Central Board of Secondary Education & Another v. Aditya Bandopadhayat & Others (2011 (3) klt SN 117 (C.No.120) SC -- The Apex Court Addresses more Issues on the Right to Information Act, 2005
By R. Muralidharan (Deputy Registrar (Planning & Legal), Co-operative Department, Puducherry
10/10/2011
Central Board of Secondary Education & Another v. Aditya Bandopadhayat & Others
(2011 (3) klt SN 117 (C.No.120) SC -- The Apex Court Addresses
more Issues on the Right to Information Act, 2005
(By R. Muralidharan, Managing Director, PONTEX and Deputy Registrar (Legal),
Co-operative Department, Puducherry)
In the land mark judgment in Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay & Ors. (2011 (3) klt SN 117 (C.No.120) SC dated 9th August 2011, the Hon’ble Supreme Court of India affirmed the order of the Calcutta High Court directing examining bodies to permit examinees to have inspection of their answer books. A number of tangential issues also have been decided by the Court which would have a definite impact on implementation of the Right to Information Act, 2005 (for easy reference, hereinafter, the ‘Act’). In my view this is only the second dictum of the Apex Court on this Act, but a very comprehensive, analytical and wide ranging decision, certainly upholding the avowed object of the Act. In this article I intend to analyze the nucleus point decided and more on the supplementary issues, as they will have a certain bearing to all the stake holders.
The core issue
On analyzing Section 3, the Court held that this section makes it clear that the Act gives a right to a citizen to only access information, but not seek any consequential relief based on such information.
On the first issue, whether an examinee’s right to information includes a right to inspect his evaluated answer books in a public examination or taking certified copies thereof, it was held that when a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also ‘information’ under the Act. The examining bodies (universities, examination boards, CBSE etc.) are neither security nor intelligence organizations and therefore the exemption under Section 24 will not apply to them. The disclosure of information with reference to answer-books does not also involve infringement of any copyright and therefore section 9 will not apply. Resultantly, unless the examining bodies are able to demonstrate that the evaluated answer-books fall under any of the categories of exempted ‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8, they will be bound to provide access to the information and any applicant can either inspect the document/record, take notes, extracts or obtain certified copies thereof. Taking up the second issue, whether the decision of the Court in Maharashtra State Board of Secondary Education v. Paritosh B. Sheth ((1984) 4 SCC 27) etc., in any way affect or interfere with the right of an examinee seeking inspection of his answer books or seeking certified copies thereof, the Court went on to hold that what arises for consideration is the question whether the examinee is entitled to inspect his evaluated answer-books or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining bodies, but under the Act which enables them and entitles them to have access to the answer-books as ‘information’ and inspect them and take certified copies thereof. Section 22 of Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the R.T.I. Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of Section 8(1) of Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations. Therefore, the decision of this Court in Maharashtra State Board (supra) and the subsequent decisions following the same, will not affect or interfere with the right of the examinee seeking inspection of answer-books or taking certified copies thereof.
On the penultimate question, whether an examining body holds the evaluated answer books ‘in a fiduciary relationship’ and consequently has no obligation to give inspection of the evaluated answer sheets under section 8(1)(e) of the Act, the Court rejected any such relationship. After explaining the meaning of the terms ‘fiduciary’ and ‘fiduciary relationship’ the Court said that an examining body, if it is a public authority entrusted with public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest. Section 8(1)(e) provides that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. One of the duties of the fiduciary is to make thorough disclosure of all relevant facts of all transactions between them to the beneficiary, in a fiduciary relationship. By that logic, the examining body, if it is in a fiduciary relationship with an examinee, will be liable to make a full disclosure of the evaluated answer-books to the examinee and at the same time, owe a duty to the examinee not to disclose the answer-books to anyone else. Therefore, if a relationship of fiduciary and beneficiary is assumed between the examining body and the examinee with reference to the answer-book, section 8(1)(e) would operate as an exemption to prevent access to any third party and will not operate as a bar for the very person who wrote the answer-book, seeking inspection or disclosure of it.
An evaluated answer book of an examinee is a combination of two different ‘information’. The first is the answers written by the examinee and second is the marks/assessment by the examiner. When an examinee seeks inspection of his evaluated answer-books or seeks a certified copy of the evaluated answer-book, the information sought by him is not really the answers he has written in the answer-books (which he already knows), nor the total marks assigned for the answers (which has been declared). What he really seeks is the information relating to the break-up of marks, that is, the specific marks assigned to each of his answers. When an examinee seeks ‘information’ by inspection/certified copies of his answer-books, he knows the contents thereof being the author thereof. When an examinee is permitted to examine an answer-book or obtain a certified copy, the examining body is not really giving him some information which is held by it in trust or confidence, but is only giving him an opportunity to read what he had written at the time of examination or to have a copy of his answers. Therefore, in furnishing the copy of an answer-book, there is no question of breach of confidentiality, privacy, secrecy or trust. The real issue therefore is not in regard to the answer-book but in regard to the marks awarded on evaluation of the answer-book. Even here the total marks given to the examinee in regard to his answer-book are already declared and known to the examinee. What the examinee actually wants to know is the break-up of marks given to him, that is how many marks were given by the examiner to each of his answers so that he can assess how his performance has been evaluated and whether the evaluation is proper as per his hopes and expectations. Therefore, the test for finding out whether the information is exempted or not, is not in regard to the answer book but in regard to the evaluation by the examiner.
