t]meokv sImebv¡v I¿Sn F´psImIv?
By P. Biju, Advocate, Nedumangad, Thiruvananthapuram
15/01/2020t]meokv sImebv¡v I¿Sn F´psImIv ?
(]n. _nPp, AUzt¡äv s\Spa§mSv, Xncph\´]pcw)
ssl{Zm_mZn Hcp s]¬Ip«nsb _emÕwKw sNbvXp sImes¸Sp¯nb {]XnIÄ t]meokpambpImb Gäpap«en sImÃs¸« hmÀ¯bv¡v ]cs¡ I¿Sn e`n¡pIbmWv. t]meokv ]dbp¶ Gäpap«Â bmYmÀ°yamtWm F¶pt]mepw kwibn¡p¶hcpIv. Gäpap«Â bmYmÀ°yasænepw thInÃ, {]XnIsf sIm¶XmWv icn F¶XmWv s]mXphn A`n{]mbw. F´psImIv C§s\bpÅ icnIÄ DImIp¶p?
Hcp km[mcW¡mc\mb a\pjy³ kvt\lw, tIm]w, BÀ{ZX, k¦Sw, kt´mjw, {]XnImcw apXemb hnImc§Äs¡Ãmw ASnabmWv. kzm`mhnIambpw sImÃs¸« s]¬Ip«ntbmSv Ct¸mÄ FÃmhÀ¡pw BÀ{ZXbpw ZpxJhpamWv. {]XnItfmSv tIm]hpw, {]XnImchpw. B ZpxJhpw {]XnImchpw a\Ên \n¶pw ambpwap¼pXs¶ Ipä¡mÀ in£n¡s¸«XmWv shSnhbv]v icnsb¶v FÃmhcpw ]dbm³ ImcWw. adn¨v asäÃm s]¬Ip«nItfbpw ad¶Xpt]mse Cu s]¬Ip«nsbbpw ad¶ tijamWv Ipä¡mÀ¡v shSntbäsX¦n C{Xbpw kwXr]vXn ]eÀ¡pw DImIpambncp¶nÃ.
t]meokv kn\nam ssienbn {]XnIsf shSnh¨n«XÃ, adn¨v DS\Sn AXv sNbvXXmWv FÃmhscbpw kt´mjn¸n¨Xv. C¯cw IpähmfnIÄ¡v h[in£ \nba¯n hyhØ sN¿p¶pIv.]t£ tImSXnbn sXfnshSp¯v hnNmcW sN¿msX t]meokv h[in£ \S¸nem¡nbXv icnbmbnà F¶ Hcp ]£hpapIv. F´mbmepw kmam\yP\¯n\v t]meokv \S]Sn icnbpw adp]£¯n\v sXäpamIp¶p.
km[mcWbmbn t]meokv \S¯p¶ At\zjW¯n\nsS {]XnIÄ Ipäk½Xw \S¯mdpIv. Ah am[ya§fneqsS FÃmhcpw AdnbpIbpw sN¿pw. F¶m ]n¶oSv A¯cw tIÊpIfnse {]XnIsf aXnbmb sXfnhnà F¶p ]dªv tImSXn shdpsX hnSmdpIv. CXv \oXn\ymb kwhn[m\s¯¸än P\§fn kwibw P\n¸n¡p¶pIv. F¶m At\zjW thfbn {]XnIÄ \S¯p¶ Ipäk½Xw tImSXn sXfnhmbn kzoIcn¡m³ ]mSnà F¶pw aäp sXfnhpIÄ \nc¯n thWw tImSXnbn Ipäw sXfnbnt¡IsX¶papÅ \nba¯nse hyhØ km[mcW P\¯n\v AdnbnÃ.AXpsImIvXs¶ Ipäw k½Xn¨ {]Xnsbt¸mepw sXfnhnsâ A`mhw ]dªv tImSXn shdpsX hnSp¶p F¶ tXm¶Â P\§Ä¡pImIp¶p. At¸mÄ AXns\m¶pw Im¯p\n¡msX t]meokvXs¶ {]XnIsf h[n¨t¸mÄ kmam\yP\w I¿SntbmsS hcthäp.
tImSXn in£n¨mÂXs¶ {]XnIÄ Pbnen kIehn[ kpJkuIcy§tfmsSbpw Ignbp¶pF¶ tXm¶Â BÄ¡mÀ¡pIv. AXn\pImcWw HuZmcy ImgvN¸mtSmsSbpÅ Pbn \nba§fpw Ah e`yam¡p¶Xn\pff cmjv{Sob kzm[o\hpwXs¶. Nne cmjv{Sob sIme]mXI tIkpIfnse {]XnIÄ an¡t¸mgpw ]tcmfn Pbnen\v ]pd¯v Ignbp¶Xv kmam\yP\w ImWpIbmWv. At¸mÄ ]ns¶ tImSXn in£n¨mepw {]XnIÄ ]pd¯nd§n hnekp¶Xv km[mcW¡msc Bi¦s¸Sp¯p¶ H¶mWv. AXns\m¶pw CSsImSp¡msX {]XnIsf Ime]pcn¡b¨ kt´mj¯nemWv shSnhbv¸ns\ BfpIÄ kt´mjt¯msS hcth¡p¶Xv.
