Impeachment of Justice Sen Unconstitutional -- 
Sets A Bad Precedent with Serious Consequences

(By Sivan Madathil, Advocate, High Court of Kerala)

After Independence of India, former Judge of Calcutta High Court, Sri. Soumitra Sen has been the second person facing impeachment proceedings by Parliament for ‘proved misbehavior’. During 1991, former Judge of Supreme Court, Sri.V. Ramaswamy, though faced impeachment proceedings before Lok Sabha, since the members of Congress party refrained from voting, the motion was not passed. However on the allegations of corruption he was forced to resign. Similarly, during 1995, the former Chief Justice of Bombay High Court, Sri. A.M.Bhattacharjee was forced to resign on allegations of corruption before facing impeachment. The impeachment proceeding adopted by the Rajya Sabha in Sri.Sen’s case has evoked legal and constitutional issues causing not only serious repercussions in the Judiciary but also in the faith of public in the Indian Legal system especially the higher end of Judiciary.

From the close reading of the entire issue of initiating action against Sri.Sen, three major issues arise which are of much significance. The first one is the manner in which the in-house enquiry was ordered and sending of letter to the Prime Minister of India for initiating impeachment proceedings against Sri.Sen by the former Chief Justice of India, Sri. Justice K.G.Balakrishnan. Further, the motion adopted and the impeachment proceedings by the Upper House needs to be scrutinized in detail on their legal and constitutional bearing. If there is any allegation against a sitting judge of both High Court and Supreme Court, the Chief Justice of India can and needs to order in-house enquiry by constituting appropriate committee. But the issue of a letter to the Prime Minister by the Chief Justice of India is unheard of and has no legal bearing. Further, the reasons that really prompted the Sri. Justice K.G.Balakrishnan to initiate the action against Sri.Sen for his alleged misbehavior needs introspection especially when there were serious allegations against other members of the higher judiciary far greater than that against Sri.Sen in the light of the discussions in the media and among public. This gains significance in the light of the fact that no allegations of misbehavior was leveled against Sri. Sen while he was discharging duties as a Judge of the Calcutta High Court. The allegation of misbehavior that prevailed was during his career as a lawyer prior to his elevation as a Judge. If that be so, the action to be initiated was under the Advocates Act by the Bar Council or under the Criminal Justice System.

Further, during the selection of Judges’ panel by the Calcutta High Court Collegium and thereafter affirming this selection by the collegium of the Supreme Court and the final authority confirming the selection and appointing Sri. Sen as a Judge by the then Hon’ble  President of India,  the moral and constitutional responsibility lie  on  their shoulders in elevating Sri.Sen as a judge. Such selection was to be done considering every aspects and antecedents of Sri.Sen as a candidate and failing to do so is a failure in the selection process. The Collegium having recommended his appointment after due enquiry and the President of India having consented his appointment, an estoppel operates against raising any allegation of misbehavior prior to the appointment as a judge.

The next serious issue that requires anxious consideration is the manner in which the motion was adopted and the impeachment proceedings were initiated by the Rajya Sabha. From the reading of the related constitutional provisions viz., Art 124(5) which specifically stipulates that “Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a judge under Clause (4)”. According to this provision, two procedures are to be regulated by law by the Parliament. It is evident that the Judges (Inquiry) Act, 1968 is the Act regulated by the parliament for the above two procedures. Though the act regulated the procedure for investigation and proof of misbehavior or incapacity of a judge, the act is silent on the procedure for presentation of an address by both Houses. It may be noted that the relevant Sevtion  6 (2) & (3) of the Act just states that ‘motion adopted by each house of parliament in accordance with the provisions of Cl. (4) of Art.124 -- And an address praying for the removal of the judge shall be presented in the prescribed manner... ‘. But regarding the manner in which the motion is to be adopted and address to be presented on the report of ‘proved misbehavior’, the Act remains silent. Further Art.118 of the Constitution contemplates the rules of procedure which says “Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business."

On going through the parliamentary procedure/Rules for regulating its procedure and conduct of its business, there is no provision specifically provided for removal/impeachment of a judge in case of proved misbehavior or incapacity. The removal of a judge does not come under the category ‘Conduct of its business’. The parliament has to, by law, make specific provision for the procedure for passing of the motion for removal or impeachment, which is a Constitutional obligation as demanded by Art. 124(5) of the Constitution.

When the report of the committee was placed before the Rajya Sabha on 17.8.2011, the house in fact adopted the procedure for usual conduct of its business. The persons who spoke on the occasion including Sri. Sitaram Yechury, who moved the motion, Sri. Arun Jaitley and Sri.Ram Jethmelani attempted to criticize the judiciary expressing their opinion in general about the judges’ conduct and behavior and the need and necessity for establishing the judicial commission. Even the legal luminary Sri.Ram Jethmelani , made a specific statement that this occasion in making the judiciary realize that the   parliament is supreme should not be wasted.   Some of the members criticized the mode of appointment of judges based on Collegiums. All these discussions amount to scandalizing of judiciary and judicial process which is barred under Art. 121 of the Constitution. The constitution has drawn a clear ‘Lakshman Rekha’ that the debate in Parliament should not be discussed by the judiciary and similarly the judges conduct and proceedings should not discussed inside the Parliament except regarding impeachment of the judge concerned based on the report of proved misbehavior. On the contrary, during the impeachment proceedings, the merits of the report were not independently discussed or appreciated by the members.

When the motion is adopted and the Report is already submitted before each member of the House, the members ought to have formed an opinion, as a juristic person, on whether the report of ‘proved misbehavior’ is to be accepted or not. Mere report of the committee on proved misbehavior or incapacity is just one part of the procedure which should be culminated with passing of the motion on appreciation of the report by each member of the House and the majority should judiciously opine by applying their mind independently without any political or any other bias. But this did not happen and the motion was made on political considerations based on partisan politics which is not recognized by the constitution and this was not contemplated by Art. 124(5) & (4) of the constitution.

