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Circumspection, My Lords

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Supreme Court

kapil sibal

   Kapil Sibal

With the power of judicial review, the expanse of our Supreme Court’s jurisdiction is unmatched compared to other judicial forums around the world. The greater the power, the greater the responsibility in its exercise.

The Supreme Court has, over the years, created milestones in judicial pronouncements resulting in historic shifts, positively impacting the nation in its onward march for justice. The genesis of Public Interest Litigation in listening to the voice of the voiceless and giving access to the poor, the marginalised and the weak is a unique experiment to be lauded. It has also effectively, on occasion, dealt with the corroding effect of corruption.

But for the Supreme Court’s proactive role, it would have taken many more years for Compressed Natural Gas (CNG) to be the fuel of preference in the transportation sector. Dealing with bonded labour, neglected children, the non-payment of minimum wages to workers, violations of labour laws, sexual harassment at the work place, harassment while in police custody, are a few examples where the court has constructively intervened.

These are positives, which earned the institution kudos. But in some areas, the Supreme Court is ill-equipped to make judicial pronouncements. The recent decision invoking Article 142 of the Constitution of India, prohibiting the sale of liquor in establishments, restaurants, vends, etc., within 500 metres of national and state highways makes one question the role of the Supreme Court. Recognising the desire of the court to save lives lost due to drunken driving, such judicial diktats are not the outcome of a legal suit between parties. The location of hotels, restaurants or vends, selling liquor is a pure policy decision, best left to governments to take.

There is also a constitutional issue which arises. Should the Supreme Court, given the fact that the subject matter of liquor is within the exclusive domain of state legislatures, through judicial diktat, impose a decision on state governments? My objection is not limited to this constitutional issue. I am more concerned about the consequences of such judicial diktats.

The Supreme Court, when issuing this directive, was perhaps not fully equipped with all the facts. That the states could have moved the Supreme Court and informed it of the consequences of its decision is indeed proof that the decision was taken without being fully cognisant of the facts. That hotels would lose their five-star ranking is one such consequence. That millions associated with the liquor business would lose their jobs is another consequence.

That the state will lose a vital source of revenue, which would become part of the Consolidated Fund of the state for multifarious state programmes, is yet another consequence. Public interest is a very unruly horse.

If public interest becomes the raison-d’être of decision-making, then the contours of the constitutional concept of the separation of powers will be blurred. The judiciary might then be persuaded to deal with every ill that confronts this country.

While we applaud the judiciary in exhorting the government to listen to gender concerns, malnourished children and its role in asking the government to respond to the plight of farmers in Tamil Nadu, at the same time, we question the freewheeling use of Article 142 of the Constitution. On occasion, while exercising this power, personal liberty is at stake and the rule of law in jeopardy. Sometimes, the use of Article 142 has economic consequences that tend to destabilise the economy.

The cancellation of all telecom licenses to serve the cause of public interest without individual culpability jeopardised the survival of entities. Rising non-performing assets (NPAs) are, to some extent, the result of judicial decisions. Courts may not, or may choose not to, consider their impact on the economy. The telecom sector is, till today, reeling under the after-effects of the Supreme Court judgment. The consequences of cancellation of all allocations of coal mines have adversely impacted the balance-sheets of public sector banks. One of the consequences of such omnibus cancellations is defaults on bank loans. The consequent NPAs impact the economy.

The decision to ban the sale of diesel cars with an engine capacity of 2000 cc and above is yet another instance of judicial overreach. This, in fact, jeopardised possible foreign investment. The decision was later reviewed. In the long term, such decisions dampen the spirits of foreign investors.

We live in a very complex world in which the media is at the forefront of public discourse. Social media, yet another unruly horse, with its outreach, impacts the lives of millions. Populism is at its height. The contours of civilised discourse have vanished. Economic interests sometimes drive public discourse. News is occasionally motivated. For the court to be completely isolated from this environment is not easy. Most of us tend to be swayed by what we read. Judges are not superhuman. They, too, are mortals. This is why they have to be exceptionally careful in rendering decisions, which cause unintended consequences.

Several judgments of the court reiterate the principle that recourse to Article 142 of the Constitution is inappropriate, wherever a statutory remedy is available. This has not deterred the Supreme Court from taking the cover of Article 142 in its desire to do justice. The problem is that there is no court above the Supreme Court. Lawyers, who practise in the Supreme Court, day in and day out, are seldom willing to stand up and question this practice.

It is time to stand up and for judges to be more circumspect when taking decisions beyond the apparent contours of their jurisdiction.

(Kapil Sibal is a senior Congress leader and former Union Law Minister and a lawyer.)
 
(Article was first published in Indian Express, dated April 21)

India

Centre has 15 new rail projects for Northeast, says Modi

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Aizwal, Dec 16: Prime Minister Narendra Modi said on Saturday the Centre is committed to put all the state capitals of the northeast on the rail map and is executing 15 new projects in the region.

“We are committed to bring all the state capitals of the northeast region on the rail map. The government of India is executing 15 new rail line projects of 1,385 km length, at a cost of over Rs 47,000 crore,” Modi said during his visit to Mizoram.