]e tIkpIfnepw in£n¡s¸«v PbnÂhmkw Ignªv Cd§p¶hÀ¡v kaql¯n Hcp Øm\hpw \jvSamIp¶nÃ. ]et¸mgpw XpSÀ¶pw Ipäw sNbvXpsImtIbncn¡p¶p. ]et¸mgpw AhÀ¡v cmjv{Sob¡mÀ¡nSbnepw aäp D¶XÀ¡nSbnepw Øm\w e`n¡p¶p. IpähmfnbpsS am\knI \nebnepImb amäw sImIà AhÀ¡v Cu kzoImcyX e`n¡p¶sX¶v P\w Bi¦tbmsS ImWp¶p. AhÀ XpSÀ¶pw IpähmfnbpsS a\tÊmsS X\n¡p NpäpapÅ kaql¯n hncmPn¡pw F¶v km[mcW¡mc³ `bs¸Sp¶p.
asäm¶v, tImSXn in£n¨v Pbnen Ignbp¶ {]XnIÄ¡v \ÂIn hcp¶ a\pjymhImi§Ä ]cn[n hnSp¶ptIm F¶XmWv. DsI¶p tXm¶p¶ Xc¯nemWv \mw ImWp¶ ]eXpw. {]XnIÄ ]n¶oSv a\pjymhImi [zwk\¯nsâ CcIfpsS Øm\s¯¯n B\pIqey§tfmtcm¶mbn AhImisa¶ \nebn ssI¸äp¶Xv ImWp¶hÀ¡v kzm`mhnIambpw AXn ZpxJhpw, AklnjvWpXbpw Bi¦bpw AaÀjhpw Hs¡ DImIpw. ImcWw D¶Xamb am\pjnI aqey§fpw AhImi§fpw kwc£n¡s¸Sp¶Xv ImWp¶Xneà adn¨v IpähmfnIÄ FÃm AÀ°¯nepw in£n¡s¸Sp¶Xv ImWphm\mWv GhÀ¡pw Xmev]cyw. in£ F¶m AXmItI F¶mWv _lp`qcn]£hpw Nn´n¡p¶Xv.
km[mcW ]ucmÀ¡pÅ a\pjymhImi§sfÃmw AtX]Sn sImSpwIpähmfnIÄ¡pw \ÂtIIXptIm F¶ Imcyw IqSn C¯cpW¯n Nn´n¡Ww. F{X henb Ipä¯n\v in£n¡s¸«mepw Xsâ FÃm a\pjymhImi§fpw kwc£n¡s¸Spsa¶ tXm¶Â Ipähmfn¡pImbm ]ns¶ Ah³ F´n\v Pbnens\ t]Sn¡Ww. ho«nse InS¸d am{Xw amdn Pbnente¡mbm F´p a\wamäamWv Ipähmfn¡pImIpI.
ssl{Zm_mZv _emÕwK¯n\v kam\amb Ipäw sNbvXv in£n¡s¸«v Pbnen Ignbp¶ tKmhnµNman A\p`hn¡p¶ kpJkuIcy§Ä kmam\yP\s¯ AkzØcm¡p¶Iv. AXn\mÂXs¶ ssl{Zm_mZv tIknse {]XnIfpw `mhnbn AsXÃmw t\Sn Pohn¡p¶Xv ImtWInhcp¶Xnepw t`Zw Ct¸mÄXs¶ AhÀ sImÃs¸«p IIXmWv \ÃsX¶v P\w IcpXn. {]Xn\mbIs\ XÃn Pbn¡p¶ \mbIsâ Øm\¯v AhÀ t]meokns\ IIp. CcpssI¿pw \o«nbSn¨p. a[pcw hnf¼n. \nba]cambn t]meokv sNbvXXnse sXäpw icnbpw Bcpw Imcyam¡nbnÃ. ImcWw aäp Ipä§fn \n¶pw hfsc henb hyXymkapIv _emÕwK¯n\v.