In the matter relating to questioning the impeachment of Sri. V.Ramaswamy, former Judge of Supreme Court, the Supreme Court clearly observed that once the report of proved misbehavior is submitted before the House for consideration for removal of a judge, each member of the House becomes a Juristic person. Ignorance of Law or language impediment or lack of competency to understand the report on the part of the members are not reasons for waiving the constitutional obligation of Members. More so, since removal of a judge without proper procedure causes serious prejudice to the personal/official life of the judge concerned and also causes serious repercussions and far reaching consequences to the judicial fraternity. More over this improper execution of a constitutional obligation without adopting a proper procedure by law in accordance with Art.124(5) of the Constitution sets a bad precedent seriously affecting the independence of judiciary enshrined in the Constitution. Apart from general criticism and personal observations on Judiciary with no relevance to the findings of the report, what has happened inside Rajya Sabha for passing the motion was just pressing the green light as consent for impeachment, which by no stretch of imagination would have been the procedure contemplated for removal of a judge, a constitutional functionary, by the great framers of our Constitution.

The trial of the judge before the parliament is a quasi judicial procedure which requires fairness, due process and application of principles of Natural Justice. During the submission of Sri.Sen before the house, serious allegations of corruption were raised by him against other judges in the higher judiciary with special reference to the former Chief Justice of India for defending his case. The House, instead of taking serious note of these allegations made by a constitutional functionary, just discarded these statements as emotional outbursts of an Accused. The Chairman of the Rajya Sabha, prior to his submission had dictated the time limit and after his submission, directed Sri.Sen to leave the House. In his absence, the House plunged into the discussion making serious allegations against him without any reference to the merit of the findings of the committee or his submissions before the House. Thus he was denied opportunity to submit his version in reply.

As a part of procedure, Sri.Sen was invited to make his submissions before the House which was actually a submission of his defense before each member present in the House. Only on such presence, the members could have understood his expressions and body language which were part of his submissions and was necessary for proper appreciation. If otherwise, the house could have just asked for sending his note of defense in writing. However, unfortunately, he addressed the members of the House from the extreme rear end of House and not facing them. For the sake of argument, it may be contented that his address was to the Chairman of the House. But in-fact the address was before the entire House and each member of the House was part of the jury. Such arrangement for addressing the House by the Judge concerned in the proceeding was not only a mockery of the procedure but also undermining the status of a person holding a Constitutional Position and in degradation of status of Indian Judiciary.

The provisions as per Constitution as well as Judges (Inquiry) Act, 1968 to establish the allegations of misbehavior or incapacity, are fundamentally meant to be on allegations during discharge of his duties as a Judge. That is what the Constitution and Law contemplates. Once a person was elevated to the Constitutional position of a judge, any allegation prior to the elevation has no relevance in the eyes of law and is estopped in making such allegations. This was the position taken by the Hon’ble Supreme Court of India when the elevation of Justice K.G. Balakrishnan was challenged. At this juncture, it may be noted that even Justice V.R.Krishna Iyer, a legal luminary and an icon in the Indian Judicary, through the media, has also affirmed that the alleged misbehavior as a lawyer could not be a ground for removal of a judge. In furtherance to all these, the committee has no case that Sri.Sen has committed any misbehavior while discharging his duties as a judge of the High Court. The procedure adopted by the House is just an empty formality with larger consequences.

The impeachment recommended by Rajya Sabha was communicated to the Lok Sabha and before initiation of proceeding by Lok Sabha, Sri. Sen has submitted his resignation to the President of India. The reason cited by Sri. Sen for his resignation is that he does not expect justice from the Parliament. To a great extent, this belief is justified due to his experience before the Rajya Sabha. Now, taking note of his resignation and its acceptance by the President of India, the Lok Sabha has dropped further proceedings before the House in the matter of impeachment. In the absence of any prescribed manner for impeachment proceeding before parliament for considering the report of ‘proved misbehavior’ as stated above, it is only to believed that the proceedings if any had been initiated by the Lok Sabha would also have had the same fate as in Rajya Sabha.

From the above observations, it is clear that the entire action of the Houses of Parliament is in non-compliance of the legal and constitutional mandate. Apart from the decision of inquiry and sending letter to Prime Minister recommending proceedings for impeachment by the former Chief Justice and the entire procedure adopted by the House in the issue of impeachment have to, be subjected to strict judicial review more so in the light of far reaching consequences on the independence of Judiciary and since the above crucial issues were not occasioned to be considered by the Supreme Court in any of the cases regarding removal of Judges on the question of Impeachment.

My Sorrow over "The Last Page"

(By R.P. Remesan, Advocate, Kannur)

The first page in the Part 1, 2011 (2) KLT bears the title “The Last Page”. When I finished it in a single sitting, I felt for a moment, as if it were my last breath.

Among the many, I am a devotee of you. None of the articles you have written and I came across were ‘passed over’ for reading even for an hour. I am inspired from the articles as if those are the pages from a Holy book. The same enthusiasm that I felt decades ago while reading from the articles is still filled within me.

The article “the last page” is not a page from the Holy book. It has nothing to quench the thirst of any reader of you. Instead it threatens them that they should suffer the days ahead without any consoling words and guidelines from your pen and tongue.

Your inimitable talancy and skill made you as an outstanding lawyer for all the time. The legal profession is a “difficult terrain”, as you said once, but it was so easy for you. The walls of the High Court of Kerala also will speak about your charismatic handling of complicated questions of law. The furniture in the court hall may crackle when the citations of precedents came out of your tongue without any aid of notes. The articles that you have written are the examples of your deep knowledge and unbeatable courage. You are skilled to write without verbal pomposity and circumlocution which you lamented in “Judicial Prose” ((1976 KLT Journal Page 61).). When you said “ the noblest profession has now become the sorriest of trades, going fast forward, from zero to zero” (Quo Vadis Legal Profession : 1999 (1) KLT Journal Page 4.) the readers found in themselves the elements of decaying factor. There is no one to sit near you and chances of getting such kind of articles and speeches which compel us to assimilate the saga of wisdom are remote. Let me choose your own sentence with modification ‘search for another personality like you, would certainly be elusive (A Testament to Towering Judge : Justice P.T.Raman Nayar: 2001 (2) KLT Journal Page 1.).

