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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

PNB hits back at Nirav Modi, says “Come Up With Plan To Pay Dues”

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PNB and Nirav Modi

New Delhi, Feb 22: In a stiff reply to Nirav Modi, the Punjab National Bank asked the celebrity jeweller come up with a concrete plan to recover the dues that his companies have borrowed without following proper procedures.

“Your commitment and undertaking for sparing of the total liability was not backed by providing upfront amounts and timelines. However, should you have any concrete and implementable plan, do revert,” the bank’s mail stated, reported PTI.

The public lender said this in a response to Nirav Modi’s mail.

In his letter, blaming PNB for “destroying” his brand, diamantaire had asserted that the bank has closed the doors to repay the debt.

In the anxiety to recover your dues immediately, despite my offer (on February 13, a day before the public announcement, and on 15) your actions have destroyed my brand and the business and have now restricted your ability to recover all the dues leaving a trail of unpaid debts,” he had said.

Read More….PNB’s actions destroyed my brand, shut all options to recover debt: Nirav Modi to bank

Modi concluded the letter urging the bank to permit him to pay the salaries to 2,200 employees from the balance lying in the current accounts of his companies.

“Whatever may be the consequences I may face for my actions, the haste was, in my humble submission, unwarranted,” he asserted.

The bank on February 14 had detected Rs 11,400 crore fraud at its Brady House branch in Mumbai on February 14, named the firms owned by Modi and his uncle Mehul Choksi’s Gitanjali Group, and some other diamond and jewellery merchants as suspects.

Following the complaint by the bank, central government agencies, the CBI and the Enforcement Directorate, registered cases against businessman Nirav Modi, his wife Ami, and Choksi, besides others.

In connection with the fraud, the CBI is questioning 12 accused who were arrested by the probe agency.

Apart from this, the Central Bureau of Investigation is also quizzing numbers of PNB officials including seniors officers.

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Modi talks of Nagaland’s development, says Naga issue’s resolution soon

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Tuensang (Nagaland), Feb 22: Assuring that the Centre is working towards finding an honourable settlement to the vexed Naga issue, Prime Minister Narendra Modi on Thursday appealed to the state electorate to vote the BJP and ally NDPP to power for political stability in the hill state and its development.

“We are working to end the political problems in Nagaland. I believe we’ll be able to hammer out a political solution to the Naga problem within the next few months, which will be honourable and well-deserving for the people of Nagaland,” he said at a public rally in remote Tuensang district.

The Prime Minister said the Centre had kept the door open for talks with anyone for finding a lasting solution to the Naga issues.

“We have kept open the option for talks with everyone. We are ready to talk to civil society and other groups at any time. We are ready to talk with the Eastern Nagaland Peoples’ Organisation also. I admit that the ENPO area is very backward. We are also going to consider special packages and schemes for the development of ENPO area,” Modi assured.

On August 3, 2015, the Centre and the National Socialist Council of Nagaland (Issac-Muivah) had signed a Framework Agreement to end the seven-decade-old insurgency. Last year, the government had signed an agreement with a Working Committee of six Naga national political groups.

In January, the Core Committee of Nagaland Tribal Hohos and Civil Organisations had urged the Election Commission to defer the Assembly elections till a solution to the protracted Naga insurgency was found.

Eleven political parties in Nagaland had also decided not to issue tickets or file nominations to press for an early solution to the seven-decade-old insurgency.

Modi said the National Democratic Alliance government is giving special priority to the northeast and making efforts to enhance prosperity in the region. “Our government is committed to ensure all-round development of the northeastern states”, he said.

Beginning his speech by saluting the Naga people in the Nagamese language, Modi said if the Nationalist Democratic Progressive Party (NDPP) and BJP alliance came to power in Nagaland after the February 27 elections, development will reach the grass roots in the state.

“People of Nagaland have been striving for peace and stability. The development of Nagaland will gain speed only when we all move together. We must now go beyond political instability, which has been in the state for the last several years. Swearing in of four Cabinets in four years is a drag on development,” the Prime Minister said, emphasising the need for a strong and stable government in Nagaland to work for its development.

“My vision for the northeast is transformation by transportation, and in less than four years, we have added 500 km of national highways and plan to invest more than Rs 10,000 crore in the roads of Nagaland, he added.

“We would ensure that the funds released for your state reach you. With the help of technology, we will plug the loopholes which are causing wastage of public money”, he said.

Informing that the central government has approved the construction of 8,500 houses in Nagaland, Modi said that for the construction of new houses and completion of old schemes for houses, we have decided to provide Rs. 160 crore to Nagaland.

“Under National Health Mission, Nagaland has been provided Rs 400 crore and the government will spend around Rs. 1800 crore for making Nagaland’s capital Kohima a Smart City,” he promised.

The Prime Minister said corruption posed a big challenge.

“It is imperative for development that every penny from the Centre reaches the common man. The then Prime Minister (Rajiv Gandhi) had once said that only 15 paise reaches the common people as against every Re 1 released by the Centre. This must change. Our government is working towards this end and plugging loopholes and leaks.”

The Prime Minister said that every resource earmarked for Nagaland’s development would be spent on public welfare and there would be no tolerance towards corruption.

“Connectivity in Nagaland is a priority for us. We have ensured development of National Highways in the state. We will invest more money here in future to further strengthen the road network. We are also focusing on increasing rail and air connectivity,” Modi said.

He also saluted the culture of the Naga people. “The Constitution of India respects Indian diversity and also calls for living in harmony with all sections of society. The culture of Nagaland is our pride and we will do everything possible to preserve and promote it,” he added.

The BJP has fielded 20 candidates and its alliance partner NDPP 40 for the February 27 elections to the 60-member Assembly.

IANS

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India

Post-office scam unearthed in Madhya Pradesh’s Bhind

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Bhind, Feb 22: A massive fraud to the tune of crores of rupees has been detected at Galla Mandi Sub-Post Office.

Following this all the records have bee sealed, UNI reported.

“Post-office agent Bevi Jain’s husband Ramesh colluded with post-master PS Bhadauria and withdrew crores of rupees from several post-office accounts. The agent and her family is absconding,” said Post Inspector Ajay Sahu.

The agent’s family has gone to some other state.

According to the reports, Ramesh used to fraudulently close post-office accounts, withdraw amount lying therein and provided the money to his sons to start a business.

This comes days after Rs 11400-crore Punjab National Bank (PNB) fraud involving diamantaire Nirav Modi and his uncle Mehul Choksi which is considered as the biggest banking scam in the history.

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