HcmÄ asämcmsf ASn¡p¶Xnt\m sImes¸Sp¯p¶Xnt\m hkvXp¡Ä \in¸n¡p¶Xnt\m aäp IpäIrXy§Ä sN¿p¶Xnt\m Hs¡ {]Xn¡pw DImIpw ]dbm³ \ymboIcW§Ä. t\cs¯ ]dªXpt]msebpÅ tIm]tam {]XnImctam Hs¡bpImIpw AXnsâ ]n¶nÂ. ]t£ Hcp s]¬Ip«nsb cm{Xnbn hgnh¡n _emÕwKw sN¿pIbpw ]ns¶ sImÃpIbpw sN¿p¶Xn\v ]n¶n tIm]tam, {]XnImctam H¶paÃ. Imaw F¶ hnImcw am{XamWv ImWp¶htcmsSÃmw _ew {]tbmKn¨v {]ISn¸n¡m\pÅXà Imaw. C¯c¯n ImakwXr]vXn hcp¯p¶Xv ImS¯amWv. arKobhpw. AXv Hcp kv{Xobnepw kaql¯n H¶mbpw GÂ]n¡p¶ apdnhnsâ Bgw hfsc hepXmWv. AXpsImIpXs¶ C¯cw IpähmfnIfpsSsb¦nepw a\pjymhImi§Ä ewLn¡s¸Sp¶Xn thhemXns¸Sp¶nà kmam\yP\w. F´mbmepw C¯c¯n t]meokv sImeIÄ \S¯p¶Xv ASnØm\ \nba§Ä¡v FXncmsW¶Xn kwibanÃ. F¶mepw [mÀ½nIamb Hcp icn AXn AS§nbncn¡p¶p F¶p P\w IcpXp¶p. AXv sNbvX t]meokv \mbI Øm\t¯¡v DbÀ¯s¸SpIbpw sN¿p¶p.
ssl{Z_mZv tIkn {]XnIfmbhÀ Ipäw sNbvXpsh¶v At\zjWw \S¯n IsI¯pI t]mepw sN¿pwap¼v \S¯nb shSnhbv]v hfsc t\cs¯bmbnt¸mbn F¶ A`n{]mbhpw DImbn«Iv. F¶ncp¶mepw shSnsh¨Xv icnsb¶v kmam\y P\w hn[nsbgpXn. C\nbt§m«v sXep¦m\bnse¦nepw _emÕwK§Ä Ipdªm XoÀ¨bmbpw Ct¸mÄ \S¶ t]meokvsIme \rmboIcn¡s¸SpIXs¶ sN¿pw `mhnbnÂ. AXà _emÕwK§Ä XpSÀ¶m shSnhbv¸S¡w t]meoknsâ `mKw hnaÀin¡s¸SpIbpw sN¿pw.
F´mbmepw Hfnªpw sXfnªpw t]meokns\ Ipäs¸Sp¯p¶ A`n{]mb§Ä hcp¶psI¦nepwA{X {]ISambn«nÃ. F¶m AXv sImSp¦män\p ap¼pÅ im´Xbmbn am{Xta ImWm³ Ignbq. t]meokns\ ]gnNmcn a\pjymhImi kwLS\Ifpw aäpw DS\Snsb¯pw \ymbhmZ§Ä \nc¯ns¡mIv. Ahsc t\cnSm³ acn¨ s]¬Ip«ntbmSpÅ BÀ{ZXbpw, a\pjyXzhpw AXpt]mse {]XnItfmSpÅ AaÀjhpw H¶pw aXnbmInà adp]£¯n\v. AXn\hÀ \¶mbn hnbÀs¸mgpt¡In hcpw.
No Brick Bats Even If No Boquets
By K. Ramakumar, Sr. Advocate, High Court of Kerala
04/01/2020No Brick Bats Even If No Boquets
(By K.Ramakumar, Sr.Advocate, High Court of Kerala)
Acceptance of judgeship by successful and eminent legal practitioners was considered a call of duty in the past. Many leading practitioners had forsaken their lucrative practice for service in the judiciary, which then meant service to the public. At that time there was no canvassing and the choice invariably fell only on the meritorious.
Times have changed. A system not even contemplated under the Constitution of India has emerged, which however, has received flak from all concerned. Sri Justice Chelameswar had made the following observations about the system calling itself Collegium.
“The process by which a judge is appointed to a superior court is one of the best kept secrets in the country. The very secrecy of the process leads to an inadequate input to information as to the abilities and suitability of a possible candidate for appointment as a judge. A chance remark, a rumour or even third-hand information may be sufficient to damn a judge’s prospects. Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”
Sri Justice Kurian Joseph adds:
“The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution… To me, it is a curable situation yet.”
Recently Sri Justice Chandrachud in Central Public Information Officer v. Subash Chandra Agarwalobserved as follows:
“The Collegium system has come under immense criticism for its lack of transparency. As early as in S.P.Gupta, this Court acknowledged that disclosure would lead to bona fide consideration and deliberation and proper application of mind on the part of the judges.”
On transparency in judicial appointment Sri Justice Chandrachud quoted Sri Lorne Sossin in the following manner:-
“What matters most in a democracy, I would suggest, is not the precise criteria for merit but the transparency of the criteria, and the authenticity of the reasons for choosing one individual over another. Merit, in other words, is as much about process as substance.”