The articles that you have written are to be obeyed and followed by the legal fraternity. In the article “Judicial Over Speed” (1980 KLT Journal Page 71.) you have pointed out the absurdity of listing system and disposal mania of the presiding officers. But Alas!, who cares!, the system acquired more speed. Contra to this the article “Once a Justice always a Justice?”(2000 (3) KLT Journal Page 84) is seen accepted by the persons among the class and I couldn’t see any of the former judges using the prefix “Justice”. When you said “a judge is only the second incarnation of a lawyer with a conferred Constitutional status for a limited period, which brings honour, not immunity” it became the more suitable definition for the word judge (Cry Noble Profession : 2001 (3) KLT Journal Page 12.).

The fledgling lawyers of all time guided by you with your mesmeric elocution and chronicles. Though the spirit of words are not followed very strictly it is the torch light in the pitch darkness. The light should continue to shine. The stunning comments that you have made in the article “Choosing God’s Middleman” that “The bar being the feeder category of the judiciary, also needs up gradation, especially when solo law practice is the order of the day; and nobody works as a junior under a senior for the tariff period. If this be the state of affairs, we should be prepared to face a judicial earthquake" will prick all hearts (2001 (2) KLT Journal page 23.).

You have taken a wand to guide the judges. The articles in which you have showed anguish over the conduct of the judges are many and it gave courage to my community. “Judge not the crusader, but the cause (1979 KLT Journal Page 100.). When you have expressed your anxiety posing a question “Quo Vadis Mandamus” you have reminded the judges about the practice of issuing of mandamus in reticent vocabulary (2001 (2) KLT Journal Page 57.). Your courage to say the truth openly and frankly influenced the persons like me heavily. You are brave enough to say that naming CHIEF JUSTICE OF KERALA is unconstitutional (1981 KLT Journal Page 15.). You have reminded a Judge who indulged in verbal exuberance and complexities that “a judge should discipline his words to the purpose of decision, and not indulge in exaggerated violence and pathos (1981 KLT Journal Page 63.). My admiration went up when I read “the quality of the Judges has been dwindling slowly” (Nambiar Second Miscellany p.62.) and “the Bar’s affection is precious judicial assets for a Judge. (Nambiar Third Miscellany, p. 66.)”

Sir, it is your privilege to stop or continue academic exercise and I have no right to say anything over it, but still I think that “the last page” is not an article to be read while the author is alive and capable of rendering wisdom. Missing of a doyan lawyer who exhorts us to become Karmayogi lawyers is unendurable.

High Court of Kerala on Admiralty Jurisdiction :
An Opportunity Missed?

(By V.N. Haridas, Advocate, High Court of Kerala)

The recent judgment by the High Court of Kerala on Admiralty law (M. V. Free Neptune v D.L.F. Southern Towns Private Ltd. (2011(1) KLT 904).) raises serious concerns for the shipping community and also for maritime lawyers. High Court of Kerala through this judgment directs “any person approaching this Court invoking the admiralty jurisdiction of this Court shall institute suit in accordance with the procedure contemplated under the Code of Civil Procedure, 1908. Such suit shall be tried by this Court following the procedure prescribed under the Code of Civil Procedure” (Supra n (1) paras. 23 and 24.). Further in the procedural side the judgment provides that the “rules framed by the Madras High Court in so far as they are not inconsistent with any other law for the time being in force and with appropriate modifications shall apply to the conduct of Admiralty suits until the High Court of Kerala modifies the said Rules or the Legislature intervenes in this regard(Supra n (1) para 24.)”. The significance of the judgment is on the attribution of original civil jurisdiction to the High Court of Kerala which it never possessed so far. Before examining the implications of this judgment an attempt is made to analyse the existing admiralty jurisdiction of High Court of Kerala.

The landmark decision in M. V. Elisabeth(M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd,Goa (AIR 1993 SC 1015).) has provided admiralty jurisdiction to all High Courts in India apart along with the chartered High Courts in India. High Court of Kerala has exercised several times this special jurisdiction regarding admiralty. The usual procedure before the High Court of Kerala preceding the judgment in M. V. Free Neptune is that, whoever intends to initiate an action in rem by arresting a foreign vessel has to file a Writ Petition under Article 226 of the Constitution of India seeking a direction to the port authorities to detain the foreign vessel relying on section 443 of the Merchant Shipping Act('Arrest of Ships for Enforcing Maritime Claims’ Available at http://admiraltvlawkochi.blogspot.com). The combined application of Constitution of India and Merchant Shipping Act along with the ratio in M. V. Elisabeth in dealing admiralty cases by the High Court of Kerala was necessitated due to the fact that the Court is not a chartered High Court under Colonial Courts of Admiralty Act 1891 and does not possess original civil jurisdiction as they possess by virtue of Letters of Patent Act 1862. Once the vessel is detained and the owner has appeared before the court the matter is relegated to the proper forum for adjudication by the High Court of Kerala and the proceedings continue in personam.

