The Right to Service -- A Tool for Better Governance

(By D.B. Binu. Advocate, General Secretary, Human Rights Defence Forum, Ernakulam)

A memorandum was submitted by Anticorruption Peoples Movement to the Chief Minister of Kerala in a public meeting organized at Kochi on 5.6.2011.One of the demands in the memorandum was to give effect a draft bill submitted by the Human Rights Defense Forum under the caption “The Right to Service Act 2011”.  The Chief Minister announced few days after the said public meeting that the government is proposing to bring legislation that assure its service to the people within a time frame acknowledging the right of the people to get service within a reasonable time.  In the draft bill submitted by the Human Rights Defense Forum, there were clauses to deal sternly with officers who have failed to ensure service within the stipulated time. Penal clauses including fine and disciplinary proceedings were some of the important salient features of the draft bill. However the bill proposed by the government and that ultimately become the Right to Service Act 2012 failed to incorporate  stringent clauses in the Act with the result the Act has become a mere eye wash. The assurance of the government for guaranteeing service within a reasonable time becomes a fallacy   for more reasons than one. The Act has left the people in lurch without providing a forum to agitate his grievances other than the same department where as the Act such as Right to Information Act 2005 provided an independent forum to agitate the grievances of the applicants.

The fine that could be imposed on officer who fail to ensure service under the Right to Service Act itself is meager and compared to the loss of the person deprived of the assured service, it is insignificant. That is to say, the Act failed to ensure service within a reasonable time frame.  Various departments have been given a big leverage to fix the time limit for entering service and authorities such as 1st and 2nd appellate authorities under section 3 of the Act. Even the services that could be given across the table on the same day and which require no investigation or spot inspections have been now made available unreasonably many days after the date of application. For example ownership certificate of the building or possession certificate etc which has records readily available at the office for verification.

Completely overlooking section 3 of the Act, the Personnel Department for Administrative Reforms, issued orders fixing time limit for tendering service by some departments. These orders are legally unenforceable since Personnel Department for Administrative Reforms has no power to issue such orders in view of the specific power given to each department for issuing such orders.

The Act does not provide any provision for payment of compensation to the citizen who has sought service. The enactments in other States have made provisions for payment of such compensation. 

The Office of the Chief Minister has a Grievances Redressal Cell. That office presently has not been brought under the Right to Service Act. It is only reasonable to ensure at least some services such as medical relief etc within the ambit of services. 

The services covered under the citizen’s charter prepared by the departments should be compulsorily included in the definition of service under the Act and the list should be one of an expanded rather than a short listing the items already covered by the citizen’s charter. 

In order to ensure the timely service to citizens, the officers must be available at the office during the period of office hours and that his disposal of files should be monitored periodically lest there will be accumulation of arrears justifying a demand for enlargement of  stipulated time. In order to ensure the presence of officers at the work place, punching system in all offices can be introduced. Further use of mobile phones at the office should be restricted and all calls should be transferred through PBX system.

Further file keeping and digitalization of files have to be streamlined promptly with data back up. Considering power failures, the computers should be connected to centralized UPS. 

The officers should be given trainings for keeping files and updating digitalized back up data and for improving public relations. They should also be given legal awareness on office matters and legal implications of their actions /omissions. 

High Court of Kerala on Cases Involving Co-operatives, 2012

(By R. Muralidharan, Deputy Registrar of Co-operative Societies (Planning & Legal), Puducherry)

Quantitatively not many decisions have been rendered by the High Court of Kerala on co-operatives, but qualitatively the judgments have the impact on the working on the co-operative societies. The judgments delivered during the year 2012 are given, chapter-wise.

Management 

Even though the ultimate power of bank is with general body, S.28 authorizes the general body to constitute the managing committee and entrust the management of the affairs of the society to such committee. Of course wherever provisions of the Act and Rules and by-laws required ratification of the decisions of the managing committee by general body, the same is done. However the question cropped up before the Division Bench in Thrissur District Co-operative Bank Staff Association v. Registrar of Co-operative Societies (2012 (4) KLT 631) was whether the managing committee which is the delegate the general body can further delegate important functions like loan sanctioning to sub-committees constituted by them that too only with employees. Managing committee itself is a delegate of the general body and therefore they cannot delegate essential functions entrusted in them under the by-law further to another delegate constituted by them.

Sanctioning of loan probably is the most important and sensitive work because if loans become bad, bank will suffer and high bad debt will lead to even closure of the bank. Sanctioning of the loan is certainly a managerial function which cannot be delegated to clerical staff of the bank. There is no scope of completely eliminating members of the managing committee from the committees and sub-committees constituted for sanctioning of loan. However, it may not be possible for the bank to have every loan application paced before the full committee for sanctioning. So much so delegation could be possible by constituting sub-committee with at least two members of the bank and along with probably Secretaries like Secretaries, Managers or even Assistant Managers. Further, petty loans could be authorized to be approved by General Managers or even Branch Managers under proper guidelines.

Privileges 

(i) The question raised in Manjeri Co-operative Urban Bank Ltd. v. State of Kerala (2012 (1) KLT 51) was whether the remission contemplated in the G.O. be claimed by a co-operative society which acquires land for purposes unrelated to its business. The society resolved to purchase a parcel of land lying adjacent to its head office for purpose of putting up a building for its use. Thereafter owner of the land who was also a member of the society executed a sale deed. Sale deed was presented for registration with a recital to the effect that as it is executed in connection with business of society stamp duty is not paid thereon. Stamp duty was held payable by the District Registrar. This decision was challenged. It was held that remission from stamp duty is certainly not available to an instrument executed by someone other than a member or officer of the society. There is no provision in the Act or the rules that a society can purchase immovable property only from its members. Unless the instrument is one executed in relation to the business of a society, remission of stamp duty cannot be claimed. The remission contemplated in the second limb of paragraph 1(a) of the order cannot be claimed by a society which acquires land for purpose unrelated to its business. 

