Considerations to Make while Choosing Good Lawyers for your Lawsuits

There are plenty of lawyers to find out there when you are in need of legal representation for anything like a civil, criminal, or family lawsuit. However, most of them who fall into such a situation are a complete novice to such a scenario, and the first big issue they face is the need to choose a reliable professional lawyer.

 

In this article, we are trying to discuss a few points to look while choosing a lawyer and also we will discuss Criminal Law Adelaide. As there are many providers and very tight competition in the industry, it is not easy to choose the best available professional among the lot. However, it is very important for legal services seeker to take your time out and explore all available options to choose the most reliable. Without much ado, let’s get into the points.

 

  1. Identify your budget

 

You need to realise your budget at the first point to make the most cost-effective choice. Even though the market elements like demand-supply and competition rules the remuneration of lawyers, you will find a significant variation when you are approaching different providers.

 

When it comes to civil or family lawsuits, most of the lawyers charge on an hourly basis or per court sitting. A few may also be accepting a fixed fee by calculating the total amount of time and labour they may have to spend over your case. The cost of legal representation may also vary based on the complications in your case and also the need for presenting more witnesses to strengthen your legal plea.

 

In fact, there are many skilled and experienced Lawyers who charge less just because they are not well known or may be due to the lean time as they are not involved in many cases. If your budget is limited, then carefully choosing a junior lawyer may also be a good value if your case is not much complicated.

 

They may prepare much harder as they too are in need to get themselves established by winning the cases they take over and get more reputation. When it comes to finding a lawyer, there is no hard and fast rule as the costliest lawyer is always the best.

 

  1. Always be realistic while searching for lawyers

 

In cases like divorce, the legal proceeding also entails partitioning your assets with the partner and also resolving childcare and custody related issues. In such a scenario, your lawyer’s responsibility is to represent you in the family court to the best of their ability to get a ruling in your best interest.

 

However, even though you want to them to listen to your frustrations, anger, and sadness, it is not their role. So, be realistic while dealing with a lawyer in such cases. They are not trained to be psychologists to empathize with you, but they rather focus on finding solutions for your legal issues.

 

Sometimes, what seems to be very important to you may not be so important from the legal point of view. So, always be realistic while dealing with lawyers, be it your divorce petition or a civil or criminal lawsuit you are involved in. Know what to expect from a lawyer at the first point and interact with them in a professional way to expect high-end professionalism in return.

 

Even though this the case, you can always try to build a personal rapport with the lawyer in order to share your concerns and make them understand your real objectives of going ahead with a legal proceeding. A professional provider will surely listen to you and give you the most practical solutions for your issues.

A Brief Overview Of Personal Injury Law And Its Considerations

Life is unpredictable! There are unwarranted situations and events. Accidents are common today. And every accident results in a personal loss, medical expense, and physical injuries as well. Seeking medical guidance and assistance is essential. Also, it is crucial to seek legal advice. To ensure that your cage gets a legal representation you need to opt-in for a personal injury attorney.

Understanding personal injury law

Simply put, personal injury law is also called tort law. It enables an injured plaintiff to attain the desired compensation when an individual’s intentional or negligent act cause harm. There are mixes of various situations that can result in the personal injury case. However, you need to know that every injury case doesn’t qualify to get legal representation. For more information on this, you may get in touch with Hershey Law Personal Injury. However, a few important types of personal injury cases that an attorney’s intervention is required are as follows:

  1. A car accident

Car accidents are one of the most ordinary personal injury cases. Accidents usually happen because someone is driving rash or isn’t abiding by any of the traffic rules. There are instances of intoxicated driving as well. Generally, a driver guilty of rash driving is held financially accountable for the other person’s injury. There are a couple of exceptions as well. Here the drivers need to collate from their insurers other than a fatal wound. You need to know more on a car accident case, to file a personal injury case on the same.