Accountability therefore in judicial appointments has been rightly emphasized as the need of the hour. What is now happening? Members of a profession, which is the only one finding a place of honour in the Constitution of India, opt for the harsh life of a Judge. They however, are not only not recognised with honour but rebuffed with dishonour. The new method of working of the Collegium has led to humiliating some of the lawyers recommended for appointment by declaring them unfit and ineligible after making them wait for a long period. Even the integrity of some of them, has been questioned by superior bodies situate in New Delhi. Frustrated some of them have withdrawn their consent. For instance Sri Shriram Panchu, an eminent lawyer from Madras High Court was understood to be one among them. He was one of the persons chosen by the Supreme Court as a mediator in the Ayodhya Case. In similar many prominent Lawyers in Bombay, Patna and other High Courts have withdrawn their consent. A lady Lawyer of eminence has also done so. The fact that it has not happened in Kerala or not likely to happen due to institutional deference, is not a reason to demoralise or discomfit dignified and decent practitioners, whose integrity is unquestionable.
Plum positions of power and prestige cannot be permitted to be cornered by the Corporates and the clout commanding upper crest of the society alone. They also belong to the hitherto un-equals to enable them to limp back to equality. Cry for social justice consistent with the magnificent preamble of our Constitution cannot be criticised as communal.
What do all these indicate? The system needs thorough revamping. It should not result in dispiriting legal practitioners who have opted for judgeship, which is a question of personal preference. Even if they are not inducted, at least the indignity meted out to them along with the disgusting uncertainty may be avoided.
Let us remind ourselves of the wise words of Dr.B.R. Ambedkar:-
“however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.”
Not A Catch-All Jurisdiction
By K. Ramakumar, Sr. Advocate, High Court of Kerala
16/12/2019Not A Catch-All Jurisdiction
(By K.Ramakumar, Sr. Advocate, High Court of Kerala)
“If I was asked to name any particular Article in the Constitution as most important . . . . . . . an Article without which the Constitution would be nullity – I could not refer, to any other Article except this one. It is the very soul of the Constitution and the very heart of it” – Dr. Ambedkar.
Article 32 of the Constitution is itself a fundamental right granting to all citizens the right to move the Supreme Court for the enforcement of the rights conferred by Part III of the Constitution of India. The Article has been interpreted by the Apex Court clearly laying down that only violation of fundamental rights can be enforced under Article 32. Issues not involving fundamental right, the Supreme Court said “cannot be determined by it”. (See Indian Express Newspapers v. Union of India (1985 KLT OnLine 1205 (SC) = (1986) 1 SCC 633).
However what is happening now? For every grievance whether political, personal or both the Supreme Court is directly approached contrary to its own pronouncement earlier that unless initially the High Courts are moved the Supreme Court cannot be burdened with petitions under Article 32. This also because the power of the High Courts under Article 226 is wider than that of the Supreme Court under Article 32. This is what the Supreme Court said in Kumar v. Municipal Corporation of Delhi (1988 (1) KLT 124 (SC) = (1987) 4 SCC 609.
“The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution. The relief prayed for in the petition is one which may be granted by the High Court and any of the parties who is dissatisfied with the judgment of the High Court can approach this Court by way of an appeal. The fact that some case involving the very same point of law is pending in this Court is no ground to entertain a petition directly by-passing the High Court. If the parties get relief at the High Court, they need not come here and to that extent the burden on this court is reduced.”
In fact the Supreme Court declared the contours of its own jurisdiction in Kanubhai Brahmbhatt v. State of Gujarat (1987 (1) KLT OnLine 1020 (SC) =AIR 1987 SC 1159) cautioning
the entire country in the following words.
“If this Court takes upon itself to do everything which even the High Courts can do, this Court will not be able to do what this Court alone can do under Article 136 of the Constitution, and other provisions conferring exclusive jurisdiction of this Court. There is no reason to assume that the concerned High Court will not do justice. Or that this Court alone can do justice. If this Court entertains Writ Petition at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of Writ Petitions would in course of time be instituted in this Court directly. The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions. As it is, more than ten years old Civil Appeals and Criminal Appeals are sobbing for attention. It will occasion great misery and immense hardship to tens of thousands of litigants if the seriousness of this aspect is not sufficiently realized. And this is no imaginary phobia. A dismissed government servant has to wait for nearly ten years forredress in this Court. Kashinath Dikshita v. Union of India (1986) 3 SCC 229: (AIR 1986 SC 2118).