(ii) There is nothing wrong in society making capital outlay in the form of a construction of building by acquiring land, but the same should be done only after making proper study about market conditions, availability of tenants and business in the area so that the investment brings reasonable return to the society. The basis condition should be that the capital employed should be productive and should bring reasonable return to the society. Unless the Registrar is satisfied on these matters, no approval should be granted under R.54, no matter the managing committee of the society has passed resolution approving it and that the Memorandum and Articles of Association of the society may authorize it. Even though co-operative societies function like companies wherein the ultimate authority is with the annual general body, it is common knowledge that most of the members are borrowers who have no interest in the management of the society and only for the purpose of taking a loan they take membership. Therefore, much reliance cannot be placed on decision in the general body meeting of the society and so much so, there is necessity for strict control on societies by the statutory authorities, mainly to protect the interest of depositors who are members of the public. Even investment by the society in land and building can only be from profits retained in the form of reserve and no investment should be made in land and building or for any other capital outlay from public deposits retained by the society which have to be used only for business purpose, i.e., as working capital for making advances on interest. Public deposits are debts due to the depositors and societies should not be allowed to borrow for non-productive investments. The funds of the society referred to in R. 54 is own funds and no borrowed funds which include public deposits also, so held the Division Bench in Misbah Salem v. Erattupetta Aided School Teachers Co-operative Society (2012 (4) KLT 423).

Election

Election to the bank was challenged on the ground that the election sub-rules were amended by the director board and did not have approval of the general body, even though the by-laws were amended in terms of the amendment to the Act and that there was no identification of separate ward for reserved category. Allowing the appeal, the Division Bench in Thiruvalla East Co-operative Bank Ltd., v. Sasidharan Pillai (2012 (1) KLT 350) held that once by-law is amended to make membership in the board of directors consistent with provisions of the Act and Rules, then procedure contained in election sub-rules is to be modified by the board of directors or by Administrator and need not have approval of general body, and when election sub-rules provide election to reserved category from the area of operation of bank as a whole, there need not be identification of separate ward for reserved category. 

Disputes

Any dispute arising in connection with employees or officers and servants of the different classes of the societies, including their promotion and inter se seniority, is to be decided by the Co-operative Arbitration Court. The words ‘including their promotion and inter se seniority’ are not meant to be exhaustive or restrictive, but only explanatory of what is already included and that dismissal from service is indisputably a dispute in connection with employment.

Section 70B of the Act stipulates that on the constitution of a Co-operative Arbitration Court every dispute pending before the Registrar or any person invested with the power to dispose of the dispute by the Government or the arbitrator appointed by the Registrar in respect of non-monetary disputes, relating to the local area of jurisdiction of the Arbitrator Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under S.69. It is evident from provisions contained in Ss.70A and 70B of the Act that the Co-operative Arbitration Court is not a forum subordinate to the Registrar is the dictum in Cheranallur Service Co-operative Bank Ltd., v. State of Kerala (2012 (4) KLT SN 2 (C. No.2)).

Supersession

Order of supersession of Managing Committee was under challenge in Urukunnu Service Co-operative Bank Ltd., v. State of Kerala (2012 (4) KLT 941). Allowing the Writ Petition, the Court held that the power to supersede a committee should be exercised with due caution and circumspection and only in cases where it is really called for. Mere default or failure to comply with the provisions of the Act if found to be true cannot be a ground for supersession, unless it is shown that there is persistent wilful negligence and willful disobedience. The report on inspection under S.66(2) is not intended for initiating steps for supersession but for passing order to direct the society to take such action the Registrar consider it necessary. The action of the Registrar contravene S.66 and R. 66(5) of the Rules. It is not that initiation of proceedings under S.32 is prohibited on the basis of a report on inspection obtained under S.66(2), but only in cases where on the basis of the report on inspection if the Registrar is satisfied that the continuance of the committee would be extremely prejudicial to the interest of the society which leads to any of the grounds mentioned in sub-s.(1)(a) to (d) of S.32. 

The Court went to hold that no Managing Committee could be proceeded against for misdeeds of a previous managing committee and that S.32 of the Act can be invoked only against a committee which has committed the irregularities or defects. Such a finding has to be objectively arrived and specifically entered. The consultation under S.32(2) is not necessary only in case the Registrar is of the opinion that it is not practicable to do so. When there was enough and sufficient time for doing the consultation and when the same was avoided it would appear that the dispensation of the consultation was done with ulterior motive. No valid ground is made out for invoking for dispensation of consultation.

Appeal

Petitioner had obtained an award in a monetary dispute on the file of the Joint Registrar. Respondent preferred an appeal under S.82. The petitioner filed a memorandum of cross objection in so far as Joint Registrar had negatived his claim. Co-operative Tribunal returned it with a direction to resubmit it with prescribed fee. Same was challenged in Sinny Joshy v. Kerala Kera Karshaka Sahakarana Federation Ltd. (2012 (1) KLT 415). Dismissing the Writ Petition, the Court held that all provisions relating to an appeal shall apply mutatis mutandis to cross objection also. However it is not necessary to assign a separate number to the memorandum of cross objection. It necessarily follows that R. 123 stipulating the rate of court fee payable in an appeal applies to cross objection also. Even the form and contents of the memorandum of appeal apply to memorandum of cross objection as well. Court fee is payable on the memorandum of cross objection like that on the memorandum of appeal. The memorandum of cross objection has an independent existence even if the appeal is withdrawn or dismissed for default. Only the necessity to file a separate memorandum of appeal and take out notice to the opposite party is obviated. The insistence to remit nominal fee under the Legal Benefits Fund Scheme in addition can be extended to the memorandum of cross objection also.

Employees

(i) Even though Rules do not stipulate that the experience should be in banking or financing, the Public Service Commission, while scrutinizing the application can certainly appreciate the experience with reference to the post for which the selection is made and if they find that the applicant’s experience is not suitable for the employment, it is up to them to reject the application. The very object of entrusting selection for high level appointment in banks to the P.S.C. is to have the selection made by a specialized body with expertise to make selection in a fair and transparent manner. Experience prescribed has to be understood with reference to the nature of employment and so much so, experience in sales is not the one that is suitable for appointment as General Manager of a bank. Experience required for Deputy General Manager and General Manager of co-operative banks should be banking and finance and not in sales or marketing.

Considering the magnitude of operation of the District Co-operative Banks and the State Co-operative Banks and their commitment and responsibility to the members and public at large, the Division Bench in District Co-operative Bank v. Dinesh (2012 (4) KLT SN 66 (C. No.52)) felt that the Government should immediately amend the Rules suitably, so that only well experienced and qualified persons are appointed in high positions in banks, like Deputy General Managers and General Managers. Rules should give sufficient flexibility to the P.S.C. to assess the general suitability with reference to educational qualification and experience so that undesirable persons do not get selected to high positions in the bank for direct recruitment with guidance to P.S.C.