It is often misconstrued and confused with the terms Admiralty ‘suit’(Emphasis added by the author.), ‘Admiralty jurisdiction’, ‘maritime claim’ and ‘arrest of vessel’ and M. V. Free Neptune is not free of this difficulty. ‘Admiralty jurisdiction’ implies that the vessel has a juridical personality- almost corporate capacity, having not only rights but liabilities (some times distinct from those of the owner) which may be enforced by the process and decree against vessel, binding upon all interested in her and conclusive upon the world. Admiralty jurisdiction in appropriate cases administers remedies in rem, i.e, against the property, as well as remedies in personam i.e., against the party personally(Benedict, The Law of American Admiralty Vol.1 (6th Ed).p.3. Quoted in M. V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd, Goa (AIR 1993 SC 1015).). Admiralty jurisdiction confers upon the claimant a right in rem to proceed against the ship or cargo as distinguished from a right in personam to proceed against the owner. The arrest of the ship is a mere procedure to obtain security to satisfy judgment. Thus admiralty suit is only a proceeding in rem initiated to arrest a foreign vessel in order to secure a security if the claimant succeeds to procure a judgment or award in future.

Now coming to the present judgment, The Hon’ble High Court framed four issues. The four issues formulated by the court are as follows:

1    Whether the claim such as the one made by the petitioner is a “maritime claim” as understood in law in this country?

2.   If it is a “maritime claim”, whether this court is the appropriate forum for adjudicating such maritime claims?

3.   In the absence of any law structuring the admiralty jurisdiction of this Court [which has been declared to be inherent in this court in M. V. Elisabeth's case] what are the limits and contours of the said jurisdiction? And

4.   What is the procedure to be followed in exercising such jurisdiction?

The facts of the case provides that along with other prayers the petitioner sought an interim prayer for the arrest and detention of the 1st respondent ship which, at that point of time, was berthed at Chennai Port  (Supra n(l) para 6.Emphasis added by the author). The berthing of M.V. Free Neptune in Chennai Port itself would have raised the primary issue that the High Court of Kerala by exercising its Admiralty jurisdiction can arrest and detain a foreign vessel which was out of its territorial limits or jurisdiction?

It is a settled position of law that in an action in rem the ship should be within the jurisdiction of the court at the time proceedings are started  (Supra n (4) para 56, 78, 89 and 94.). In this aspect also see Section 3(15) of the Merchant Shipping Act, 1958 defines ‘High Court’, in relation to a vessel, as “the High Court within the limits of whose appellate jurisdiction...” It would mean a foreign vessel falls within the jurisdiction of the High Court of Kerala only if the vessel happens to be at the territorial limits of Kerala at the relevant time. It has been reiterated by the High Court of Kerala itself that High Court of Kerala cannot detain a foreign vessel if it happens to be out of its territorial limits.(Ocean Lanka Shipping Co. (Pvt) Ltd. v. MV Janate (1997(1) K.LT 369).) Therefore the present decision by Division Bench in M.V. Free Neptune affirming Single Bench decision to detain a foreign vessel which was at Chennai port at relevant point of time is apparently either wrong or per incuriam.

In M. V. Free Neptune the Division Bench by overlooking the fundamental principle of admiralty jurisdiction, proceeds to consider what could be the procedure to be followed in exercising such jurisdiction. The Court presumes that disputes falling within the admiralty jurisdiction arise out of contractual rights and obligation which normally requires investigation into factual allegations. In such cases, a suit is the appropriate proceeding and such suit shall be tried by this Court (read High Court of Kerala) following the procedure prescribed under the Code of Civil Procedure(Supra n (1) para 23 and 24.)”. Here the Court confuses with the legal concepts mainly exercise of admiralty jurisdiction and adjudication of maritime claims.

Exercising admiralty jurisdiction of a High Court via an ‘Admiralty Suit’ is having a very limited purpose of securing a security as discussed above. Arrest of a foreign vessel via admiralty suit is regarded as a mere procedure to obtain security to satisfy judgment. The petitioner claimant may therefore detain the foreign vessel by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of jurisdiction, thus leaving the petitioner claimant without any security. Such an action is provisional in character which induces the owner to submit to the jurisdiction of the Court, thereby making himself liable to be proceeded against by the plaintiff in personam. Once such owner submits to the jurisdiction, the matter will be relegated to the proper forum for adjudication(Supra n (4) para 46.).

As the Court rightly observed that the disputes falling within the admiralty jurisdiction arises out of contractual rights and obligation, it is not quite uncommon that the parties agree themselves with respect to the form and forum of dispute resolution, it is part of their freedom of contract to choose either to go for arbitration subject to English law or to go for mediation in Paris. This raises the legal issues that how High Court of Kerala can deprive of the parties their freedom of contract and insist them to subject to a protracted ‘civil suit’ at High Court of Kerala? Before rushing such a conclusion the Court ought to have considered the difference between ‘Admiralty Suit’ and “Adjudication of Maritime Claim’. At present different Subordinate Courts and Munsiff Courts in Kerala are adjudicating different maritime claims. Application of the ratio in this Judgment will result in the transferring of all matters pending before those courts to High Court of Kerala. If maritime claims can be resolved only by civil suit in High Court, will it be a ground for appeal to an unsuccessful party that the dispute has been resolved in wrong forum without having any jurisdiction?

Moreover this judgment attributes original civil jurisdiction to High Court of Kerala which so far neither existed nor exercised. The question that would arise is whether this jurisdiction is exclusively for maritime claims? Also whether a High Court can assume jurisdiction by itself and thereby oust jurisdiction of its subordinate courts? The court also ought to have considered the existing procedure for admiralty cases before outlining a novel one. The problems with respect to Admiralty Law subsist all over India which can only be resolved through a comprehensive national legislation. The issues peculiar to Kerala are that of frivolous arrest(For a detailed discussion pertaining to vessel arrest in Kerala, ‘Arrest of Ships for Enforcing Maritime Claims' Available at http://admiraltylawkochi.blogspot.com) and it can be effectively resolved by proper appreciation of law by the judges and allowing ship owners or the vessel to file a general caveat against the world at large thereby before any motion of arrest is issued, notice to be given either to the vessel or to her representative.