A litigant whose appeal has been dismissed by wrongly refusing to condone delay has to wait for 14 years before his wrong is righted by this Court.Shankarrao v. Chandrasenkunwar, (Civil Appeal No. 1335(N) of 1973 decided on January 29, 1987. The time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego or raising of some eyebrows. Again, it is as important to do justice at this level as to inspire confidence in the litigants that justice will be meted out to them at the High Court level and other levels. Faith must be inspired in the hierarchy of Courts and the institution as a whole. Not only in this Court alone. And this objective can be achieved only by this Court showing trust in the High Court by directing the litigants to approach the High Court in the first instances. Besides, as a matter of fact, if matters like the present one are instituted in the High Court, there is likelihood of the same being disposed of much more quickly, and equally effectively, on account of the decentralisation of the process of administering justice.”
These principles hold good even now and to my humble knowledge have not been departed from in any subsequent decisions. Yet the Supreme Court is approached not only by influential political parties but affluent businessmen as Sri Ratan Tata did in the Neera Radia Tape case who obtained a stay of disclosure of its contents by purportedly moving under Article 32 of the Constitution. Which one of his fundamental rights is infringed by disclosure which should have shook the entire corporate world if the contents are true? The business tycoon could have easily moved one of the finest High Courts in India within walking distance of his cosy Chairman’s Cabin in the Bombay house. By resort to Article 32 the right to information, which is now considered valuable and great to the people of India was effectively shut out by a very prominent businessman, unfortunately with the assistance of the highest court of the country. So are the instances of moving immediately the Supreme Court in relation to proving majority in Legislative Assemblies, etc, none of which to the best of my limited legal knowledge involves any violation of fundamental rights. The right to vote, the right to stand for elections, the right to get elected are only statutory rights as declared explicitly by the Supreme Court in number of cases. No elected member can be heard to say that the assembly shall meet at a particular date or the Speaker shall fix a date for trust vote in a particular manner that secret ballot should be evolved etc, particularly by moving the Supreme Court under Article 32 of the Constitution. Article 32 cannot be invoked to make Articles 105 and 194 dead letters. Still surprisingly none of the parties including the answering respondents, do not appear to have raised seriously any preliminary objection regarding the maintainability of such petitions. It was for the first time that in the Maharashtra case objection was raised that a petition under Article 32 is not maintainable.
Direct approach by litigants who command clout in the corridors of power to the Supreme Court will definitely send a wrong message. What is not available to a common citizen cannot be a bonanza to rich and affluent people who are put up in Five Star Resorts, presumably at the huge expense of big corporates who have stakes in getting an administration of their choice. This is indeed a blow to the Indian democracy which in spite of debilities suffered on account of the assault by unscrupulous politicians is deep rooted and embedded in our system.
Wily politicians shall not be permitted to misuse the machinery of Courts for their own selfish interests. No open sesame to Article 32.Please go to the High Court first and then on to the Apex Court.
Lambasting Judges by Name – The Supreme Slur and Its Aftermath
By Rajith, Advocate, High Court
16/12/2019Lambasting Judges by Name – The Supreme Slur and Its Aftermath
(By Rajit, Advocate,High Court of Kerala)
If arguing a matter in the manner and style of the advocate, warrants proceedings under the Contempt of Courts Act and also a conviction without following due process, then I am sure none of the lawyers can escape the tag of being in contempt. This strikes at the very root of advocacy. Stretching it a bit further, an advocate needs just to draft and file the case and remaining is for the Court to read and decide. I am afraid we are going way beyond the fundamentals. This needs to be checked.
There is a very disturbing trend evident more visibly in the recent times, where dispensation of justice is carried out with a sense of fear. The fear of being named in the Supreme Court. Every order passed is with fear and every order which ought to be passed is refused to be passed for the fear of having your name called out and published in the media.
Is this how the highest Court in this State must function? Before trying to understand the effect of this syndrome, it is necessary to refer to certain constitutional provisions:-
Article 121 :- No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided .
Article 124. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
………..
…………….
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under
clause (4).
(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
The oath in the Third Schedule reads as follows:-
VIIIForm of oath or affirmation to be made by the Judges of a High Court:—“I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) .........., do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established,2[that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my officewithout fear or favour,affection or ill-will and that I will uphold the Constitution and the laws.” (emphasis supplied)
Has not the fear syndrome breached the oath undertaken by the Judges of our High Court. It is a common refrain from many of the Judges that, Do you want our names called out by the Supreme Court? That is why this Frankenstein Monster has to be overcome and overcome with might at the earliest. Silence or allowing this to grow will only create a situation where the common man will lose faith in the institution of the High Court and then be left with no other option but to move the Supreme Court in all matters.
The orders of the Supreme Court are not beyond interpretation. It is only by such process, the legal system sustains a healthy growth. The utterances of the Supreme Court, in the heat of a moment, and very unfortunately reported and highlighted by the media must be discarded with the disdain it deserves.