The examining body entrusts the answer-books to an examiner for evaluation and pays the examiner for his expert service. The work of evaluation and marking the answer-book is an assignment given by the examining body to the examiner which he discharges for a consideration. Sometimes, an examiner may assess answer-books, in the course of his employment, as a part of his duties without any specific or special remuneration. In other words the examining body is the ‘principal’ and the examiner is the ‘agent’ entrusted with the work, that is, evaluation of answer books. Therefore, the examining body is not in the position of a fiduciary with reference to the examiner. On the other hand, when an answer-book is entrusted to the examiner for the purpose of evaluation, for the period the answer-book is in his custody and to the extent of the discharge of his functions relating to evaluation, the examiner is in the position of a fiduciary with reference to the examining body and he is barred from disclosing the contents of the answer-book or the result of evaluation of the answer-book to anyone other than the examining body. Once the examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not have any copy-right or proprietary right, or confidentiality right in regard to the evaluation. Therefore it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner.
On the final question, if the examinee is entitled to inspection of the evaluated answer books or seek certified copies thereof, whether such right is subject to say limitations, conditions or safeguards, the answer of the Court is that the information as to the names or particulars of the examiners/co-coordinators/scrutinizers/head examiners are exempted from disclosure under section 8(1)(g), on the ground that if such information is disclosed, it may endanger their physical safety. Therefore, if the examinees are to be given access to evaluated answer books either by permitting inspection or by granting certified copies, such access will have to be given only to that part of the answer-book which does not contain any information or signature of the examiners/coordinators/scrutinizers/head examiners, exempted from disclosure under section 8(1)(g). Those portions of the answer-books which contain information regarding the examiners/ coordinators/scrutinizers/head examiners or which may disclose their identity with reference to signature or initials shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer-books, under section 10 of the Act.
The Peripheral Issues
Information Commission has no power to direct the public authorities under Section 19(8) to preserve the information for any period larger than what is provided under the rules and regulations of the public authorities
The right to access information does not extend beyond the period during which the examining body is expected to retain the answer-books. In the case of CBSE, the answer-books are required to be maintained for a period of three months and thereafter they are liable to be disposed of/destroyed. Some other examining bodies are required to keep the answer books for a period of six months. The fact that right to information is available in regard to answer-books does not mean that answer-books will have to be maintained for any longer period than required under the rules and regulations of the public authority. The obligation under the Act is to make available or give access to existing information or information which is expected to be preserved or maintained. If the rules and regulations governing the functioning of the respective public authority require preservation of the information for only a limited period, the applicant for information will be entitled to such information only if he seeks the information when it is available with the public authority. For example, with reference to answer-books, if an examinee makes an application to CBSE for inspection or grant of certified copies beyond three months (or six months or such other period prescribed for preservation of the records in regard to other examining bodies) from the date of declaration of results, the application could be rejected on the ground that such information is not available.
The power under section 19(8) of the Act however does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with the provisions of the Act or to issue directions beyond the provisions of the Act. The power under section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of section 4(1) of the Act; and to ensure that the information enumerated in clauses (b) and (c) of section 4(1) of the Act are published and disseminated, and are periodically updated as provided in sub-sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated in clause (b) of section 4(1) of the Act are effectively disseminated (by publications in print and on websites and other effective means), apart from providing transparency and accountability, citizens will be able to access relevant information and avoid unnecessary applications for information under the Act.
There is no implied duty on the public authority to maintain the information for a minimum period of twenty years and make it available whenever an application is made in that behalf
Section 8(3) nowhere provides that records or information have to be maintained for a period of twenty years. The period for which any particular records or information has to be maintained would depend upon the relevant statutory rule or regulation of the public authority relating to the preservation of records. Section 8(3) provides that information relating to any occurrence, event or matters which has taken place and occurred or happened twenty years before the date on which any request is made under section 6, shall be provided to any person making a request. Where any record or information is required to be destroyed under the rules and regulations of a public authority prior to twenty years, section 8(3) will not prevent destruction in accordance with the Rules. Section 8(3) of the Act is not therefore a provision requiring all ‘information’ to be preserved and maintained for twenty years or more, nor does it override any rules or regulations governing the period for which the record, document or information is required to be preserved by any public authority.
Section 8 is not an exception to Section 3
Some High Courts have held that Section 8 of the Act is in the nature of an exception to Section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore Section 8 should be construed strictly, literally and narrowly. The Apex Court feels that this may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonize these two conflicting interests. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals.
‘Available and existing’ – What they mean?
The Act provides access to all information that is available and existing. This is clear from a combined reading of Section 3 and the definitions of ‘information’ and ‘right to information’ under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the Act.
No misuse or abuse of the Act
The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of the Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than those enumerated in Section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of Governments, etc.). Indiscriminate and impractical demands or directions under the Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the Act and the pressure of the authorities under the Act should not lead to employees of a public authorities prioritizing ‘information furnishing’, at the cost of their normal and regular duties.
In view of the analytical approach, absorbing attitude and thought-provoking wisdom, this judgment is a ‘must read’ on the subject. This will be one of the celebrated cases on the subject and oft quoted for a long time.
Impeachment of Justice Sen Unconstitutional -- Sets A Bad Precedent with Serious Consequences
By Sivan Madathil, Advocate, High Court of Kerala
03/10/2011
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
05/09/2011
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
05/09/2011
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
05/09/2011
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.