S.80 authorizes the Government to prescribe qualification for employment of staff and officers of the co-operative societies in consultation with the State Co-operative Union. There should be no difficulty for the Government to get very qualified officers in the managerial cadre from any nationalized banks either on absorption basis or on deputation basis for appointment as Deputy General Manager or General Manager. There will be nothing wrong in even appointing retired bank officers for a tenure of three or five years on contract basis because well experienced people are required to run fairly being banks.

(ii) Where the special rules for recruitment for a post in any service prescribes qualification of experience it shall, unless otherwise specified, be one gained by person in temporary or regular appointment in capacities other than certain exempted categories after acquiring the basic qualification prescribed for the post, as held in Mohammed Shafi v. Kerala Public Service Commission (2012 (4) KLT SN 7 (C. No.7)).

(iii) Whether the Kerala State Co-operative Pension Board is empowered to adjudicate on the issue of appointment of the employee is the question which arose for consideration in Narayana Kuruppu v. Kerala State Co-operative Employees Pension Board (2012 (2) KLT 207). Allowing the petition it was held that if an employee was not eligible for pension, it should have been made clear even while receiving the contributions and not after considerable period of time. Apart from that the authority of the Registrar in making the appointments cannot be found to be wrong by the Pension Board and while denying the pension of the employees, the Board cannot adjudicate on the issue whether the appointment is bad for any reason.

(iv) Going by the definition of the term ‘average pay’ and the term ‘pay’ as amended with effect from 1.4.1998, the stand taken by the pension board that dearness allowance can be reckoned as part of pay from 1.4.1998 is perfectly in order, as held in Chacko v. Kerala State Co-operative Employees Pension Board (2012 (2) KLT SN 41 (C. No.41)). The average pay drawn by an employee during the last ten months of his qualifying service alone can be taken into account. The dearness allowance, if any, paid to the petitioner for the period prior to 1.4.1998 cannot be reckoned as part of ‘pay’ for the purpose of computing the pension payable to him.

(v) Issue involved in the appeals before the Division Bench in Kerala State Co-operative Employees Pension Board v. Nanu (2012 (4) KLT 163) pertains to interpretation of clause 22 of the Kerala Co-operative Societies Employees Self-Financing Pension Scheme 1994. It was held that the upper limit of Rs.20,000 with respect to average pay as well as upper limit of Rs.10,000 with respect to monthly pension is applicable to all co-operative employees irrespective of their length of qualifying service. So also the upper limit of 30 years with respect to qualifying service is also applicable in the case of all the employees. This is well clear from the amendment brought into clause 22 of the scheme. The appeals were allowed.

Miscellaneous 

(i) The competence of the State Government and the Registrar of Dairy Co-operatives to interfere with the decision taken by the Kerala Co-operative Milk Marketing Federation Limited, to increase the selling price of milk by Rs.5 per litre is the issue raised in Kerala Co-operative Milk Marketing Federation Ltd. v. State of Kerala (2012 (1) KLT 139). Allowing the Writ Petitions, the Court held that the by-laws of the Federation empower the board of directors to fix the procurement price and selling price of milk. There is no provision in the Act or Rules which stipulates that a co-operative society, whether it be a co-operative society of dairy farmers or of artisans, cannot fix the selling price of the goods produced and marketed by it, without the prior approval of the Government or the Registrar. The respondents have no case that the Co-operative Department has issued any direction or instruction regarding the procurement prices or the selling price of milk. The respondents have also no case that the decision taken by the board is ultra vires to the objects of the Federation or that the increase in the selling price of milk will disturb the peaceful and orderly working of the Federation or is contrary to the better interest of the Federation. On the other hand, the contents of the report which was submitted in pursuant to the study ordered by the Government themselves, make it evident that with the existing procurement price regime, the members of the Federation (dairy farmers) are not even able to realize the cost of production of milk. That apart, the Government had agreed, when it issued order that it will give full freedom to the Federation to fix the price for its products and the price paid for milk collected from its members. Such being the situation, it cannot be said that any circumstance warranting invocation of the power under R. 176 exists in the case of hand, to rescind the decision of the board. 

The Court also found that the Government or the Registrar cannot regulate and control the working of a society in exercise of the power conferred on them under the proviso to S.9 without taking into account the adverse economic impact that any regulatory measure adopted by the Government or the Registrar will have on the members of the society which in the instant case is the Federation and consequently on the members of the primary dairy co-operative societies, approximately 8 lakhs in number. Similarly, S.66A does not empower the Registrar to issue a direction to Federation to cancel the decision taken by it increase the selling price of milk. On the above premises, the writ petitions were allowed and the orders of the Government were quashed.

(ii) The questions before the Court in Diwakaran v. State of Kerala (2012 (1) KLT 633) were whether S.16(1)(b) & (c) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 apply to State/District Co-operative Bank and whether such banks are covered under the Act; and whether the State Government has power to grant exclusion under S.16(1)(b). Allowing the writ petitions filed by the employees of the bank, it was held that there is no control of the State Government over the State Co-operative Bank and District Co-operative Banks registered under the Kerala Co-operative Societies Act. S.16(1)(c) is to the effect that the Act does not apply to any establishment ‘set up’ under any Central, Provincial or State Act. The legislature has cautiously used the word ‘set up’ in contra distinction to the word ‘registered’ under S.16(1)(a) of the Act with a purpose. It needs no elaboration to find out that the State Co-operative Bank and the District Co-operative Banks are not set up under the State Act even though registered under the Kerala Co-operative Societies Act. The irresistible conclusion is that Ss.16(1)(b) and (c) do not apply to the State Co-operative Bank or the District Co-operative Banks and they are covered by the Act. True it is that S.16(2) empowers the Central Government by notification in the official gazette to exclude a class of establishments from the operation of the Act. The power to so exclude is available only to the Central Government and that too by notification in the official gazette either prospectively or retrospectively. The Regional Provident Fund Commissioner has absolutely no authority to grant exclusion.

Right  to  Information 

Writ appeal was filed before the Full Bench of the Kerala High Court in the Mulloor Rural Co-operative Society Ltd. v. State of Kerala & Ors. (2012 (2) KLT 865 (F.B.) = AIR 2012 Ker. 124), against judgment of the learned Single Judge holding that a co-operative society registered under the Kerala Co-operative Societies Act answers the definition of ‘public authority’ as defined under S.2(h) of the Right to Information Act, 2005 and hence the Registrar of Co-operative Societies was within his powers in issuing the order impugned in the writ petition directing all societies to constitute authorities under the RTI Act for furnishing information sought about societies. A reference to the Full Bench was made by the Division Bench doubting the correctness of the judgment rendered in Thalapalam Service Co-operative Bank Ltd., v. Union of India (2009 (3) KLT 1001) wherein that Bench took the view that a society would become a ‘public authority’ within the meaning of S.2(h) of the RTI Act only if such society is ‘substantially financed by the Government’. 

