Coca Cola judgment : A case for introspection

(By Kaleeswaram Raj, Advocate)

The debacle suffered by the Kerala Government in Coca Cola case* should be an eye opener to the Executive and the Legislature. In the State, very often the policy decisions are not made after necessary home works and due deliberations. The statute on Self Financing Professional Colleges is an illustrative case. The Government order banning Coca Cola and Pepsi is yet another example.

The Government promulgated the order dated 10.8.2006 which was followed by another order dated 11.8.2006 issued by the Director of Health Services. Strangely, only two brands i.e. Coca Cola and Pepsi were banned. Other products were untouched. The companies challenged the order. The Division Bench of the Kerala High Court upheld the challenge and quashed the impugned orders.

The judgment was just legal. The point was simple-Whether the State had power to ban the products, on permanent basis even on the ground of adulteration. Food adulteration is item No.8 in the concurrent list. But there is a Central Statute, namely Prevention of Food Adulteration Act, 1954, governing the field. Therefore, the essential power vests with the Central Government, vide S.23 of the Act. Only residuary rule making power vests with the State Government. That is to say, the State Government cannot frame rules in the areas occupied by the Central Government. Again, by virtue of S.7 of the said Act also, power is vested with the Central Government. This position was clarified and explained by the Supreme Court in a relatively recent decision in Godawat Pan Masala case (2004). The Division Bench in para 15 of the judgment referred to the Supreme Court judgment and observed :- “S.7 (iv) of the Act is not an independent source of power for the State Government. This proposition of law, it appears was not known to the state, when impugned orders were passed”. The court further held that at the maximum, violation of S.7 “can lead to prosecution, but not to ban on sale as such”. The bench quoted the judgment of the Apex Court in extenso and held that “in view of the authoritative pronouncement of the Supreme Court in Godawat Pan Masala case, there is hardly anything which survives for consideration”. The Bench also held that in the impugned orders principles of natural justice were violated as no notice was issued to the companies. 

Coca cola case thus demonstrates the failure of the Executive and Legislature in formulating and implementing comprehensive water, environmental and health policy. There is hardly any legal research in the State. At the same time the amount spent by the State on litigation is enormous. There is a strong case for introspection in the coca cola debacle. 

First of all, the Government should have an economic and political strategy on land, ground water, agriculture, environment and public health. It should be translated into a comprehensive legislation. Ban on cola (of all brands) should not be on the solitary ground of adulteration. The statute should overcome the narrow compass of this minor penal Act. The objects of the prohibition should be- (a) conservation of land from chemical pollutants, (b) control of plastic wastes (c) preservation of ground water, (d) propagation of traditional drinks like tender coconut, water melon etc. (e) economic upliftment of coconut farmers by finding out domestic market for tender coconuts.

A comprehensive ground water policy is the need of the hour. Studies have shown that against the fresh water requirement of about 21,000 million cubic meters in Kerala during summer season only 14,000 million cubic meters is available, approximately. For the deficit, people depend upon the ground water. Land, Agriculture, public health and water including ground water come under the State list under Schedule 7 of the Constitution. No one can challenge the authority of the State Government in these areas. What is required is a legislative activism on the basis of thorough research, both scientific and legal, and a political will to implement it.

National Judicial Council -- A Welcome Move Towards Judicial Accountability

(By Pauly Mathew Muricken, Advocate, High Court of Kerala)

The decision of the Central Government to introduce Judges (Inquiry) Bill in the winter session of the Parliament to set up National Judicial Council to monitor the performance of the members of the higher Judiciary and to redress the grievances of the common man against the conduct of the Judges can be seen as a laudable attempt to ensure judicial accountability and responsibility. The Council as now proposed by the Bill although has no power in respect of appointment of Judges, still it would serve as an inhouse mechanism for redressing the grievances of the public against the conduct of Judges.

