27, 28,

29, 143 and Order V (Rules 9 to 30), Order XXVII (Rule 4), Order XXIX (Rule 2), Order XLVIII (Rules 1, 2 and 3), Order III (Rules 3, 5 and 6), Order XXVIII (Rule 3),Order XXX (Rule 3), and Order XLI (Rule 14) of the Code of Civil Procedure. Some of these provisions have been amended by Amendment Acts in 1999 and 2002 to tackle the problem of delays in court processes. The provisions that have undergone amendments are mentioned below:

Civil Procedure Code, 1908 as amended in 2002 for Speedy Summons Service 

  1. As per section 27, the summons may be served on such day not beyond thirty days from the date of the institution of suit.
  2. Order V Rule 1 which also deals with service of summons has been amended and states that no service of summons is necessary in case where the defendant has appeared at the time of presentation of the plaint and admitted the petitioners claim. Amendment has further added a proviso that the defendant has to file his written statement within thirty days from the date of service of summons and if the defendant fails to file the same within the prescribed period, the court may extend the time but not more than ninety

days for the reasons to be recorded in writing.

  1. Rule 9 Order V deals with delivery of summons by court. This Rule as amended in 2002, mandates delivery has to be either through proper officer or by post acknowledgment due or by speed post or through an approved courier, fax, email.
  2. Rule 9- A provides service could also be done by plaintiff by taking delivery of summons from the court and tendering the same to the defendant personally or by Fax, courier, email etc.
  3. Rule 9 Sub Rule 4 provides service of summons on a defendant residing outside the territorial jurisdiction of that court through any one of the courier services approved by it. An improvement over the 1999 Act insofar as the local court has now got power to approve the courier service, whereas earlier only the high courts had the power to do so. The decentralization would speed up the process of service.
  4. Order IX Rule 2 provides dismissal of suit where summons are not served in consequence of plaintiff’s failure to pay costs. Where on the day fixed for hearing it is found that on the failure of the plaintiff to file process fee or pay court fee or any other reason attributable to the plaintiff, service has not been affected on the defendant, the court may dismiss the suit.                                                                                                                      Criminal Procedure Code, 1973 for Speedy Summons Service 

Similarly, in criminal cases service of process is required for seeking production of the accused, witnesses or related parties whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence.

Also, his presence is necessary if imprisonment is to be enforced. For this reason, Chapter VI (Sections 61 to 90) of Code of Criminal Procedure (Cr.P.C) provides three ways for compelling the appearance of any person who is required to be present in the court: 1. Summons, 2. Warrant, and 3. Proclamation for person absconding While summons is an order of the court to the person to appear before it, warrant is an order of the court given to a third person (normally a police officer) to bring the person who is required to be present in the court.

It is at the discretion of the judicial officer to decide which method to be used in a particular situation, who is guided by the provisions of this code. The third method is used when the person has absconded or is in any other way avoiding arrest, in which case the court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publication of such proclamation.

The code broadly classifies all criminal cases into summons cases and warrant cases. However, when a summons is not productive in making a person appear before the court, the court may issue a warrant to a police officer or any other person to forcibly produce the required person before the court. When a request in appropriate format is made to the court for compelling the appearance for a person, the court either rejects the request or issues a summons.

  1. As per Section 61, every summons issued by a court under this code shall be in writing and in duplicate. It must be signed by the presiding officer of the court or by such other officer as the high court may, from time to time, by rule direct. It must also bear the seal of the court.

A person who is summoned is legally bound to appear before the court on the given date and time. Willful disobedience is liable to be punished under Section 174 of Indian Penal Code ( IPC). It is a ground for contempt of court.

  1. Section 204 of Cr.P.C empowers magistrate taking cognizance of an offence to issue a summons if there is sufficient ground for proceeding in a summons case. If it is a warrants case, he may issue a warrant or a summons as he thinks fit.
  2. The summons should contain adequate particulars such as the date, time, and place, of the offence charged. It should also contain the date, time, and 5 place where the summoned person is supposed to appear. The standard format of a summons is given in Form 1 of second schedule.
  3. Section 62 describes the procedure for serving a summons on a person as follows – (i) Every summons shall be served by a police officer, or subject to such rules as the state government may make in this behalf, by an officer of the court issuing it or other public servant. (ii) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the copies of the summons. (iii) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt thereof on the back of the other copy.
  4. Section 65 lays down the procedure for service of summons by way of affixation and Section 69 states that the service of summons on a witness can also be done by post in addition to other modes of service.
  5. However, Section 87 empowers a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this action.
  6. Section 202 of Cr.P.C deals with postponement of issue of process. Many a times false complaints are filed against persons residing at far off places simply to harass them which also leads to clogging of frivolous litigation. In order to see that innocent persons are not harassed by unscrupulous persons, this section was amended in 2005 to make it obligatory upon the magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or any other person he thinks fit for finding out whether there is sufficient ground for proceeding against the accused.
  7. Section 105 provides for reciprocal arrangements to be made by Central Government with the foreign governments with regard to the service of summons / warrants/ judicial processes. Ministry of Home Affairs have issued 6 comprehensive guidelines for service of summons/notices/judicial process on the persons residing abroad.