Co-operative societies are not institutions established under the KCS Act and, therefore, are not statutory authorities, though all co-operative societies are required to be registered under the KCS Act. Under S.27 of the KCS Act, the final authority of a society vests in the general body of its members. Every society is managed by the managing committee constituted in terms of the by-laws of the society as provided under S.28. Right from registration onwards every society is subject to strict control by the statutory authorities like the Registrar, Joint Registrar and also the Government. Further, the society’s accounts are to be compulsorily audited by statutory audit team constituted under the KCS Act. Ss.65, 66 and 68 authorize inquiry, inspection and even levy of surcharge on erring managing committee members and employees of any society, if they are involved in misappropriation or mismanagement of the society. S. 32 authorizes the Registrar to supersede the managing committee of a society for mismanagement and to appoint an administrator to manage the affairs of the society. In short, there is all-pervading control over society by the statutory authorities including the Government.

The functioning of the society is absolutely democratic in as much as the ultimate power is vested in the general body and the members elect the managing committee to manage the affairs of the society. The society is constituted with members funds, mainly as subscription towards share capital and even deposits from public are accepted by the societies engaged in banking business. In other words, absolute transparency about the affairs of the societies is the fundamental requirement for societies to run in compliance with the statutory provisions.

It is worthwhile to note the Constitution (Ninety-seventh Amendment) Act, 2011, by which right to form a co-operative society is declared as a fundamental right under Art.19(1)(c) of the Constitution and under Directive Principles Art.43B is introduced providing that the State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. The importance of the co-operative movement in the development of the nation is not only recognized but is made a basic feature of the Constitution. The objective of the RTI Act as is evident from its preamble itself is to promote transparency and accountability in the working of every public authorities.

The Court emphasized that no democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. Every co-operative society registered under the KCS Act runs following the fundamental principle of democracy that is, through decision by majority that too, through elections. So much so it is fundamental that every member of the society, every depositor and every one interested in the affairs of the society are entitled to get all information relating to the society which is possible only if R.T.I. Act is implemented against co-operative societies. However, it may be noticed that sufficient safeguard is made in S.8 of the R.T.I. Act which prohibits furnishing of certain items of information on which statutory immunity is provided thereunder for obvious reasons.

The Full Bench takes exception to the attitude of the managing committee of a society to refuse to furnish information relating to the society itself should be a matter of serious concern by the Joint Registrar because people tend to cover up only wrong things and not things which are properly done. It is noticed that the completion of statutory audit of societies is delayed by four to five years and most of the managing committees escape from being caught for mismanagement only because of delay in auditing, detection of irregularities and delay in initiation of surcharge proceedings thereafter. The Court is of the view that at least vigilant members and the public by obtaining information through R.T.I. Act will be able to detect and prevent mismanagement in time. The question posed by the Division Bench was answered by holding that co-operative societies registered under the KCS Act are ‘public authorities’ within the meaning of S.2(h) of the R.T.I. Act. The writ appeal stood dismissed by confirming judgment of the learned single Judge declaring the applicability of the R.T.I. Act to co- operative societies and by upholding the circular issued by the Registrar of Co-operative Societies.

‘Lawyers, I Suppose, Were Children Once’

(By P. Deepak, Advocate High Court of Kerala)

Charles Lamb is credited with the above quote. It was used as an epigraph with telling effect by Harper Lee in her seminal masterpiece 'To Kill a Mocking Bird’. Devouring the book in my late teens the import of that supposition escaped me in very much the same way I encountered Mr. Bumble in Oliver Twist mumbling ‘If the law supposes that, the law is an ass-an idiot when it was put to that much harassed husband that the law supposes a wife to act under her husband’s direction.

With the hindsight afforded by more than fifteen years in the learned profession I can vouch with supreme candour that Charles Lamb missed the mark by a mile. Substitute ‘once’ with ‘forever’ and employ the present tense and you have hit the jackpot-' Lawyers, I suppose, are children forever’. In fact, you could even dispense with the supposition and state affirmatively-’Lawyers are children forever’. Let me put it this way. We lawyers are perennial schoolboys. Our whole life is one endless sojourn from vacation to vacation interspersed with a few inconvenient working days. Consider this little scene that is being played out and will be played out in courts unborn and accents yet unknown-January 2013 is curtains already. The first month of the year whizzed away into oblivion even before the heavy eyes had so much as begun to focus after saying an effervescent goodbye to an ordinary 2012. Pint-sized February is following suit, disappearing as swiftly as that cheap fag wedged between the twitching fingers of the lonely traveller sighting his night train roll up alongside the crowded platform. Three neat drags and February 2013 too would be consigned to history.

Back in the corridors of our High Court it wouldn’t be long before unprepared counsel and unwieldy dockets are shooed away with a cursory judicial diktat-'post after vacation’. From sporadic instances in the early weeks of March it would build up into a crescendo during the fortnight immediately preceding the court recess. The briefest of stutters or the faintest hint of a stammer and the hapless counsel would be greeted with the inevitable writing on the wall-’post after vacation’. Plaintive cries would occasionally elicit the following patronizing rider-Petitioner is at liberty to move the vacation judge for urgent orders. Call the next case !’

More often than not the cue is supplied by the counsel himself. Apprehending a sudden death to his ill-conceived brief at the hands of the conscientious judge dispensing wholesome justice oblivious of the impending vacation the diffident counsel hurriedly whispers under his breath, even before the court officer has had time to hand over the file, ‘Would your lordship have this matter after vacation?’ This is followed by a marked silence and collective intake and holding of breath as his colleagues present in the court hall await the judicial response to the above ‘submission’.

Often it chances that his lordship, otherwise magnanimous in granting adjournments, would suddenly be reminded of the precepts underlying Order XVII. He would then decry mounting arrears and ruthlessly conduct the last rites of the entrapped case himself much to the dismay of the mortified counsel. Witnessing this unhappy carnage the others, waiting for their cases to be called, make a mental note to expunge any mention of vacation in their submissions.