Judges under our Constitutional Scheme have been enjoying an enviable position with blanket immunity in respect of their deeds, with only through impeachment process leading to their removal. This treatment was extended to them as part of their individual or personal independence. Security of tenure, protection in the form of judicial immunity from civil proceedings, immunity from being summoned to testify about judicial decisions, judicial control over discipline of Judges, etc. were treated as part of personal independence of the Judges. This at least in some cases has paved the way for judicial anarchy by few misusing this blanket protection. This is mainly on account of absence of any effective mechanism to monitor their performance and functioning.

The impeachment process as envisaged in the Constitution is a cumbersome and onerous procedure, as it requires two third majority of the total membership of each house of Parliament and further requires that the motion for impeachment of a member of the higher judiciary should be proposed and signed by a minimum of not less than 100 members of the Lok Sabha and minimum of not less than 50 members of the Rajya Sabha. In view of such stringent procedural formalities, so far no impeachment motion has ultimately succeeded paving the way for the removal of a Judge, although in the past there have been few instances of serious allegations raised against the conduct and functioning of Judges. This is also evident from the impeachment move made against Justice Ramaswamy, which ultimately did not materialize.

Ever since the Constitution of India has come into force, there has not been a single instance of the impeachment move having succeeded. The Constitutional provision to that extent remains as a deadletter. It is in the above background of facts that the proposed Judges (Inquiry) Bill intended to set up a National Judicial Council, a five member forum, consisting of the Chief Justice of India as its Ex-officio Chairman, two Senior most Judges of the Supreme Court and two Chief Justices of the High Court nominated by the Chief Justice of India, as its members assumes significance.

Judicial accountability is a constitutional vision intended to usher the confidence of the general public in the institution of justice. In a democratic system of Government, it is of the highest importance to the people at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high-handed exercise of power by the executive. A Judge accountable should be subject to the law, Constitution, reason and conscience. Equally, Judges in their functioning should be able to instill confidence in the public by way of their impartial judgments and disciplined conduct. Judges, no doubt, will have to swim according to their conscience to uphold the Constitution. The Courts act for the people who have reposed confidence in them. The accountability of the Judges should therefore be to their conscience and ultimately to WE THE PEOPLE OF INDIA in whom the ultimate sovereignty vests. Judges are the servants of law and that they function for the society and therefore they are accountable to it.

The quality of justice in a justice delivery system depends on the quality, integrity, character, training and outlook of the persons who adorn the seats at the altar of justice. Persons selected for this high office must be men of sterling character, impeccable integrity, upright behaviour and learning and they must have the individual humility of a true “scholar who scorns delights and lives laborious days”. They must have clear vision of the social, political, and economic realities and demands of the time and proper understanding of the role, which the judiciary under the Constitution is expected to play, within the framework of Rule of Law. They should also be committed to the social philosophy of the Constitution. These elements in their own way contribute to Judicial independence and accountability and make the stream of Justice clean and pure.

In the past, we have witnessed certain disturbing trends, which have shaken the concept of Judicial accountability and transparency. Despite the recognition of the lofty ideal that an independent, impartial and fearless judiciary is the creed of the Constitution, such situations had arisen, evidently on account of the absence of effective mechanism and provisions for identifying the suitable persons to be considered for appointment and in the absence of an institutional mechanism to watch their performance.

The intention of the Constitution makers was to make the judiciary independent and accountable. Sufficient safeguards against political influence were therefore incorporated in the constitution itself. The confusion that prevailed in the matter of Judicial appointments was finally settled by the apex Court in Supreme Court Advocates on Record Association v. Union of India (AIR 1994 SC 268) by holding that the process of appointment of Judges is an integrated participatory consultative process and hence all the constitutional functionaries must perform their duty collectively so that no occasion for primacy arise.