High Court of Kerala even though rightly observed admiralty law as a peculiar branch of law which demands rather an academic treatment failed to understand the fundamental principles behind admiralty jurisdiction. Failure to appreciate the basic principles and existing procedures for the exercise of admiralty jurisdiction unfortunately mark this judgment in the history of admiralty jurisprudence as an opportunity being missed by an amateurish discours.

Judicial Activism -- Walking on the Razor's Edge

(By A.K. Jayasankaran Nambiar, Senior Advocate, High Court of Kerala)

In a recent judgment (G.V.K. Industries v. I.T.O.– 2011 (2) KLT SN 2 (C.No.2) SC = (2011) 4 SCC 36), a Constitutional Bench of the Hon’ble Supreme Court observed as follows:

“ Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of the welfare of and the security of the nation...powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that such power is being used within the bounds specified in the Constitution. Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the government in discharging their constitutional responsibilities. Powers that have been granted, and implied by and borne by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution. Walking on that razors edge is the duty of the judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate branch of the Government; but restraint cannot imply abdication of the responsibility of walking on that edge.”

Instances are not few where Judges in our country have thought it fit to walk on that edge and correct executive/legislative action so as to bring it in line with the Constitutional text. Their choice of positive action, as against the traditional restraint, in situations where it was deemed necessary, has acquired the rather exaggerated label of “judicial activism”. Judicial activism in a democracy is a legally sophisticated way of saying that a Judge has just done what the legislature or executive ought to have done. It was born out of a necessity to provide relief to citizens who, in a democracy, were exasperated with the inefficiency of a legislature or an executive body. The justification for this sort of transgression into the realm of legislative or executive action is often found in the expression “Well, somebody had to do it !”

The need for action by someone does not, however, justify the conferring of unbridled powers on any particular organ, especially the judiciary, to act in such situations. The opposition to judicial activism - in its unbridled form - is both vehement and historic. The proposition that, in a democratic set up, Judges should be left to legislate on matters, as yet untouched by the legislature, was considered as “nonsense upon stilts” by Jeremy Bentham. This sentiment hasn’t changed in the last half century and understandably so, for no form of governance, that is built up on a system of checks and balances between the various organs that constitute it, can readily accept a proposal that cuts at the very core of the system. “All would be lost”, wrote Montesquieu, “if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals. (Spirit of the Laws (1750))”.

Judges, the argument goes, are not elected representatives of the people and hence their views cannot represent the views of the people. They are people trained in law and legal interpretation and their opinions ought to be confined to issues involving an interpretation of the law enacted by the legislative body. Inherent in this argument is the recognition that the laws that govern a society are ultimately a set of rules that owe their existence to an acceptance of them by a majority of those governed. It is this recognition that led Sir Paul Vinogradoff to define law as “a set of rules imposed and enforced by a society with regard to the attribution and exercise of power over persons and things (Common  Sense  in  Law;  Second  Edn. P.44)”. Laws cannot exist or be validly enforced if a majority of those that are governed by them do not see them as necessary for peaceful coexistence within the society. This is why the preamble of the Constitution of India - our grundnorm - uses the words “ We the people of India give to ourselves this Constitution”.                                                                                                                  (emphasis supplied).

The legislature being comprised of elected representatives of the people, a law enacted by such a body is presumed to have the consent of the people. But is this necessarily the case? Can we really say that all our laws accord with what the majority really believes should be the law? Do our legislators really ascertain the views of the people before enacting laws? And what happens if our legislators do not enact a much-needed law? Over the years we have seen legislators let us down, and the executive not live up to the expectations of the people. Judicial intervention was necessitated to address these issues and, in so intervening, the judiciary was not being overly “active” but simply exercising its role as the guardian of the constitutional rights of citizens - the sentinel on the qui vive. However, in exercising their duties, Judges are not to act in accordance with their perception of the needs of the society for they do not possess the expertise or the means of gathering information as regards the needs of the society. Even if they do get the required information, can we afford to entrust the fate of our society to the perceptions of a couple of persons? The answer must certainly be in the negative.

In practice, Judges mostly decide issues that arise in connection with individual rights - be it against the State, another individual or some other legal entity. These cases bring to the fore issues that are relevant for resolving particular conflicts. They seldom involve an issue that affects the society as a whole or one that requires a balancing of the interests of various sections of the society. It is these latter kind of issues that go into the making of a law for the society as a whole. It might be argued that such issues do get debated in courts when public interest litigations are considered. In practice, however, such instances are rare. The guidelines laid down by the Supreme Court in relation to entertainment of public interest litigations are indicative of the problems that were faced, and are still being faced, by the courts in identifying the genuine from among a multitude of petitions that are filed as public interest litigations. One can safely conclude, therefore, that law making for a society should not be left solely to the judiciary either.

The principle of separation of powers, though not in the strict sense advocated by Montesquieu in the 18th Century, offers a solution to the myriad of problems that we face today. When read with the allied concept of checks and balances, it urges the various organs of Government to adopt an attitude of self restraint in their functioning while, at the same time, checking the excesses, if any, of the other organs. The power of judicial review is an exception to the principle of separation of powers and it postulates that, in the event of a dispute as to whether the legislature or the executive has overstepped its constitutional bounds, the judiciary shall decide the dispute by application of well established constitutional doctrines and principles of interpretation. The judiciary cannot be overly active or annoyingly inactive while dealing with a situation of either legislative inaction or legislative excess. A balance, therefore, has to be struck by the judiciary while deciding on its course of “activism”.