At other times his lordship, being reminded of similar such timorous submissions made by him during his time spent at the bar, would smile knowingly at the hesitant counsel. His lordship would then stare endlessly in all seriousness at the High Court calendar placed by his side and decree ‘post after vacation’ as requested by the grateful counsel. The court officer would then do a back-somersault to catch the case bundle flung from the rarefied heights of the judicial chair. Taking pride in the fact that his shoulder and wrist still packed a punch to fling cumbersome case bundles, reminiscent of his long throws to the keeper from the boundary ropes on the college cricket ground, his lordship would then wait patiently for the court officer to catch his breath and call the next case.

On such occasions, even before the court officer has gathered his wits and laid his hand on the next case bundle, the petitioner’s counsel, drawing courage from this unexpected judicial indulgence, would sheepishly attempt to ride his luck further. Running his fingers through the sweat sodden collar he would cough hoarsely and submit in an undertone ‘Would your lordship extend the interim order till such time?’ He would then beckon the court officer to let go his prized catch and return the earlier case bundle to his lordship.

Seeing his perfect long throw boomeranging on him in this manner his lordship would then look enquiringly at the Government Pleader. The latter, engrossed in taking a sneak at the ‘Calendar Application’ in his new android smart-phone and counting the number of days left in the term, hastily rises to meet the judicial gaze. Realizing that the system of jurisprudence prevalent in the country is still adversarial and that it would be amiss not to object, no matter where his preferences lay, the Government Pleader reminds his lordship that the pleadings are, in fact, complete and that he is more than ‘ready’ to argue the case, not believing his own words even as it is spoken.

Confronted with this awkward topspin lob from the Government Pleader his lordship would then slide his fingers along the length of the file and take a sidelong glance at the clock mounted on the wall. Obtaining no solace from that stubborn timepiece which still counted sixty seconds to the minute his lordship would next scan the proceedings sheet with unconcealed irritability. The petitioner’s counsel, in the meanwhile, vaguely sensing that things are not going the way he would have liked it to go, would begin to nervously tug at the strings of his case bundle preparatory to gathering his papers and stating the facts. Not surprisingly, the Gordian knot refuses to unravel and mocks his clumsy and sweaty fingers. The sheaf of papers slips from beneath the knot and drops to the floor. His neighbour, awaiting his turn at the sacrificial altar, immediately dives under the desk to retrieve the fallen papers for the unfortunate man. Mistake not, it is no brotherly love or any sense of altruism that prompts the neighbouring counsel to act with such alacrity in recovering his colleague’s papers. Rather, prolonging the latter’s misery might possibly stretch the time to half past four and he could then get his interim order extended in the free-for-all that marks the judicial proceedings beyond the said hour.

Thanking his neighbour profusely for retrieving his papers the petitioner’s counsel would then gather the papers with a shaky hand and hastily iron out the creases of the original petition which had not been opened since that fortunate day when the matter had come up for admission before a non-regular court and the stand-in judge, who was in a most generous mood for not having to rummage the vintage original petitions otherwise assigned to him, had granted him an unconditional interim order.

By this time the initial optimism of the Government Pleader had clearly waned. Ruing the moment that prompted him to say that he was ‘ready’ with the matter the Government Pleader attempts a frantic reading of the counter-affidavit. Not having prepared the affidavit himself he would then ogle feverishly at its contents trying to discern the purported stand of the government in the matter. Deriving no assistance from the counter-affidavit he would plod through the Writ Petition and scan the order impugned. It is then that the painful realisation hits him that, but for the solemn oath of the officer concerned incorporated at the beginning and the end, the counter-affidavit is merely a verbatim reproduction of the impugned order and by extension as cryptic as the order impugned. Knowing his lordship’s penchant for proper pleadings and the mot juste the Government Pleader braves himself for the worst.

All this while, unknown to the hapless counsels and unseen by them, a faint smile could be seen spreading across his lordship’s face. The case bundle could be seen subjected to a most careful scrutiny, particularly, at the flipside. The court officer is summoned from his reverie and directed to sift the papers in the case bundle thoroughly. The court officer does his bidding and shakes a forlorn head to the judicial query. The stenographer is then reined in to assist. She too painstakingly separates the individual sheets and shakes her head.

There is no mistaking it. The counter-affidavit is NOT in the file. His lordship turns on the Government Pleader like a wounded tiger. ‘Where is the counter-affidavit? When did you file it?’ his lordship thunders. The Government Pleader can be seen shaking in his boots. ‘Maybe it was returned defective’, he stammers. ‘Maybe!’ his lordship bellows again. He turns on the government pleader with a vengeance. ‘Are you suggesting that I should personally verify whether it has been filed or whether it has been returned defective?’ His lordship begins to expand on the laxity of lawyers in general, and government pleaders in particular. Civil Rules of Practice and Rules of the High Court are expounded for the benefit of all present.

The harangue continuous unabated until the distant peal of the court-bell brings the steward hurrying to get behind the judicial chair and wait for its occupant to rise. His lordship pauses abruptly and rises like a phoenix from his chair. Flexing his wrists for the second time that day he flings the case bundle down and mutters-'Post after vacation....interim order extended by two months......’ (The petitioner’s counsel cannot but suppress a smile seeing the much harried face of the Government Pleader and he prepares to thrust the papers back in the bundle)'......on condition that the petitioner deposits 50 % of the disputed demand....’ The smile dies on the counsel’s lips.‘.......all other cases where interim order is to be extended the same shall be extended for a period of two months. Post all cases after vacation’. His lordship rises with a flourish with the satisfaction of a good day’s job done.

Need for protection of Non-original Databases  in India

Vizzy George, Advocate

The law of intellectual property and of copyright in particular, has struggled to strike a balance between the competing interests of protecting authors’ rights to promote the creation of new works on the one hand and encouraging the public dissemination and use of works of authorship on the other. In this context, compilations of data have been controversial in the sense that while such works do not have creativity usually required to satisfy the originality requirement of copyright, a great number of these works have proven to be extremely useful to society. The typical example would be that of a telephone directory containing a simple alphabetical listing of subscribers in a particular geographic area which required virtually no creativity on the part of the author but is of greatest utility to the common public. While information is free for anybody to collect, creating an accurate and reliable database can be very costly and time-consuming. To do so, the database producer has to invest a substantial amount of time, personnel and money to develop, compile, distribute and maintain the collected information. It also has to dedicate considerable resources to gather and verify data, to present them in a user-friendly fashion, and to keep them current and useful to the users. However, the results of such labour can be copied and pirated with relative ease. Thus, it is only equitable that protection is indeed needed to create incentives for database producers to invest in their production.