Judicial independence and accountability by and large should be judged on the standpoints of its formation and functions. Appointment of Judges forms the major part of judicial formation. The appointment of Judges in a legal system is either by election, nomination or a combination of both. In the election method as prevalent in many States of America in respect of appointment to the Federal Courts, the selection of Judges is made by the people themselves. The other form of it is the selection by the legislature, which method is in vogue in some States of America and in Switzerland in the matter of appointment of Judges to the Federal Courts and Tribunals.

On a comparative study of the different modes of judicial appointments, it is discernible that appointment of Judges by nomination is the most popular method prevalent in most of the legal systems, with India standing as no exception. This method is the baby of the British legal system and consequently it survives in England and its erstwhile colonies, like India, Australia and Canada. This has also different forms like appointment by nomination made exclusively by the executive; jointly by the several organs of the government; by an independent judicial selection committee; and by higher judiciary in respect of the lower level judicial appointments. Amongst these different forms of appointment by nomination, appointment by an independent judicial selection committee is appreciated as the salutary model befitting the requirements of judicial independence and accountability, as it has the relative advantage of eliminating the entry of unsuited candidates from occupying the high seats of justice. The system followed in Israel is known for ensuring both judicial independence and accountability. It follows the practice of judicial appointments by an appointment committee comprising of 9 members, of which three are Judges of the Supreme Court, two are lawyers elected by the Bar Association, two are members of the Knesset and the remaining two are ministers of the Government, of whom one is the Minister of Justice who acts as the chairman of the selection committee. This method represents the participation of all decisive segments in the judicial appointment process. 

In France, the President appoints the Judges whose names are submitted to him by a body known as the Superior Council of the Judiciary, with the president as its ex-officio Chairman, Minister of Justice as its Vice-Chairman. It has also two Judges and Advocate General of the Supreme Court, three Judges from other Courts, a member of the Council of States and two members of the general public as its members. The Council also exercises disciplinary control over judicial officers. 

To safeguard independence of the judiciary and to ensure judicial accountability, fundamental changes have to be made in the appointment process of Judges, bearing in mind that they are not ordinary institutions, but constitutional institutional mechanisms assigned with a special role to act as the watchdog of the constitution and protector of the rights and liberties of the citizens. It is therefore desirable that the proposed National Judicial Council, be set up in line with the Superior Council of the Judiciary in France or Judicial Appointment Committee in Israel, armed with the power to evaluate the merit of those who qualify for appointment and to recommend to the President the persons to be appointed and to exercise disciplinary control over Judges. Such a Council should consist of Chief Justice of India as its Chairman and 4 senior most Judges of the Supreme Court and Union Minister for Law and Justice and Attorney General of India as its members for the Supreme Court appointments and for exercise of disciplinary control over them. For High Court appointments and for its disciplinary control, it should also include three senior most Judges of the particular High Court including the Chief Justice of the High Court, State Law Minister and Advocate General as its members. It is also desirable that such a body has two representatives of the Parliament elected jointly on the basis of proportional representation by means of single transferable vote or the representatives of the Parliamentary Committee on Justice Affairs to ensure the participation of the legislature in appointments and disciplinary control. Constitution should be amended without delay for enabling the President to make appointments to the higher judiciary and also to take all kinds of disciplinary action against them except removal, on the basis of the recommendations of the Council. Council should be empowered to prescribe code of conduct for Judges and to enforce the same. Rules should be framed prescribing the procedure to be adopted by the Council for making it functional in all respect to act as the final decision making body in the matter of higher judicial appointments and for exercise of disciplinary control. The procedure to be followed by the Council for entertaining and dealing with citizens’ complaints should be transparent. Government should make available all potential information when required by the Council for its effective functioning. This method also reflects the vision of the Constitution makers who did not wish to give absolute power of Judicial appointments or control either to the executive or to the Judiciary. This suggestion is also more or less in tune with the views of the Law Commission of India as expressed in its 125th report of the year 1987, wherein the Law Commission has recommended for the National Judicial Service Commission consisting of Chief Justice of India as its President, his immediate predecessor, three senior most Judges of the Supreme Court, Union Minister of Law and Justice, Attorney General of India and an outstanding Jurist to be nominated by the President of India to act as the final decision making body in respect of Judicial appointments and control. 