  1. The aspect of medical malpractice

Medical malpractice today has become common. It’s done by people who have zero ethics and a sense of social accountability. The grounds of medical malpractice apply when a medical practitioner or a doctor fails to offer adequate and skilled care. It means that any action of the healthcare professional affects a patient negatively. Medical malpractice is one of the most common types of personal injury case. Today, you have specialized personal injury attorneys who are expert in this domain.

  1. The fall and slip legal cases

Usually termed as “slip and fall,” it is one of the well-known personal injury legal cases. Today, there are property owners who need to ensure that their property premises are secure and free of any hazards. They need to make sure that their property gets arranged in such a way that no one gets injured. Also, not every injury that takes place on the property premises is liable for a personal injury case. The precise nature of a landlord’s legal accountability differs based on the situation.

Hence, the slip and fall injury cases are usually dependent on the premises accountability laws. Today, you can get in touch with a legal firm or personal injury attorneys to know more on the subject. You can also research the same online and read informative articles to have a clear understanding.

  1. Personal injury cases on defamation

It comprises of slander and libel! Today, character defamation that results from unfavourable statements and accusations can get covered as an individual injury case. Sometimes, businesses lose a fortune based on the slander comments made by a competitor. It usually deals with a lie that defames a person’s or businesses real reputation. Slander incites a malicious circle of false here to say about both a brand and a person. And if a person or a business has suffered severely because of defamation, the state holds it accountable to pay for the losses in cash or kind.

Legally, what a plaintiff will prove about libel will differ based on the plaintiff’s identity. Also, it depends a lot on the place where a particular statement was said. Generally, an individual is required to prove that a lie had affected their business reputation and have caused financial loss. Today, public figures and stars can claim this personal injury case as its standard for them.

A considerable part of their reputation depends on what people are talking about them. Once they get to provide the real malice, they’re given the compensation. It indicates that individuals should prove that a lie about them was either a result of irresponsibility or it was intentional.  You can study more on the defamation law to know more on the subject.

  1. Animal and pet bites

It is an essential aspect of personal injury cases! If your dog or pet has caused injury to the other, you are accountable for the other person’s loss. The precise laws on owner accountability differ from one state to the other. However, there are a couple of cases where you’ll find a strict liability rule. Here the dog or pet owner will be accountable for the pet bite and other damages caused. It is true even if their pet had never been aggressive in the past.

There are few states where the concept of “one bite” policies exists. Here the owners are accountable for all the personal injury damages. It’s applicable once the owners realize that their pets can get aggressive suddenly and result in a brutal and harmful bite.

  1. Battery, assault and many other deliberate torts

As opposed to the several kinds of personal injury claims, the intentional torts aren’t dependent on the accidents that occur because of an individual’s carelessness or negligence. Instead, it’s applicable when a person injures and harms the other person with a specific motive. Such a legal case also includes an added factor of the criminal legal case, which is done against your perpetrator. For instance, when a person physically harms the other, the person is bound to face criminal charges. However, additionally, a victim has the scope to file their injury lawsuit at the civil court. They can also demand compensation for all their injuries.

Do you feel that your case revolves around a personal injury? Alternatively, are you confused about what comprises a personal injury case? Then you need to understand how each personal injury case might shape up based on the essential details. It is here that you can opt-in for a personal injury attorney. Such a lawyer enables you to address your legal case better and ensure that justice isn’t denied to you.

Politics in India

POLITICS IN INDIA

By Abhishek Vaidya

2nd year B.Com LL.B

 

BASIC CONCEPT OF POLITICS:

Politics, in its broadest sense, is the activity through which people make, preserve and amend the general rules under which they live. Politics is thus inextricably linked to the phenomena of conflict and cooperation.[1] From one viewpoint, the presence of opponent suppositions, distinctive needs, contending needs and restricting interests ensures contradiction about the guidelines under which individuals live. Then again, individuals perceive that, so as to impact these principles or guarantee that they are maintained, they should work with others. The word ‘politics’ is derived from polis, meaning literally city-state. Ancient Greek society was divided into a collection of independent city-states, each of which possessed its own system of government. The largest and most influential of these city-states was Athens, often portrayed as the cradle of democratic government. This definition was acceptable because it conceived the study of the polis covering not only the principles of governance but also ethical norms of conduct and social vision. The modern form of this definition is therefore ‘what concerns the state’.[2] This view of politics is clearly evident in the everyday use of the term: people are said to be ‘in politics’ when they hold public office, or to be ‘entering politics’ when they seek to do so. Politics may be treated as an ‘essentially contested’ concept, in the sense that the term has a number of acceptable or legitimate meanings. Contrary to this, these different views may simply consist of contrasting conceptions of the same, if necessarily vague, concept. The concept of ‘what is politics?’ is worth pursuing because it exposes some of the deepest intellectual and ideological disagreements in the academic study of the subject. The different views of politics are:[3]

  1. Politics as the art of government
  2. Politics as public affairs
  3. Politics as compromise and consensus
  4. Politics as power and the distribution of resources

Politics as the art of government; ‘Politics is not a science … but an art’, Chancellor Bismarck is reputed to have told the German Reichstag. The art Bismarck had in mind was the art of government, the exercise of control within society through the making and enforcement of collective decisions. Since the state performs its functions through the government, its main forces remained on the personnel and machinery of government. To study politics essentially meant the study of government or more broadly the study of authority. David Easton defined polities as the “authoritative allocation of values”[4] by this he meant that politics includes all those processes through which government allocates benefits, rewards or penalties. This is how it meets the demands and needs of society.

Politics as a public affair: The second conception of politics moves the narrow realm of government to what is thought of as ‘public life’ or ‘public affairs’. In other words, the distinction between ‘the political’ and ‘the non-political’ coincides with the division between an essentially public sphere of life and what can be thought of as a private sphere. The institutions of the state (the apparatus of government, the courts, the police, the army, the social-security system and so forth) can be regarded as ‘public’ in the sense that they are responsible for the collective organization of community life. Moreover, they are funded at the public’s expense, out of taxation. In contrast, civil society consists of the ‘little platoons’, institutions such as the family and kinship groups, private businesses, trade unions, clubs, community groups and so on that are ‘private’ in the sense that they are set up and funded by individual citizens to satisfy their own interests, rather than those of the larger society. On the basis of this ‘public/private’ division, politics is restricted to the activities of the state itself and the responsibilities that are properly exercised by public bodies.

Politics as compromise and consensus: This is the third conception of politics and it explains to us that politics is a particular means of resolving conflict: that is, by compromise, conciliation and negotiation, rather than through force and naked power. In this view, the key to politics is therefore a wide dispersal of power. The disagreements that exist can be resolved without resort to intimidation and violence. This view of politics has an unmistakably positive character. Politics is certainly no utopian solution, but it is undoubtedly preferable to the alternatives: bloodshed and brutality. In this sense, politics can be seen as a civilized and civilizing force.

Politics as power: This is the broadest and the most radical definition of politics. At its broadest, politics concerns the production, distribution and use of resources in the course of social existence. Politics is, in essence, power: the ability to achieve a desired outcome, through whatever means. This notion was neatly summed up in the title of Harold Lasswell’s book Politics: Who Gets What, When, How? (1936). From this perspective, politics is about diversity and conflict, but the essential ingredient is the existence of scarcity: the simple fact that, while human needs and desires are infinite, the resources available to satisfy them are always limited. Politics can therefore be seen as a struggle over scarce resources, and power can be seen as the means through which this struggle is conducted. Politics, in this view, is everywhere; indeed, given the widespread potential for power-related conflict, politics may come to be seen as coextensive with social existence itself.[5]

Origin of state

The question about the origin of the state has been examined for quite a long time. In the historical and philosophical subjects, this inquiry is a conflicting issue among researchers. With no solid proof to back any of the proposed hypotheses, it stays as theory. The greater part of the most acknowledged speculations do concur that the state must have certain essential components: territory, populace, government and sovereignty. Following are the most widely accepted theories of the origin of state as we know it today