However, despite their importance, databases receive very limited protection under current intellectual property protective regimes. Traditionally, courts have been reluctant to grant protection to factual compilations on the grounds that facts fall inherently within the public domain. As a consequence, protection of factual compilations is routinely accorded only to the extent to which the selection and arrangement of the compilation constitutes an original creation. The principles of the law of confidentiality also used to come to the rescue of database owners, provided the database is maintained in circumstances creating an ‘obligation of confidence’.

Database has been defined in various agreements¹. A database is basically a collection of data or other material that is arranged in such a way so that the items are individually accessible and may be protected by  copyright and/or database right. For copyright protection to apply, the database must have originality in the selection or arrangement of the contents and for database right to apply, the database must be the result of substantial investment. Most of the databases except ones which are mechanically arranged satisfy both these requirements so that both copyright and database right apply.

Traditionally databases were protected through the mechanism of copyright law. Even though only the selection and arrangement of data was eligible to satisfy the originality requirement of copyright law, a loose interpretation of the originality concept by the courts enabled the database producers to avail some form of protection for their works. Through the decision in University of London Press v. University of Tutorial Press ² the English Court established that a work created by investing original labour was eligible for copyright protection no matter whether a substantial amount of creativity was involved. The Court did not insist on the prevalence of creative or intellectual input to determine originality in the work. In the United States the courts developed the ‘sweat of the brow’ doctrine to protect works which had low originality content.³ Database makers who invest a substantial amount of resources (i.e., “sweat”) creating or updating a database will receive copyright protection for the contents, even if the database exhibits no originality. Nordic countries and the Netherlands who were the notable exceptions provided alternative arrangements to protect catalogue makers and those who created products with little originality so that they were able to prevent unauthorized reproduction of the contents of catalogues. However the U.S. Supreme Court in Feist Publications v. Rural Telephone Service ⁴  overruled the “sweat of the brow” doctrine. The contents of databases which were merely compilations of facts or information were no longer within the purview of protection of copyright law because they did not reach the minimum level of creativity necessary to meet the originality requirement of copyright law.

There is no international norm on protection of non-original databases. Article 10(2) of the TRIPS Agreement dealing with copyright protection for databases came into force on January 1, 1995 ⁵ . Similarly, the WIPO Copyright Treaty (WCT) concluded in December 1996, with the aim of updating international copyright norms, came into force in March 2002.⁶  However both these international arrangements envisaged protection only for the selection and arrangement of data and not for the data itself. In 1988, the European Union began to consider a measure to standardize the level of legal protection available for databases so as to encourage investment in the information industry by creating certainty that the database would be protected from slavish copying by competitors. The result was the Directive on the Legal Protection of Databases ⁷. Under the EC Database Directive a database can be protected in two ways. First, the Directive provides that databases shall be protected under copyright law where the selection or arrangement of the contents constitutes the author’s own intellectual creation. This right provides protection to a database (not the underlying data) and is limited to databases containing a sufficient degree of creativity in the selection or arrangement of the data. The second right, however, provides for a sui generis right that prohibits the extraction or reutilization of any database in which there has been a substantial investment in obtaining, verification, or presentation of the data contents. Here there is no requirement for creativity or originality. Thus this second right gives databases in Europe the type of “sweat of the brow” protection that was explicitly rejected by the U.S. Supreme Court in Feist, lasting for fifteen years from the date of the database’s creation. A database which will benefit from the sui generis right provided by the EC Database Directive may include any type of information, such as text, sound, images, numbers, facts, or data, for which reason it is also referred to as the “Multimedia Directive.”⁸ To be protected, the contents of the database must be “individually accessible.”

Database right is in many ways very similar to copyright. For example, registration is not necessary to acquire database right - it is an automatic right like copyright and commences as soon as the material meant to be protected is reduced on to a recorded form. Database right can apply to both paper and electronic databases. Four main differences between database right and copyright exist under the EU directive. The first difference is that the term of protection for database right is much shorter when compared to copyright. Database right lasts only for 15 years from the making available of the database to the public. However a revised edition is entitled for a new term of protection. The second difference is that the activities that a right holder can control, and if undertaken without the right holder’s permission, is a bit different. Database right concerns control over the extraction and re-utilization of the contents of the database, while copyright law is concerned with the substantial reproduction and distribution of a work. The third difference is that the exceptions to the right, are quite narrower in the case of database protection, when compared to copyright law. In particular, fair dealing for the purposes of research or private study does not extend to research for a commercial purpose. The fourth difference is that the remedies under copyright law include both civil and criminal while in the case of database right it is confined to civil nature. It is pertinent to note that since many databases are a collection of copyright works, people compiling databases need to ensure that they have permission from the copyright owners for use of their material and people using databases need to be aware of the rights of copyright owners as well as database right owners.

The sui generis right permits EU database makers to prevent the “extraction” and “re-utilization” of all or a “substantial part” of the database, measured qualitatively or quantitatively. Extraction is aimed more at a user’s private use; re-utilization is directed more toward distribution, including by competing commercial organizations. Since extraction includes the permanent or temporary transfer to another medium, and on-screen display of a database often necessitates such a transfer, it is covered by the Directive. The Directive does not define what constitutes a “substantial part” of a database. However it does prevent users from circumventing the “substantially” requirement by making repeated and systematic extractions of insubstantial parts. The EC Directive envisages a very wide protection - for example simply searching a database electronically may involve the temporary copying of the database to another medium and thus may constitute a restricted act. Article 9 also spells down the exceptions to sui generis right.⁹ One of the most controversial aspects of the Directive is that the sui generis right granted under the Database Directive applies only to databases created by companies based in countries that are members of the European Union. The EC can extend the sui generis right to databases made in third countries, thereby creating a lever to force all other major database producing countries to pass similar legislation. The Directive also explicitly excludes subcontractors from the definition of “database maker.” This not only makes EC companies which subcontract for data entry keying to companies located in places within the definition of ‘database maker’ for purposes of the Directive, but also makes it more difficult for companies located outside the EC to claim EC residence by subcontracting to companies located in the EC.

The Directive also does not provide much guidance on what constitutes substantial investment, other than to indicate that compiling a few recordings on a music CD is not a substantial enough investment. Nevertheless, since the Directive’s purpose is to encourage the expansion of the European database industry, it is reasonable to assume that any investment above a token amount will suffice. The Directive also instructs Member States to harmonize the copyright protection available to databases in the EC. To be eligible for copyright protection, the selection or arrangement of the contents must be the result of the author’s own intellectual creation. This will mean that a level of creativity in the selection and arrangement will be needed for a database to obtain copyright protection.