Consumer Rights under The Telecom Regulatory Authority of India Act, 1997

and Redressal of Consumer Grievances

T.P. Kelu Nambiar, Sr. Advocate

The topic of discussion, namely, ‘Consumer Rights under the Telecom Regulatory Authority of India Act and Redressal of Consumer Grievances’, is of momentous importance. The topic should inspire both the scholar and the laity alike.

Though an elder statesman of the legal profession and an ‘Adhivakta’ (Senior Advocate), I am not a E-lawyer; but only a lawyer. I am not a lawyer at ease with the teletext. Therefore, I feel diffident to be the man in the middle in this Seminar. This occasion would require an all-in-one lawyer.

There was a time when it was thought that telephone is the most basic of communication tools. But this was this day that age. These are days of white-board. The blackboard and the chalk are being replaced by the ‘interactive whiteboard’ a touch screen.

The march of man born with ignorance, in recent times, is beyond our comprehension. In those days, one used to look at the sky either for light or for water. In these days, you look at the Space for every important thing in day-to-day life. It is said that the United States has 413 Satellites in the space; the number is more than the 382 the rest of the world has spinning above the earth. We learn lessons from the sky. More things happen above, than on the 501,300,000 (fifty crores thirteen lakhs) square kilometres of earth. We learn the truth of the statement that men are from Mars, and women are from Venus.

Star-war age has yielded place to ‘big ticket’ channel war and dot war. Sustained efforts have produced great achievements. Wherever you go, be it the Heavens, Earth, or Hades, you find the effects of telecommunication revolution, which is the result of tireless energy, great vision, mission and aim, and unquenchable enthusiasm, casting away Hamletian dilemma, and foregoing the time for one’s forty winks. Even the angry red planet is controlled. Everywhere you see energy in action. We are in a glorious present, expecting an exciting future. It looks as though the creator is being eclipsed by his creation. Everybody yearns to set up shop at the summit. What a wonderful journey and existence of one who entered this world with clenched fists and leaves it with open palms, empty handed.

I should not take time to elaborate the obvious, namely the statutory provisions of the TRAI Act, 1997, the TRAI (Amendment) Act 2000 and the rules and regulations made thereunder, or of the Cable Television Networks (Regulation) Act, 1995. TRAI Act is an Act to provide for the establishment of the Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to provide and ensure orderly growth of the telecom sector and for matters connected therewith or incidental thereto.

What I gather from the establishment of the Telecom Disputes Settlement and Appellate Tribunal, (TDSAT), is that licensors, licensees, service providers, consumers, telecommunication service, are all safe in the hands of the Tribunal. It is a unique authority, exercising original and appellate powers, with very wide powers, limited only by the very limited appellate power of the Supreme Court, to interfere only on a substantial question of law.

The decision of the Supreme Court, in Cellular Operators Association of India ( (2003) 3 SCC 186), is the great charter of powers of TDSAT. The very wide and extensive power conceded to the Tribunal, makes me believe that this Tribunal is the most powerful Tribunal in the whole of the country. Certain very strong, conceding, observations are noteworthy:

“......it must be held that the power of the Appellate Tribunal is quite wide, as has been indicated in the statute itself and the decisions of the Supreme Court dealing with the power of a court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the Appellate Tribunal under the Act. Since the Tribunal is the original authority to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since the Tribunal has to hear and dispose of appeals against the directions, decisions or order of TRAI, it is difficult to import the self-contained restrictions and limitations of a court under the judge-made law....... The Tribunal has much wider jurisdiction than the jurisdiction of the Supreme Court under S. 18, as the Supreme Court would be entitled to interfere only on a substantial question of law....., not otherwise.....TDSAT’s jurisdiction is not akin to a court issuing a writ of certiorari. The Tribunal although is not a court, it has all the trappings of a court. Its functions are judicial....... Succinctly stated, the jurisdiction of the Tribunal is not circumscribed in any manner whatsoever”. What a wide, rich bestowal. One does not need to be a rocket scientist to figure out the importance of the power conferred. But, power, to its last particle, is duty, said John Watson Foster. Benjamin Disraeli would consider all power a trust. Power flows to the man who knows how. Let me conclude with Pascal: “Justice without power is inefficient”.