Supporters of the conservative approach view judicial restraint as a kind of “activism” in itself. There is a conscious decision not to act. Judicial restraint in its traditional sense views law as a logical, closed system, detached from particular historical, social and cultural circumstances; the law as comprised of a system of rules, including rules established for the purpose of fact-determination. The subjective social policy preferences of a Judge have no role to play in such a decision making process. Judicial enthusiasm, to such persons, spells danger. An eminent Judge of our Supreme Court opined, in 2005, that “tradition and good sense demand that, irrespective of the political debate around, the Judge maintains a neutral stance in his decision making, being guided only by accepted legal principles and the dictates of his conscience. The Judge being human, the social ambience in which he operates is likely to affect his judgment, but the extent to which he disallows this to happen determines his mettle”. He went on to state “indeed nothing can be more headier than the power to invalidate another constitutional organ’s action. Such great power must of necessity bring in its wake great responsibility. The problem with judicial activism is its proclivity for excessive and legally improper use of this very great power to invalidate arguably lawful and proper legislative or executive actions. In fact, history abounds with instances where overactive Judges have jettisoned well-established principles to produce incongruous results, which they honestly thought were necessary, even if democratically elected legislatures or executive thought otherwise (“Skinning a Cat” by Justice B. N. Srikrishna - 2005 (8) SCC (J) 3)”.

The “bold spirits”, on the other hand, would state that if judicial activism is to offer a solution to the particular problems highlighted above, it must be founded on the notion that the essence of legal life lies in reality rather than logic and the realisation that the object of the law is to outline policies which will serve to resolve social conflicts. Judges working under a Constitution, that upholds the Rule of Law in a society, can play an “active role” in curing legislative inaction or curbing legislative excesses. Active interpretation of the letter of the law, to encompass within its meaning rights or obligations, not expressly stated but which can be implied in the light of the existing policy, is viewed as judicial creativity and innovation. The judiciary acts in situations that call for imagination and creativity to appropriately mould the law to do justice to one and all and to balance the rights of competing individuals.

How then is the balance to be struck? In Re Spectrum Plus Ltd, Lord Nicholls of Birkenhead observed that courts exercise the “legitimate law-making function of keeping the common law abreast of current social conditions and expectations ((2005) 2 AC 680 @ p. 697 C-F.)”. In the Indian context, this would mean that while discharging its dual functions of curing legislative inaction and curbing legislative excess, judicial activism must ensure that, when the legislature fails to enact a much-needed legislation, the judiciary steps in - but only temporarily - to provide a law that would hold the field until the legislature comes out with a comprehensive law on the said subject. The “activism” of the judiciary would then have the effect of providing the required “nudge” to the legislative and executive bodies to act promptly to address citizen’s needs, and nothing more. Judge made law would be viewed as merely “provisional” and pending affirmative action by the other organs of Government. This, for instance, was what the Supreme Court did in the case of Visakha & Ors. v. State of Rajasthan & Ors (1997 (2) KLT SN 72 (C.No.72) SC = JT (1997) 7 SC 384.).while laying down guidelines to deal with sexual harassment of women at their workplace. A more recent example of such activism was seen in the case of Aruna Ramachandra Shanbaug v. Union of India & Ors.(2011 (3) KLT SN 26 (C.No.30) SC = (2011) 4 SCC 454.), which explored the scope and ambit of a citizen’s right to die.

When dealing with a situation of legislative excess, on the other hand, judicial activism should ensure, through a process of purposive interpretation, that the law made by the legislature does not transgress the boundaries set by the Constitution and is brought in line with the social object that it seeks to achieve. Such intervention would, apart from preventing unintended consequences, also ensure a change in the attitude of the lawmakers who would be mindful of possible judicial intervention while enacting a law. That this is the current thinking in our country is apparent from the observations of the Supreme Court in a recent case where it said “It must be understood that while a statute is made by the peoples’ elected representatives, the Constitution too is a document which has been created by the people (as is evident from the preamble). The courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or the legislature as unconstitutional (Govt. of A.P v. P. Laxmi Devi - 2008 (2) KLT SN 13 (C.No.13) SC = (2008) 4 SCC 720 @753)”.

It is apparent, therefore, that while an “active” judiciary is both necessary as well as desirable to ensure a proper system of governance, “activism” cannot justify an unwise encroachment into the domain of the executive or the legislature. In my view, due caution must be exercised by the judiciary while interfering with laws enacted by the legislative bodies and interference ought to be limited to cases where the civil liberties and fundamental rights of the citizens are at stake.

Complaint and Appeal under the Right to Information Act, 2005

(By R. Muralidharan, Managing Director, PONTEX & Deputy Registrar (Legal)

 Co-operative Department, Puducherry)

In the absence of a mechanism to ensure compliance of the mandate of the Right to Information Act by the public authorities, simply providing right to the citizens to seek information would be just sham. There is an inbuilt provision in the Act providing the citizen an effective, efficacious, inexpensive and time bound procedure to prefer complaint and appeal against non-disclosure of information or delayed information.  This is, perhaps the only Act which imposes penalty on the Public Information Officer (PIO) for his failure to comply with the time limit.  Two avenues of remedies are provided in the Act – the first appeal before the senior officer of the PIO in the same department and the second appeal before the Central/State Information Commission.  Complaints are filed directly to the Central/State Information Commission, by-passing the first appellate authority.

Complaint

Section 18 of the Right to Information Act, 2005 lays down the powers and functions of Information Commission, while Section 19 of the Act provides for appeals.  These two sections are to be read together.  The first one arises out of a complaint preferred by a citizen directly to the Commission and the other arises out of an appeal filed against the first appellate authority.  The reliefs the Commission could grant as the authority receiving complaints are included in the reliefs the Commission grants while deciding second appeal.  On the first look there appears a mix up of concurrent jurisdiction.  A close look will bring out the correct import.

One of the functions of the Central/State Information Commission is to receive complaints from any person that-

(i) A public authority has not appointed Public Information Officer and the Assistant Public Information Officer and that by reason of which the citizens are deprived of a forum to file applications for information;

(ii) That information asked for is refused;

(iii) That the response or access provided for is inadequate;

(iv) That the fees required to be paid is not reasonable;

(v) That the information furnished is either incorrect or inadequate;

(vi) Any other inadequacy relating to dissemination of information if the Commission is satisfied, it may initiate an enquiry in this regard.