The Social Contract: Social contract hypothesis, about as old as philosophy itself, is the perspective that persons’ moral and/or political commitments are indigent upon an agreement or assentation among them to frame the general public in which they live. Socrates utilizes something entirely like a social contract contention to disclose to Crito why he should stay in jail and acknowledge capital punishment. Be that as it may, social contract theory is rightly connected with present day moral and political theory and is given its first full exposition and guard by Thomas Hobbes. After Hobbes, John Locke and Jean-Jacques Rousseau are the best known advocates of this gigantically powerful hypothesis, which has been a standout amongst the most prevailing speculations inside of moral and political theories all through the historical backdrop of the cutting edge West. In the twentieth century, moral and political hypothesis recovered philosophical force as a consequence of John Rawls’ Kantian variant of social contract hypothesis, and was trailed by new examinations of the subject by David Gauthier and others. All the more as of late, scholars from alternate points of view have offered new reactions of social contract theory. Specifically, women’s activists and race-cognizant rationalists have contended that social contract hypothesis is at least a fragmented photo of our moral and political lives, and might disguise a portion of the routes in which the agreement is itself parasitical upon the enslavements of classes of persons.

Organic Theory: Organic Theory of the State is one of the earliest endeavors to follow the origin and development of the State. It depicts a very unique picture of beginning and structure of the State in contrast with the vast majority of alternate Theories. The organismic theory is basically a biological concept which depicts the working of the state in organic terms. The primary idea of  this Theory is to draw an analogy between the State and a living creature as both have inclination to develop as a body furnished with various organs and faculties to perform and act as per the necessities of the time and need. er. It presumes that the State is similar to a genuine natural body or a living life form and the connection between the State and the individual is the same as that between a living being and its cells.

POLITICAL SYSTEM IN INDIA: DEMOCRACY

Most popular form of government in the world today. As the society progresses it moves towards democracy as it reaches a certain level of maturity.

Derived from the Greek word demos meaning people and kratos meaning rule. So it means rule by the demos.[6]

There are two kinds of democracies:

  1. Direct democracy[7]: (also called participatory democracy)

It is based on direct, unmediated and continuous participation of citizens in the tasks of the government. In other words people themselves are involved in the process of decision-making in a direct manner.

Example: Ancient Rome, it was achieved through a process of mass assembly where all the citizens of Rome came together.

Merits:

  • It is democracy in its truest and purest form, more control and participation of the people.
  • People are actively involved in the process, they are well informed and there is a higher level of literacy.
  • Free and direct expression of views of the public.
  • As they are directly the decision makers they are more likely to accept the decisions.

But it is not possible to implement in today’s world.

 

  1. Representative Democracy:

Limited and indirect form of democracy. People do not exercise power themselves they elect others to make decisions on their behalf.

Practiced in most countries of the world including India.

This system usually works through a process of election and formation of political parties by the people.

Merits

  • Practically possible
  • Ordinary people are freed from dealing with such matters and people more adept to such tasks can take over.
  • Lends greater stability to the people.

Demerits

  • Not a democracy in the true sense
  • People not directly involved in the decisions
  • Many a times their will is not considered, there is exploitation of power by the few who are elected.
  • Decision making is slow.

 

Bi-Party System: Refers to a political system in which two major parties are engaged in political rivalry to get into power.[8] Even though more than two parties may exist over here, it may not matter as they are not significant enough to make a difference.

Example: there are two political parties in England- Conservative Party and Labour Party

America – the Republican and the Democratic party

Multi-party system:[9] Here more than two political parties are functioning.

Example: India, France, and Denmark.

 

POLITICS AND ELECTIONS IN INDIA

Introduction

On 15 August 1947, India i.e. Bharat, the world’s largest democracy was born. After decades of struggle by the people and the leaders of the various political organizations, the British rule over India ended with the creation of two separate nations India and Pakistan. As per the 2011 survey, India’s population stands at 1.252 billion, out of which the Hindus constitute 80.5 %, Muslims 13.5 %, Christians 2.3 %, Sikhs 1.9 %, and other religions 1.8 %. Schedule 8 of the Indian Constitution recognizes 22 languages spoken in different parts of the country. This diversity has made the country’s politics very peculiar and different than most of the nations both developing and developed.