The Constitutional provisions referred to above provide sufficient protection to the Judges of the High Court. Then why the fear? I can understand the fear of moving up the ladder or being denied the legitimate right of ascendancy. But when the right of ascendancy only affects a few, why must there be this general fear, by all? Justice Madan B.Lokur, in a recent article, after his retirement, has called upon the Judges to show some backbone and spine, particularly in dealing with the issue of personal liberty.
The utterances by individuals, who are occupying the exalted position for a temporary period, does not and should not reflect on the institution. A courteous Judge will always command respect and affection of the lawyers, long after his retirement, which is inevitable. A Judge has a retirement age and a lawyer, well he will be there for a considerably long time. A bold and fearless Judge called Hans Raj Khanna is still remembered, whereas the name of the Chief Justice, who superseded him, has to be memorized and is unfortunately known only for having superseded Justice H.R.Khanna. There is a choice to be made and I rest my case.
By Lina Acca Mathew, Asst. Professor of Law, Government Law College, Ernakulam
16/12/2019
Information Technology Security in Data Governance --
A View from the Lens of Corporate Governance
(By Dr.Lina Acca Mathew, Asst.Professor, Government Law College, Ernakulam)
Introduction
Today India is in the midst of an information technology revolution. The Digital India Programme launched by the Indian Government is aimed at transforming the country into a digitally empowered society. The Smart Cities Mission is aimed at developing 100 smart cities in India. Ensuring the security of this digital ecosystem is a challenge. As evidenced in the multiple Aadhar data leaks, cyber attacks happen galore in the areas of privacy invasion, breach of cloud security, breach of e-commerce data, cyber warfare and exploitation of vulnerabilities in Operational Technology (OT) and the Internet of Things (IoT) systems. The Mirai Botnet attack, hackable cardiac devices from St.Jude Medical Hospital, and the Owlet WiFi baby heart monitor hack all signify the increase of such cyber-attacks with increased usage of IoT devices. It is necessary for both public and private business enterprises to secure themselves to defend against this new form of warfare. Without a clear cyber security program, an enterprise’s operations, reputation, financial condition and very existence can be substantially endangered.
A Report of the Uday Kotak Committee constituted by SEBI, released in October 2017, recommended several sweeping changes to be made with regard to corporate governance of listed companies in India such as board size and diversity, enhanced disclosure requirements, and investor protection improvement measures. The Committee recognized cyber security as a key priority in safeguarding rights of shareholders, for which the scope and periodicity of core board committees such as Audit, Risk, and Technology needs to be enhanced. It recommended that the role of a listed entity’s Risk Management Committee be legally mandated to include cyber security concerns. The Top 500 listed entities are duty-bound to constitute such Risk Management Committees. In addition, these listed entities ought to constitute Information Technology Committees to focus on digital and technology aspects in conjunction with the Risk Management Committee. Thereafter, on 9 May 2018, SEBI made suitable amendments to the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. Although the Kotak Committee’s recommendations regarding the constitution of an Information Technology Committee were not accepted by SEBI, it can be seen as a wake-up call for the management to address cyber-security issues in operational risk profiles. The Companies Act 2013 envisages mechanisms to hold management liable for cyber security-linked breaches in companies, through spelling out fiduciary duties of directors and through class actions1. Yet, there is need to go beyond data security and privacy issues to ensure that the handling of data within the organization and beyond it is done in a fair and ethical manner. Clearly defined principles and practiceswhich are clearly communicated can produce honest and appropriate behaviors, which will help to preserve consumer trust in the long run. Such an ethics-driven approach to Data Governance would encourage the appropriate use of the technology that generates, analyses and propagates data in accordance with data protection laws.2
Terminologies: Nature and Scope
Information Technology security involves, defining, achieving and maintaining confidentiality, integrity, availability, non-repudiation, accountability, authenticity and reliability (ISO GMITS technical report).3 It is necessary for every organization to adopt a systematic approach in order to identify requirements for such security within it, implement these security measures and administer security compliance measures, called the process of management of Information Technology security. It is the Governing Board of every company that is responsible for ensuring the establishment and maintenance of a sound system of internal controls.4 Hence the Governing Board must take the overall responsibility for ensuring protection of the confidentiality, integrity and the availability of data in the business enterprise, and is accountable for loss, damage or theft of any such information. This makes it necessary that information security compliance documents be included in the corporate governance documents of the organization.
The internal controls for ensuring confidentiality, integrity and availability of information can be enforced through guidelines and baseline controls. Adequate orientation and training must be given in order for good governance of information security. Skilling and re-skilling measures are needed to create professionals to meet the growing demand. It is the Chief Information Security Officer (CISO) or Chief Security Officer (CSO) who plays a pivotal role in ensuring the cyber security of an organization. Such person must be a senior business manager who also has expertise in risk management and corporate governance.