In the UK the Copyright, Designs and Patents Act 1988 (CDPA) was amended by The Copyright and Rights in Databases Regulations 1997 (SI 1997/3032). In implementing the EC Directive, a definition of the term ‘database’ has been inserted into the CDPA¹⁰. Prior to 1 January 1998 it was possible to claim copyright protection for databases provided it could be established that sufficient skill, labour or experience have been applied to the production of the collection of data. Criminal and civil liability could then arise. Under the EC Database Directive, ‘database’ includes collections other than purely literary works and raises the question whether ‘database’ is intended to include an anthology of poems, a collection of circuit diagrams or a collection of digital representations of 3D items. The UK implementation of the Directive, however, has restricted ‘databases’ to collections which are literary works only. If the database right is infringed by the commission of a restricted act then the owner of the right may claim relief by damages, and/or an injunction preventing further restricted acts. Database rights can only be enforced through civil courts. This contrasts with copyright which can be enforced through criminal and civil sanctions. In the first case in the UK to be tried under the Copyright and Rights in Databases Regulations 1997 it was held that using database without the permission of the database maker amounted to infringement of the database right.¹¹ Thus database producers in UK are equipped with an effective mechanism to protect the unauthorized extraction and utilization of content, which are individually accessible.

In India there is no specific legislative mechanism to protect databases excluding the traditional copyright route. Tables and compilations including computer databases are included within the definition of a ‘literary work’ as stated in Section 2(o) of Indian Copyright Act, 1957. Indian courts too have recognised the protection of databases under the framework of copyright law and have adopted a loose interpretation of the originality concept, so as to protect even non-original databases. They have relied upon various English decisions to protect human effort and labour even in works with minimum amount of creativity. In Macmillan and another v. Suresh Chunder Deb¹² as early as the nineteenth century the Calcutta High Court relying on various English judgments concluded that copyright subsisted in a collection of poems selected from various English authors, even though the creativity involved in the work was found to be marginal. Laying down the law the court observed thus:

“In the case of works not original in the proper sense of the term, but composed of or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from any one else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But, as the law is concisely stated by Hall, V.C., in Hogg v. Scott, “the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, nearly to take away the result of another mans labour, or, in other words, his property”. I think it unnecessary to refer in detail to the cases; it is enough to say that this principle has been applied to maps, to road-books, to guide-books, to street directories, to dictionaries, to compilation of scientific and other subjects.¹³

In Macmillan and Company Limited v. K. and J. Cooper¹⁴ the Privy Council had given emphasis to human labour, skill and capital to determine originality in a copyright work. The Privy Council while determining a question on infringement stated thus:

“It is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material.¹⁵”

Similarly the sweat of the brow principle enunciated by U.S. Courts has been recognised and relied upon by the Delhi High Court in Burlington Home Shopping Co. v. Rajnish Chibber.¹⁶ In this case the plaintiff was a mail order service company. In course of its business it developed a database of its customers with considerable effort. The defendant, a onetime employee of the plaintiff and owner of a competing firm had managed to use this data for his own benefit. The Court held that the plaintiffs were entitled to copyright in the addresses collected and compiled by it and the act of the defendant, which amounted to the copying of it as an infringement of the copyright.

Thus the Indian courts have set a very low standard of originality requirement and so databases with the least amount of creativity can get copyright protection in the country. On the strength of these decisions the interests of the database owners in the country seems to be protected to a certain extent, though with considerable limitations. But this is in no way comparable to the standards of protection afforded by the European Union or the United Kingdom. While the sui generis right offered by the EC and UK enables the database owners to prevent the unauthorised extraction and re-utilization of their databases, Indian copyright law can be invoked only when a substantial amount of the work is expressly proved to be copied. Copyright law will not afford protection to the extraction and utilization of data which can be individually accessed and utilized. From a commercial perspective it is this right that matters more to a database owner when compared to that of substantial copying afforded by copyright law. Thus the Indian database industry is certainly in a disadvantageous position when compared to their European Union compatriots, as far as protection of databases are concerned.

In the emerging digital era, it is only apt for countries like India to consider adequate standards for protecting databases. Copyright protection has serious limitations in the digital context as it is toothless to protect computer aided extraction and utilization of databases. It is the right to prevent unauthorised extraction and utilization that solely matters in a digital context rather than a substantial copy of the work. While people in favour of a sui generis right argue that these rights have the potential to bring in substantial investment into the database industry people against are more concerned with the social impact of such a right, that is, the potential of these rights to block access to information in the public domain. Other models like the one attempted by the United States based on the principles of Misappropriation¹⁷ can also be considered. However any such legislative attempt to enact a proper medium to protect databases must strive to strike an adequate balance between the competing interests involved.

Foot Note:

1. Directive 96/9/Ec Of The European Parliament And Of The Council of 11 March 1996 on the legal protection of databases states in Article 1 (2): For the purposes of this Directive, ‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. (3) Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means. In UK, The Copyright and Rights in Databases Regulations 1997 states the Meaning of “database” as “In this Part “database” means a collection of independent works, data or other materials which - (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means. (2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.” U.S. Bill- H. R. 3261 Database and Collections of Information Misappropriation Act, 2003 defines in Section (5) Subject to subparagraph (B), the term ‘database’ means a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them. (B) Exclusions - The term database does not include any of the following: (i) A work of authorship, other than a compilation or a collective work. (ii) A collection of information that principally performs the function of addressing, routing, forwarding, transmitting, or storing digital online communications or receiving access to connections for digital communications, except that the fact that a collection of information includes or consists of online location designations shall not by itself be the basis for applying this clause. (iii) A collection of information gathered, organized, or maintained to perform the function of providing multi-channel audio or video programming. (iv) A collection of information gathered, organized, or maintained to register domain name registrant contact data maintained by a domain name registration authority, unless such registration authority takes appropriate steps to ensure the integrity and accuracy of such information and provides real-time, unrestricted, and fully searchable public access to the information contained in such collection of information. (C) Discrete Sections - The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act.

2. (1916) 2 Ch. D. 601. To the question as to whether a question paper satisfies the originality requirement envisaged by copyright law the English Court observed that the word ‘original’ does not mean that it should be the expression of original or inventive thought or creativity. The Copyright Act does not deal with originality in ideas but only with the expression of ideas and in case of a literary work the expression of thought in print or writing is sufficient. The Court made it clear that the work must not be copied from another work. In other words, it must originate form the author.