After a century and a half of British colonial rule, India went on to become a federal state. It officially became a republic on the 26 January, 1950. The principles of liberty, equality, fraternity, justice, secularity which have been enshrined in the Indian Constitution have been well preserved by the parliament and the judiciary, and have efficiently been implemented by the executive. This section is going to deal with some of the particular aspects of Indian Politics like the Panchayat Raj System which make it so different than other democracies. It will also describe the various factors like caste, religion and language which have been playing an important part in influencing and deciding modern day politics, and how these have been exploited by various political parties for their own gains.

Panchayati Raj System

The word Panchayat is derived from the Hindi words, ‘Panch’ meaning five, and ‘yat’ meaning council, literally meaning ‘the council of the five’. Panchayats have been the backbone of the Indian villages since the beginning of recorded history, with evidences from the Vijaynagara empire in the 15th and the 16th century. “In 1946, Gandhi had aptly remarked that the Indian independence must begin at the bottom and every village ought to be a Republic or a Panchayat with powers.”[10] His dream got translated into reality with the introduction of the three-tier Panchayati Raj system after the 73rd amendment in 1993. Mahatma Gandhi advocated Panchayati Raj the foundation of India’s political system, “it would have been a decentralized form of government where each village would be responsible for its own affairs. The term for such a vision was Gram Swaraj (village self-governance).”[11] Although the Father of Nation, Mahatma Gandhi, advocated for ‘a village based political formation fostered by a stateless, classless society’ for the creation of Gram Swaraj, the idea of Panchayati Raj did not find a place in the Draft Constitution of India. This happened because the Congress Constitution Committee rejected the idea ‘believing that the Congress could neither forgo its political role nor become so utterly decentralised’ as envisaged in the Gandhian concept of Gram Swaraj.[12] Ambedkar was forced to incorporate Article 40 in the Directive Principles of State policy which directed the state to set up Village Panchayats and endow them with the authority to function as units of self-government. A huge step towards the modern PRS was the result of the Balwant Rai Mehta Committee in 1957, which recommended the establishment of three tier PRS at the village, block, and district levels. “The recommendation also included the aims of promoting political consciousness amongst the local population and the settlement of local problem by local means.”[13] This was formally adopted after the liberalization policies of the government and a new look on decentralization within the five year plan of 1992-97. As per the Constitution, Panchayats in their respective areas would prepare plans for economic development and social justice and also execute them. The functions of Panchayats are divided among different Committees (as ministries are formed in state and union governments), which are called Standing Committees/Sthayee Samitis/Upa Samitis, different in different states. Apart from grants received from the government under the recommendation of the Finance Commission, Panchayats receive schematic funds for implementation of schemes like MGNREGA, BRGF etc. They can also raise revenue by imposing taxes, fees, penalties etc. as per rule of the state.

 

Caste and Politics

Caste in Indian society refers to a social group where membership is decided by birth. Members of such local group are endogamous, i.e. they tend to enter into marital relationships among themselves. They often have related political preferences too. There are about 2000 jatis in the Indian society, broadly classified into four varnas i.e. i) Brahmins; were the priests who used to perform rituals and other religious acts, ii) Kshatriyas; were the rulers and warrior class, iii) Vaishya; were the merchants and the traders, iv) Sudras; were given all the menial works considered improper for the other castes. “The untouchables were outside the Varna system.”[14]

If a lower caste are concentrated enough in one area, it can then translate that pocket of concentration of its caste members into political power and then challenge the hegemony of locally dominant upper caste. This leads politicians to exploit these people. Caste in politics plays a very important factor even in modern day politics. Some people say when describing elections and castes in India as, “In other democracies you cast your vote, whereas in India you vote your castes.”

