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Circumspection, My Lords

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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)

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India

NSA Ajit Doval meets Amit Shah

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Ajit Doval, Amit Shah
Image: Defence Aviation Post

New Delhi, June 19: National security Advisor Ajit Doval on Tuesday met BJP President Amit Shah in the national capital and discussed the prevailing situation of Jammu and Kashmir.

The meeting took place ahead of high-level talks between party cabinet ministers, various office bearers of the organisation and incharges of Jammu and Kashmir over the political situation in the state including the impact of suspension of ceasfire operations during Ramzan and others.

Meanwhile, reacting to the meeting between Doval and Shah, AIMIM Chief Asaduddin Owaisi poised several questions.

“We want to know, the country wants to know what talks took place when the NSA met the chief of a political party? Why did NSA only meet the ruling party why doesn’t he meet all political parties?, he asked.

WeForNews 

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All arrested ‘Hindu terrorists’ are from RSS: Digvijaya Singh

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Congress leader Digvijaya Singh has once again accused Rashtriya Swayamsevak Sangh of promoting terrorism.Citing an example of Mahatma Gandhi killing,Former Madhya Pradesh Chief Minister said Nathu Ram Godse was also a staunch believer of Sangh ideology and all the Hindu terrorists caught up by the authorities belonged to Sangh.

“Jitne bhi Hindu dharma wale aatankwadi pakde gaye hai sab Sangh ke karyakarta rahe hai (All Hindu terrorists caught so far have been RSS members in the past),’’ the Congress leader said in Jhabua.

While speaking to media at Madhya Pradesh’s Shajapur he said RSS’ ideology spreads nothing but hate, violence and violence leads to terrorism,’.

Digvijaya had claimed that he has always spoken about Sanghi terrorism and not Hindu terrorism.

Reinforcing his stand on “Sangh terror,” he said, “bomb blasts were executed by people influenced by Sangh ideology, be it Malegaon blast, Mecca Masjid blast, blast in Samjhauta express or Dargah Sharif.”

Defending Singh’s charges, senior Congress leader Salman Khurshid said that his statements needs to be seen in the right context. “Ideologically Digvijay Singh has very strong views. He has opposed minority extremism and said that every kind of extremism is bad. We must contextualise what he said rather than generalise it and think he is saying it against one community or organisation,” Khurshid said.

 

 

 

 

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SC refuses urgent hearing on PIL over Kejriwal’s protest

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Supreme Court of India

New Delhi, June 19: The Supreme Court on Tuesday declined to hold an urgent hearing of a PIL seeking a direction to the Delhi High Court to expeditiously hear a plea for declaring the sit-in protest at Delhi Lt. Governor Anil Baijal’s office by Chief Minister Arvind Kejriwal and others unconstitutional and illegal.

The vacation bench comprising of Justice S. Abdul Nazeer and Justice Indu Malhotra said the matter would be heard on the opening day when court reopens after the summer break even as lawyer Shashank Deo Sudhi, appearing for the PIL petitioner, told the court that there was a constitutional crisis and a vacuum, and the administration was paralysed.

Sudhi appeared for PIL petitioner and advocate Hari Nath Ram, who told the vacation bench that the matter was listed before the Delhi High Court on Monday (June 18) but was directed to be heard next on June 22.

Seeking a direction to the High Court to hear the matter urgently, Sudhi told the bench that politicians were not above the law and there was a threat to the rule of law.

He referred to earlier court pronouncements by which the strikes were held to be illegal.

The lawyer said before the High Court they have prayed that perjury proceedings be initiated against the Lt. Governor and the Chief Minister for making conflicting claims on the strike by the bureaucrats serving in the Delhi government.

Kejriwal along with Delhi Deputy Chief Minister Manish Sisodia, Health Minister Satyendar Jain and Transport Minister Gopal Rai has been camping at the Raj Niwas, the official accommodation-cum-office of Lt. Governor Anil Baijal, since June 11.

Kejriwal has said he and his colleagues would not leave Baijal’s office until their demands, which include direction to IAS officers to end their “strike”, action against officers who have struck work for “four months” and approval to his government’s proposal for doorstep delivery of ration to the poor, were met.

During Monday’s hearing, the High Court had sought to know from the AAP government who has authorised Kejriwal and his cabinet colleagues to hold a sit-in protest at the Lt. Governor’s office as it was not the place to hold a demonstration.

The bench had said the protesters cannot go inside someone’s office or house and go on strike and as such the strike cannot be held inside the Lt. Governor’s office.

The High Court has been hearing three separate petitions related to Kejriwal’s sit-in protest at the Lt. Governor’s office.

One petition was filed by Leader of Opposition in the Delhi assembly, Vijender Gupta seeking direction to Kejriwal to return to work.

Another petition was filed by Hari Nath Ram through his advocate Shashank Deo Sudhi seeking to declare the sit-in protest at the Lt. Governor’s office unconstitutional and illegal.

The third plea was filed by advocate Umesh Gupta who sought to end the alleged ‘informal strike’ by the IAS officers.

IANS

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