The following are considered to be the core pillars of information security:
1. Confidentiality , which only allows access to data for which the user is permitted
2. Integrity, which ensures that data is not tampered or altered by unauthorized users
3. Availability, which ensures that systems and data are available to authorized users when they need it.
Many ‘security by design principles’ are identified as beneficial when integrating security aspects into a system, like the Least Privilege Design Principle granting minimum user access rights to specific information and tools- like time based limits - for preventing potential damaging attacks from users, the Fail-Safe Defaults Design Principle allowing access to resources only if explicit access is granted to a user, the Economy of Mechanism Design Principle requiring systems to be designed as simple and small as possible; the Complete Mediation Design Principle requiring every access to every resource to be validated for authorization, the Open Design Principle requiring the non-dependence of the security of a system and its algorithms upon the secrecy of its design or implementation, the Separation Privilege Design Principle requiring all resource approved resource access attempts be granted based on more than a single condition, as when a user should be validated for active status and has access to the specific resource, the Least Common Mechanism Design Principle requiring non-sharing of mechanisms used to access resources, the Psychological Acceptability Design Principle requiring security mechanisms not to make resources more difficult to access than if the security mechanisms were not present, and the Defence in Depth Design Principle, whereby the layering of resource access authorization verification in a system is inculcated so that unauthorized users would need to circumvent each authorization attempt in order to gain access to a resource. Until now, the accepted legal framework for the Indian technology sector is the Information Technology Act, 2000. While it provides for norms for data collection and its usage, it doesn’t elaborate guidelines for data storage techniques, user consent as well as norms for data processing. Hence the Personal Data Protection Bill 2018, tabled for the winter session of Parliament, 2019, is of greatest importance. As per the recommendation of the Srikrishna Committee (2018), companies which process huge amounts of data may have to register themselves as significant data fiduciaries under the Data Protection Authority. This will increase compliance costs, including periodic company audits and the need for skilled privacy professionals and data protection specialists who are equipped to handle compliance requirements coming from various privacy regulations around the world.
Problems faced in organizations due to cyber security breaches:
The recent cyber security breach of the Kudankulam Nuclear Power Plant did not gain access to the Nuclear Power Plant Control System located in an air gap but gained access to the plant’s administrative network. This is a serious issue, as there are demonstrated novel ways to jump the air gap. A malware called DTrack is the culprit, and also aims at infiltrating banks, ATM machines and research centers.5 Whatsapp recently disclosed that that a cyber attack by the Pegasus spyware had attacked 1400 devices across twenty countries spanning four continents. This spyware can record any conversation made in nearby areas through the microphone or camera. It tracks live GPS location and keeps a log of any text message or email sent, records calls, passwords, contacts and biometric
information. It can access records from cloud-based accounts and can even bypass two-factor authentication mechanisms6. These incidents highlight the need for a robust cyber security governance system in all business organizations.
Organizations have been unable to promptly identify breach of security protocols in the absence of appropriate security controls. Breach of cyber security protocols in companies may result in compromise of employee records and customer records, and loss or damage of internal records. Intellectual property losses are rampant, like loss of strategic business plans, deal –related information and sensitive financial information, not to mention damage to reputation, goodwill and brand image. Prevention and detection methods have been found useless against most modern methods of cyber attacks, and many enterprises are inept in knowledge and resources to combat these highly skilled techno-criminals. Supervisory control and data acquisition (SCADA) systems and Industrial Control System (ICS) technologies are susceptible to attacks by such cyber criminals for the purposes of economic gain, espionage, disruption and destruction. Security incidents caused through embedded systems and operational technologies has increased considerably. Critical infrastructure asset owners have to employ methods to neutralize these attacks as well as engage in capacity-building in order to combat future attacks. Effective cyber security governance can prevent huge financial losses caused by loss of customers, legal defense services, court settlements, investigations, forensics and deployment of detection software, services and policies (PwC-DSCI, 2013).7
Suggested Solutions
Cyber security insurance schemes are one method to lessen the negative impact of cybercrimes on the financial health of companies. Such insurance coverage may extend to data destruction, denial of service attacks, theft and extortion, including incidence response and remediation, investigation and security- audit expenses, privacy notification, crisis and reputation management, forensic investigations, data restoration, business interruption etc. (PwC-DSCI,2013)
Cyber security is vulnerable to unauthorized access by insiders who already have authorized access, as well as former employees. Absence of proper background checks upon such employees, vendors and business partners is found to be the most common cause of such breaches. It is necessary to establish protocols for exit-related processes so that all accounts and access keys of the former employees are deactivated when they exit. Use of more advanced authentication technologies which do not require passwords- like biometrics, facial and voice recognition technologies is increasingly being employedby companies in order to manage access management, authentication and sensitization (PwC-DSCI, 2013).