For the purpose of such enquiry the Commission shall have all the powers available under Civil Procedure Code in regard to

(a) Summoning and enforcing the attendance of witnesses;

(b) Requiring discovery and inspection of documents;

(c) Receiving evidence on affidavits;

(d) Requisitioning of any public record;

(e) Issuing of summons and examining witnesses or documents; and

(f) Any other matter which may be prescribed.

The Information Commission may during the inquiry of any complaint under this Act examine any record to which this Act applies which is under the control of the public authority and no such record may be withheld from it on any grounds.  Information/records which are exempted under S. 8 are not covered and hence to them, the Act does not apply.  This is also the case with respect of information in respect of intelligence and security organizations listed in the Second Schedule which are exempt except where corruption or human rights violations are involved.

Appeal

If disposal of applications by the PIO is adverse to the applicant he may within 30 days file an appeal (first appeal) to an officer holding a superior rank.  Animadverting the order of the first appellate authority, the applicant may prefer a further appeal (second appeal) within 90 days to the Central/State Information Commission.  In the first and second appeal, the appellate authorities have power to condone the delay in filing appeal if the applicant therein shows sufficient cause which prevented filing of appeal in time.  In the appeal, the burden of proving that the denial of request is justified lies on the authority which denied the information.  It means that it is for the authorities to prove the existence of the several circumstances envisaged in Ss.8 and 9 to deny the information to the applicant.  This right to file the first and second appeal is available to the third party if the information which is sought to be kept confidential is allowed to be disclosed.

The First Appellate Authority (FAA) is required to dispose of the appeal within 30 days of its receipt.  The period may be extended to 45 days for reasons to be recorded in writing. The FAA can modify the order of the PIO.  In his decision, he may direct the PIO either to disclose the information or endorse the decision of the PIO to withhold the information.  He may also take different grounds for denying the information from those mentioned by the PIO.  The FAA, however, is not empowered to impose any penalty on the PIO.

A second appeal against the decision of the PIO lies before the Central/State Information Commission. The second appeal can also be filed if the first appeal is not decided within the time limit.  No fee is prescribed for filing the appeal before the Information Commission.  Appeal against the decision of the PIO cannot be filed directly with the Commission.  The appellant is required to exhaust his remedy of first appeal.

In its decision, the Information Commission may:

(i) Require the public authority to take such steps as may be necessary to secure compliance with the provisions of the Act;

(ii) Require the public authority to compensate the complainant for any loss or detriment suffered;

(iii) Impose any penalties;

(iv) Reject the application.

The Information Commission has the mandate to ensure that the appellant gets the required information from the public authority, if it does not fall under any exempted category or if the appellant could demonstrate larger public interest in its disclosure.  If the remedy lies elsewhere, no relief could be granted under the Act.

Scope  of  appeal  and  complaint

The Delhi High Court in Union of India v. Central Information Commission & Ors.  (2010 (1) ID 113), explained the scope of appeal before the Second Appellate Authority. Its domain is restricted to subject matters that are appealable before the FAA under S. 19 (1) of the Act. Second Appellate Authority cannot therefore go into the questions which cannot be raised and made subject of appeal before the FAA. As a necessary corollary, the Second Appellate Authority i.e. the Central or the State Information Commissions can examine the decision of the PIO or their failure to decide under S.7(1) or the quantum of cost under  S. 7(3)(a). They can also go into third party rights and interests under S.19(4). Central or the State Information Commissions cannot examine the correctness of the decisions/directions of the Public Authority or the competent authority or the appropriate government under the R.T.I. Act, unless under S. 18 the Central/State Information Commission can take cognizance. The information seeker is however not remediless and where there is a lapse by the competent authority, the public authority or the appropriate government, writ jurisdiction can be invoked. It is always open to a citizen to make a representation to public authority, appropriate government or the competent authority whenever required and on getting an unfavourable response, take recourse to constitutional rights under Article 226/227 of the Constitution of India. In a given case, the Central or the State Information Commissions can recommend to the competent authority, public authority or the appropriate government to exercise their powers but the decision of the competent authority, public authority or the appropriate government cannot be made subject matter of appeal, unless the right has been conferred under S. 18 or 19 of the RTI Act. Central and State Information Commissions have been created under the statute and have to exercise their powers within four corners of the statute. They are not substitute or alternative adjudicators of all legal rights and cannot decide and adjudicate claims and disputes other than matters specified in  Ss. 18 and 19. 

Second  appeal  should  be  decided  within  45 days

The provisions of the Act and Rules do not prescribe any period within which a second appeal under S. 19(3) is to be disposed of. S. 19(6), however, prescribes the period within which appeals under sub-ss.(1) and (2) of S.19 are to be disposed of. Such appeals are to be disposed of within 30 days from the date of receipt thereof or within such extended period not exceeding a total of 45 days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.  A second appeal arises from a decision in a first appeal under S. 19(1), and a first appeal arises from a decision or a failure to give a decision under S.7. The sparkle of a strong strand of speed woven through the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild. This open-ended second appeal scheme is bound to make the S.6 request go totally adrift generating a multi-tier avoidable and unwanted offshoot Court proceedings such as this case.  Keeping in mind the respective maximum periods fixed for deciding a first appeal under S. 19(1) and disposal of a request for obtaining information under S.7, the Calcutta High Court in Akhil Kumar Roy v. The West Bengal Information Commission & Ors. W.P. No. 11933 of 2010, dated 7.7.2010 ruled that the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof.