“It is said that the lack of connectivity is one of the biggest hurdles in the path of development of the Northeastern region,” Modi noted, adding: “My government wants to do ‘transformation by transportation’ through investment in infrastructure…”

He said the Centre has been proactively following the ‘Act East Policy’. “As a gate-way to South East Asia, Mizoram stands to gain immensely from this. It can emerge as a key transit point for trade with Myanmar and Bangladesh,” said the Prime Minister.

The vision of New India can be realised only if fruits of development reach all, he said.

The Centre plans to focus on around 115 districts which are relatively backward when evaluated on various indicators. This will benefit backward districts of Northeastern states, including Mizoram, said Modi.

“In the spirit of “Sabka Saath Sabka Vikas” every Indian, irrespective of caste, gender, religion, class must have equal opportunities to partake in the new prosperity,” he added.

Modi was in Mizoram to inaugurate the 60 MW Tuirial Hydro Electric Power Project (HEPP). He dedicated the project to the people saying it will boost the socio-economic development of the state.

Tuirial Hydropower Project is the first major central government project to be successfully commissioned in Mizoram, Modi said, also adding that besides electricity the reservoir water will also open new avenues for navigation.

“This will provide connectivity to remote villages. The huge reservoir, spread over an area of 45 square km, can also be used for development of fisheries,” Modi said.

The Prime Minister said the project would boost eco-tourism and provide a source of assured drinking water supply.

He said the project was first cleared by the union government of former Prime Minister Atal Bihari Vajpayee, way back in 1998 but got delayed.

“The completion of this project is a reflection of our commitment to complete ongoing projects and usher in a new era of development in the Northeastern region,” Modi said.

The Prime Minister also said that during the tenure of Vajpayee, significant work was done for the development of the Northeast.

“We have taken forward this vision and are devoting resources for the progress of the Northeast. My ministerial colleagues are frequently visiting the Northeast,” Modi said.

“There have been over 150 ministerial visits. Our initiative – the Ministry of DoNER at your doorstep has added impetus to the development of the Northeast. It has enabled us to understand the aspirations of the Northeast even better,” he added.

Modi also said that he was delighted to be in Mizoram and this was his first visit as Prime Minister as he had visited the state before also.

“I admire the beauty and friendly nature of the people,” he said.

“The high literacy rate, scenic beauty and availability of large English-speaking population in Mizoram make for a perfect blend to develop the state as a model tourist destination,” said the Prime Minister.

IANS

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India

Delhi Gang Rape: Five years on, Nibharya’s mother hopes for justice

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Nirbhaya Mother

New Delhi, Dec 16: Five years since December 16, 2012 gang-rape case of Nirbhaya, the mother of victim Asha Devi Singh expressed hope for justice as the culprits are still alive.

“Even after 5 years, her culprits are alive. If justice isn’t served on time, people cease to be scared of law”, Nirbhaya’s mother said, news agency ANI quoted.

She stated, there is a need for the formulation of strong law, adding the mindset of everyone be it a politician or a common man, needs to be changed.

On this day, a 23-year-old physiotherapy student was gangraped by six men in a moving charter bus in the national capital which left everyone stunned. After thirteen days, the victim succumbed to her injuries in a Singapore hospital.

The shocking incident had triggered a nation-wide outrage over violence against women in the country.

The four convicts – Pawan, Vinay, Mukesh Singh and Akshay Kumar Singh – were granted death sentence by the High Court.

While, the fifth accused, Ram Singh, found hanged in the jail.  The juvenile accused has been released after completing mandatory probation period in a remand home.

nirbhaya

Following this, on May 5 this year, the Supreme Court upheld the death sentences of all four convicts.

Last month, the chairperson of Delhi Commission for Women (DCW) issued a notice to Tihar Jail Administration and Deputy Commissioner of Police (DCP) South District asking why Nirbhaya rapists not executed yet.

The step was taken as Nirbhaya’s mother Asha Devi in a complaint to DCW asked why death sentence has not been given carried out even after five months of Supreme Court’s verdict in Nirbhaya gangrape case.

In the notice, she has questioned that even after five months of Supreme Court’s verdict, why the accused have not been hanged. She also mentioned whether the Tihar Jail officials have issued an order of death sentence to the four accused. If the order has been issued, then reasons for not adhering to the order.

The Commission has sought a reply from the officials and DCP to the aforementioned inquiries by November 6.

Further DCW’s Chairperson expressed disappointment over delay in the execution and providing justice to Nirbhaya. Nirbhaya’s mother and the entire nation who are pleading for justice are yet to receive it. She demanded that the convicts must be hanged at the earliest.

WeForNews 

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India

Policeman attempts to fire at Kamal Nath

Rajya Sabha MP and advocate Vivek Tankha posted two tweets informing about the incidence.

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Kamal Nath

As per Rajya Sabha MP Vivek Tanka, a policeman tried to fire his rifle at senior Congress leader Kamal Nath at the Chhindwara airstrip in Madhya Pradesh. The policeman was overpowered by the security personnel present at the airstrip and has now been placed under suspension.

Rajya Sabha MP and advocate Vivek Tankha posted two tweets informing about the incidence.

Kamal Nath represents Chhindwara in Loksabha and is presently the longest serving member of the Indian Parliament. He has been elected nine times from Chhindwara.

He has won every election since 1980 with the sole exception of elections to 11th Loksabha in 1996.

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