More things, I shall wait to hear and learn from your panel discussion, as, as a lawyer, I am not proficient in internet penetration, online world or e-commerce, or podecasting.

 I remain thankful to the organisers of this Seminar, especially to Sri. Justice N.Santosh Hegde, who is entitled to honourable mention, for this rare opportunity of addressing this quality E-gathering.

Gracias (Thank you).

Section 26 of Kerala Buildings (L & R.C.) Act -- Good or Bad?

(By T.M. Rajasekharan, Advocate, Calicut)

The learned author Shri Muhammad, Advocate, has strongly canvassed for a review of decision regarding interpretation of exemption of Wakf property under Section 26 of Kerala Buildings (Lease and Rent Control) Act (2006 (3) KLT Journal 1). I would not like to touch upon the controversy. 

However in his lengthy Article Shri Muhammed has made the following observations to strengthen his contentions : "As per G.O. (M.S.) 14/92 dated 7.3.1992 (S.R.O. No. 435/92) the Government of Kerala exempted in public interest buildings of all churches/mosques of all minority religious from the provisions of Ss. 4, 5, 7, 8, 11 and 13 of Kerala Buildings (Lease and Rent Control) Act, 1965. The Government of Kerala also exempted in public interest buildings owned by temples, devaswoms etc. by separate notifications. The object and purpose of these Notifications are clear enough. The exemption Notifications aims to give freedom to Wakf and other religious institutions to evict tenants who are not prepared to pay the market rent. In the absence of such a provision, these institutions will suffer loss and the tenants will harvest undue benefit by giving nominal rent under the umbrella of Rent Control legislation."

If the purpose of providing exemption u/S.26 is to have freedom to collect rent at "market rate" and to prevent tenants from harvesting undue benefits "by giving (paying?) nominal rent", the legislative intention is meaningless as well as discriminatory. Are not the private owners of property entitled to rent at "market rate" or should they suffer by getting what Shri Mohammed calls "nominal rent"? The State is not supposed to create such disparity between private owners on one hand and the religious institutions on the other. One should not forget that there are scores of buildings owned by public and charitable institutions unconnected with religions. A dispassionate view would be to have a good legislation wherein proper rent is fixed for all buildings regardless to the nature of ownership and provide reasonable and adequate protection to all tenants.

It would not to be too much to suggest that exemptions given to Wakfs, Mosques, Churches, Temples, Mutts etc. are only aimed at appeasing religious fanaticism. A secular State should be above religion and it has no business to divide public on the basis of religion and caste. If the purpose of Act 2 of 1965 is to be achieved in its entirety, such exemptions could be seen as retardation.

The exemptions u/S.26 also add fuel to market inbalances. One who takes a building from Temple, Wakf or Church, sets up a business and starts making a reasonable earning by hard work, is asked to quit, at the whims and fancies of the owners, under the cover of the exemption. This is a cruel joke on the entrepreneurship and blow to market stability, which are essential for the growth of the nation. Pity it is that the Act does not define "market rate of rent" or even "fair rent". I would suggest that "fair rent" should be defined as "the contract rent or the rent assessed by local authorities which ever is higher". In all proceedings under the Act 2 of 1965, the authorities (Rent Controller or Accommodation Controller) shall fix the fair rent before proceeding any further. Such Legislative changes would be a boom to all building owners and exemption u/S.26 can be given away with. The grievance Shri Mohammed airs regarding "market rate of rent" can also be remedied.