The  aggrieved  person  can  file  a  complaint  or  move  an  appeal – the  remedies  are concurrent

Once a State Public Information Officer rejects an application for information or refuses to act on such application within the time limit prescribed therefor, the aggrieved information seeker has two remedies under the Act. One of these is to approach the appellate authority under S.19 (1). The other is to bring it to the notice of the State Information Commission by filing a complaint that request for information under the Act has been refused. The refusal may arise out of inaction; it may also arise out of rejection of an application. In case of refusal to give access to information, the statute provides a choice to the information seeker and that in exercise of such choice he approaches the State Information Commission with a complaint. Filing of such complaint is provided for in law and the same having been filed well within 30 days from the date of the order passed by the State Public Information Officer rejecting the application under S.6; the State Information Commission had acted in terms of power conferred by S.18 to enquire into such complaint. It is settled law that if statute provides more than one remedy, the aggrieved person has the right to choose the forum competent to remedy his grievance. A complaint against refusal to furnish information being statutorily recognized, the State Information Commission would be perfectly justified in enquiring into it as part of its duty as mandated by S.18(1) of the Act (Tata Motors Limited & Anr. v. State of West Bengal & Ors. (W.P. No. 1773 of 2008 dated 12.1.2010 - Calcutta H.C.).

Similar view was held by the Kerala High Court in B. Sajikumar vs. The Kerala State Information Commission & Ors. , in W.P. No. 31039/2009 dated 2.11.2009. S. 18 of the Act empowers the State Information Commission to enquire into a complaint that there has been no response to the request to furnish information within the time limit specified under S. 7(1) of the Act. 

Section 7(2) of the Act states that if the information sought is not furnished within the time limit of 30 days, the application should be deemed to have been refused. Therefore by operation of law a deeming fiction is created under which the person seeking information is given the right to file an appeal before the first appellate authority under S. 19 of the Act even though the original authority may not have rejected the application. The mere fact that a person seeking information is entitled to prefer an appeal on the 31st day after his application for information was submitted is not a ground to hold that the State Information Commission is denuded of its power to enquire into a complaint that there has been no response to the request for information or access to information within the time limit of 30 days. It is open to the person seeking information to move the State Information Commission complaining about the inaction of the State Public Information Officer, instead of filing an appeal. The remedies are concurrent and the mere fact that an appeal lies after the expiry of 30 days to the first appellate authority is no ground to hold that the State Information Commission cannot exercise the jurisdiction vested in it under S. 18 of the Act.

Power  of  the  State  Information  Commission  while  dealing  with  complaint  under Section  18  cannot  be  the  same  to  its  power  under  Section 19

In Section 18 there is nothing to show that while dealing with or disposing of a complaint regarding failure of PIO to give a response to a request for information or access to information within the time limit specified under the said Act and as such, the PIO having been deemed to have refused the request for information made by the complainant, the State Information Commission is empowered to pass an order or direction to the PIO for furnishing the information sought by the complainant. The complainant’s grievance is basically regarding the failure of the concerned PIO to give a response to the application for information within the time limit specified in the Act without assigning any reason. In that situation the State Information Commission is not required to consider about applicability or otherwise the provisions of Ss. 8, 9, 10, 24 and Second Schedule of the Act.  Since the PIO had not yet disposed of the said application of the second respondent on merit, the State Information Commission ought not to have considered the question of applicability  or otherwise the provisions of Ss. 8, 9, 10, 24 and Second Schedule of the Act. 

Allowing the appeal, the Division Bench of Gauhati High Court in State of Manipur & Anr. v. The Chief Information Commissioner & Anr. (AIR 2010 Gau. 183 : 2011 (1) ID 251) held that the power of State Information Commission while dealing with a complaint under S. 18 cannot be considered as the same to its power while dealing with a second appeal under S.19.  By disposing of the said complaints the State Information Commission proceeded as if it was dealing with a second appeal and disposing the same on merit.  The State Information Commissioner acted illegally and beyond its jurisdiction in passing the directions.

Views  of  the  Central  Information  Commission

As per the Act, when there is no response from the CPIO within the time specified under S. 7(1) of the Act, it would amount to deemed refusal and the applicant can straightaway approach the Central Information Commission under S.18(1)(c) of the Act. (Mohd. Kasim v. Bharat Refractories Limited, No. 2913/ IC (A)/2008 dated 21.7.2008).

If we read the concerned section (S.18) it does not indicate that a complaint is not maintainable if it has been disposed by PIO and the Appellate Authority. Instead sub-section (1) (e) clearly reads, that the applicant can always approach the State Information Commission or Central Information Commission as the case may be, where the information provided is false, misleading  or incomplete. (Arun Kumar Paswan v. Univesity of Delhi ( CIC /SG/C/2009/000100/2611 dated 2.4.2009).

Need  of  the  hour

From the above discussion one may very well comprehend that the appellant has the choice either to prefer a complaint under S. 18 or resort to appeal under S.19.  However on going through the decisions of the Central Information Commission periodically it may be found that the CIC consistently decides to direct the appellant/complainant to approach the appellate authority and if aggrieved over his decision to come to the Commission by way of second appeal.  In some cases, the complaint is treated as first appeal and remanded to the first appellate authority for disposal in the manner known to law.

Juxtaposing Ss. 18 and 19 it may be seen that a complaint can also be filed in case the PIO does not respond within the time limits specified under the Act or gives incomplete, misleading or false information.  On the very same grounds an appeal is maintainable under S.19.  Filing complaints on the above premises directly to the Commission, when an avenue by way of first appeal is available, certainly overburdens the Commission.  It is but true that the Commission takes time for disposal of the second appeals and complaints.  If the Act is amended in such a way to take away the above two grounds from the purview of complaint it would do more good to the Commission to dispose the second appeals faster.  It also saves the complainant from the trouble of filing complaint in the first instance and thereafter first appeal, on the direction of the Commission.  Thus is has a twin advantage.

It appears that in most of the complaints the grouse is non-furnishing of information or delay in responding or on the quality of information furnished.  The causes, by and large, are the grounds for first appeal.  Before they reach the Commission the FAA can filter them.  The appellant get efficacious and alternative remedy, the Commission can concentrate on real issues.  It is a win-win situation.