Most Indian organizations have adopted a security framework like the ISO 27001 and the US National Institute of Standards and Technology (NIST) Cyber Security Framework. Other observed standards are PCI-DSS, BS-25999/ISO 2230. The benefits of such frameworks are increase in capacities to identify and prioritize security risks, quickly detect and mitigate security incidents, ensure greater security for sensitive data, understand security gaps better, improve internal communication and external collaboration, and to have greater capacity to compete across global markets. The use of data analytics, security event correlation, behavioral profiling, use of Virtual Desktop Interface (VDI) are being explored for better solutions (PwC-DSCI, 2013).
Corporate governance in cyber security needs to focus on third-party information security processes- which includes compliance of third parties with privacy policies of companies, compliance audit check for personally identifiable information (PII) and established security baselines/standards (PwC-DSCI,2013).
The Governing Board’s attitudes towards information security governance in a company is of utmost importance, with provision for funding of cyber security programmes, identification and communication of key risks, encouragement of organizational culture of cyber security, alignment of cyber security with overall risk management and business goals, regulatory compliance and risk disclosure, internal and external collaboration and communications as well as adequate security incident-response planning (PwC-DSCI,2013).
The Infosys (2019) report states that enterprises must be cognizant to the top cyber security trends like using artificial intelligence for real-time predictive/preventive cyber security instances, greater significance for privacy and data protection, use of blockchain technologies in developing security solutions for edge devices, deception technologies in IoT and OT to enable cyber security, emergence of new business models like cyber insurance, regulatory bodies showing zero tolerance on non compliance, move to the customization of security solutions from personal data protection and the gaining recognition of cyber security startups.8
Threat Intelligence Platforms are emerging as the method to support vulnerability management. SOAR (Security Orchestration, Automation and Response) is a solution stack of compatible software programs enabling collection of data about security threats from multiple sources and automated response to low-level security events without human intervention. The SOAR stack allows for increasing the efficiency of physical and digital security operations by using compatible products and services that help define, prioritize,
standardize and automate incident response functions through Threat And Vulnerability Management which provide formalized workflow, reporting and collaboration capabilities, Security Incident Response which support organisational strategies for planning, management, tracking and coordination of responses to security incidents, and Security Operations Automation which use technologies to support the automation and orchestration of workflows, processes, policy execution and reporting.
Conclusion
The world of information technology is always unstable and continually shifting. There will be a convergence of privacy, individual and corporate identity in the near future. Lack of integrated solutions and shortage of skilled workforce are challenges that each business organization faces. Means must be devised to ensure security at the earliest stages of a business lifecycle, and minimizing risks by embedding security-by-design principles. Hence it is necessary to have strong encryption policies intact. New solutions based on big data, cloud computing and heuristic approaches necessitate recruitment of professionals specialised in hardware cryptography design, lightweight and post quantum cryptographic primitives and implementation of cryptanalysis. Adoption of SOAR technologies would help to ensure security in linked platforms. A comprehensive cyber security programme for corporate governance is necessary, whereby the board and senior management are involved in increasing collaboration between technology partners, building a robust cyber security culture among the employees, and adopting modern solutions to prevent cyber security breaches.
Foot Notes:
1. Krishnakumar T. (2018) Cybersecurity now firmly a corporate governance concern 06.11.2018 https://tech.economictimes.indiatimesxom/news/corporate/cybersecurity-now-firmly-a-corporate-governance-concern/64543995
2.Deshpande D.(2019), Ethics in Data Management and Governance 05.17.2019 https://www.businesstoday.in/opinion/columns/data-management-governance-digital-data-ethical-data-organisations-data-misuse/story/347425.html
3.GMITS: Guidelines for the Management of IT Security, Part 1: Concepts and models for managing and planning IT security, ISO/IEC JTC1/SC27, PDTR 13335-1 (revision), version 28.11.2001.
4. Internal control systems of credit institutions, Banking Supervisory Sub-Committee of the EMI, July 1997, Working paper on Internal Control Systems, prepared by internal auditors of a group of central banks, BIS and EMI, June 1997, Internal control - integrated framework, Committee of Sponsoring Organisations of the Treadway Commission (COSO), September 1992.
5. Dasgupta B. and Ranjan Sen S. (2019). Cyber attack at Kudankulam; critical system safe. Hindustan Times Oct 30, 2019 00:42 1ST.
6. Shrestha, D.B., DH Web Desk (2019). Pegasus spyware: All you need to know.Deccan Herald. Nov 1, 2019 19:01PM 1ST.
7. PricewaterhouseCoopers,India-DataSecurityCouncil of India (2013). Leading industry practices in security and privacy, https://www.pwc.in/assets/pdfs/publications/2013/leading-industry-practices-in-security-and-privacy.pdf
8. Infosys (2019). Assuring Digital-Trust, https://www.infosvs.com/services/cvber-securitv/insights/assuring-cligital-trust.pdf.