3. See Kingstone Publishers v. Jewell Publishers , 281 F 83 (CA2 1922).

4.  18 U.S.P.Q. 2d 1275 (1991). It was held that a company could copy the contents of a competitor’s telephone directory, as the telephone listings organized alphabetically did not have any amount of creativity to meet the originality requirement of copyright law.

5.  TRIPS, Article 10(2) states: “Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.”

6. The WCT contains in its Article 5 a provision on copyright protection of databases, which, under the title “Compilations of Data (Databases)” provides as follows: “Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.” The Diplomatic Conference also adopted, by consensus, the following agreed statement: “The scope of protection for compilations of data (databases) under Article 5 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement.” Article 2 of the WCT, to which the agreed statement refers, states, under the heading “Scope of Copyright Protection,” as follows: “Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”

7.  Adopted by the EU Parliament and Council on March 11, 1996 and implemented by the member States as national law on January 1, 1998. Hereinafter referred to as EC Database Directive.

8.  Electronic and print databases are covered. Electronic media specifically include CD-ROMs, CD-I, and online services. The extension to print databases is a significant expansion from the earlier drafts of the Directive, which only covered electronic databases.

9. In the cases of extraction for private purposes of the contents of a non electronic database, extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved and extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.

10.  Supra n. I

11. British Horseracing Board Ltd., v. William - Hill Organisation Ltd., (2001) R.P.C.31. The British Horseracing Board (BHB), the governing body for the British racing industry and which has been maintaining a collection of racing information on computer at a substantial cost, successfully sued the bookies William Hill for infringement of the database right when William Hill published information on Hill’s web site which was listed on the BHB databases without BHB’s consent. The court in this case ruled that in taking information that had originally come from a BHB database and loading it onto its own computers for use on its web site, without the necessary permission, William Hill was infringing BHB’s database right.

12 . ILR 17 Cal. 951

13.  Ibid.

14 .    AIR 1924 Privy Council 75

15 .    Id. at p.

16 .    1995 PTC 7278

17.  See U.S. Bills - H.R. 3261 Database and Collections of Information Misappropriation Act, 2003 and H.R. 3872 Consumer Access to Information Act, 2004.

Mr. Speaker Sir, You Are Right (An Answer to 2006 (2) KLT 86 -- Journal)

K. Ramakumar, Advocate, High court

This is in humble response to the views expressed by a gold medalist in law, a brilliant lawyer, an able Advocate General, and an eminent Judge in the Article that appeared in 2006 (2) KLT Journal Page 86 captioned “Lok Sabha Speaker and the Supreme Court.

The seminal issue involved is summoning the Speaker. For what? To answer the question whether the Ethics Committee constituted by him acted right or wrong in disciplining deviant members who brought ridicule to the House and injured its image. The Speaker has to tell the Court that an In-House Committee committed no invalidity or irregularity in its decision making. The crucial question, then is, can the Courts demand the Speaker to defend such a decision? Plainly not. The answer is in Article 122 itself referred to by the former Judge but not relied on by him.
The issue is not one of disqualification as contended by the learned Retired Judge. Disqualification is a post-election event. The President alone decides such disqualification and not the House. See Article 102. The real question is one of morality, ethics and credibility and who else, than the House that can decide its members have eroded its image and polluted its purity. Are not similar expressions used ad naseum in contempt proceedings? Is it suggested that while a Court can zealously safeguard its status and stature the House cannot?

Can Courts substitute their views to that of the Ethics Committee? Can the Court tell the Speaker “Your Committee’s decisions are wrong, invalid or irregular?" Simply impossible. Significantly Article 122 specifically forbids precisely that.

Read it along with Article 121. They together evolve a Code of Conduct of mutual respect to each other. One cannot entrench upon areas ear-marked, not for it. For instance can the House adopt a motion that a particular Judge was biased or motivated in rendering a judgment.  Obviously not.

How then can one functionary under the Constitution ignore its mandate and commit trespass upon areas not reserved for it? Can the Supreme Court speak to the Speaker “You are wrong, take back all the expelled members”. Fortunately our Constitution has made it impermissible.

Speaker Somnath Chatterji was therefore perfectly right when he took the stand that the issue is beyond the powers of the Court. If power is conceded to the Court Article 105 will be rendered nugatory. See the well known judgment in the JMM case, (1998) 4 SCC 626 and the Search Light case. Free expression of opinion in the House will be hampered by fear of the Courts. Courts which are prone to use contempt powers at the drop of a hat. Courts decreeing to themselves the fluttering of National Flags on the cars of judges (See the Division Bench judgment of the Allahabad High Court) and courts, which determine the age of retirement of judicial officers in derogation of Article 309 of the Constitution. To crown it all the creation of a collegium not envisaged anywhere in our Constitution. Courts refused to interfere in Royappa in spite of grave allegations of malafides while they did it in Sankalchand and S.P. Gupta even in the absence of any allegations of mala fides at all. What is good for goose should have been good for gander too. Judicial Activism - Yes. Judicial aggression and encroachment - No.

High moral grounds have also ceased to be the courts’ cup of tea. Holy men in robes worshipped once by the people of this country had a halo around them, hazy now, thanks to Veerasamy, Ramaswamy, Sumith Mukerjee, Arun Madan and their ilk. See what the Apex Court said in Justice Banerjee’s case from Kolkotta (2005) 1 SCC 201.

“Again,  like  any  other  organ  of  the  State,  the judiciary is also manned by human beings - but the function of the judiciary is distinctly different from other organs of the State - in the sense its function  is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields, a judge is being judged with more strictness than others. Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice - delivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside”.

The Court added:

“With due respect to the learned Judge, Justice B.P. Banerjee, he has misused his divine judicial duty as liveries to accomplish his personal ends. He has betrayed the trust reposed in him by the people. To say the least, this is bad”.

Plotting for plots in Salt Lake is not solitary. It had happened in Faridabad, Bangalore and Bombay.

Can the Courts therefore continue to adopt a posture of “holier than thou”? While the judiciary appears to remain disabled or disinclined in stemming the rot from within, peoples’ representatives rose to the occasion, acted differently and had done well in reminding their erring colleagues - “No more cash for querries”.

Mr. Speaker, sir, you are therefore right. But please tell the courts too that you are.