Historically, it has been very difficult to separate out caste from politics, and after the liberalization policies of 1992, there has been a flux in caste politics. Rajni Kothari examined the relationship between caste and politics by analysing the issue as to what happens to political system because of the vote of castes. He found that three factors—education, government patronage, and slowly expanding franchise (including 18-21 year old young persons in electorate)—have penetrated the caste system because of which it (caste system) has come to affect democratic politics in the coun­try.[15] Economic opportunity, administrative patronage, and positions of power offered by the new institutions and the new leadership drew castes into politics.

Voting provides an important opportunity for lower castes to assert themselves. Caste is a voting determinant in India. Just as in Britain, voting is determined by class, in the USA it is determined by race, in the same manner in India it is determined by caste. ‘Caste values’ and caste interests influence his socialisation and consequently his political thinking, awareness and participation. He banks upon caste solidarity for occupying and performing a leadership role. All political parties give great weight age to the caste factor in selecting their candidates, in allocating constituencies to their candidates and in canvassing support for their nominees in the election. In the election campaigns, votes are demanded in the name of caste. Caste factor influences the policies and decisions of the state governments.

Religion and Politics

The word ‘secular’ was added to the constitution in 1976, which implies a wall between a religion and the state, and also equality of all religions. For understanding the political dynamics of India, it is necessary to realize the dominant religious forces prevalent.

The mainstream parties in India also have conflicting ideologies, while the Congress claims to be ‘secular’, the BJP is a Hindu nationalist party with RSS as the parent organization which never shies away from giving and radical statements against non-Hindus, particularly Muslims. This is usually used by the ‘Hindu nationalists’ in getting votes by giving statements like those who don’t support the ideologies of the BJP i.e. the Hindus are bastards[16]. When adherents of a religion are regionally concentrated, such as Sikhs in Punjab and Muslims in Kashmir, there is a convergence of religion and regional identity. . Whereas in Kashmir there have been separatist movements from 1947 and continues today. So, religion and politics have played an important part in India as a whole, and in some states. But, there have been incidents of communal harmony which outweigh those of the communal violence, which can be seen in the recent rout of the BJP in the state elections of Delhi and Bihar last year. Especially in North India, there are places where Mosques and temples stand adjacent to each other.

Language and Politics

Language plays a very important part in defining nationalism. If we look at the case of East and West Pakistan, both had the same religion, i.e. Islam and both in 1947 wanted a separate homeland for Muslims. Considering all this East Pakistan still went on to become present day Bangladesh. The only reason; the leaders in West Pakistan vouched for Urdu as the state language, whereas Bengali people took this as an attack on their identity, which was preserved by their language. Regional languages are the main medium for official transactions within regions. Linguistic movements in India have, thus contributed to the greater differentiation of the political system as well as to the overall legitimacy of the state, without at the same time, damaging the basis of national integration.[17]

Rigging in Elections

Vote rigging practices are not limited to bribery or voter intimidation. They include disseminating scurrilous rumours and false campaign propaganda, tampering with election machinery by stuffing ballot boxes with fraudulent returns, counting or reporting the vote dishonestly, and disregarding electoral outcomes by incumbent officeholders.

Voter intimidation involves putting undue pressure on a voter or group of voters so that they will vote a particular way, or not at all. Intimidation can take a range of forms, Violence or the threat of violence, Attacks on polling places, Legal threats, Another method of confusing people into voting for a different candidate than they intended is to run candidates or create political parties with similar names or symbols as an existing candidate or party. The aim is that enough voters will be misled into voting for the false candidate or party to influence the results.[18]

NOTA

“None of the above” is a proposed voting option in India that would allow voters who support none of the candidates available to them to register an official vote of “none of the above”, which is not currently allowed under India election regulation. The Election Commission of India told the Supreme Court in 2009 that it wished to offer the voter a “none of the above” button on voting machines; the government, however, has generally opposed this option. On 27 September 2013, Supreme Court of India pronounced a judgement that citizens of India have Right to Negative Vote by exercising None of the above (NOTA) option in EVMs and ballot papers.

 

POLITICAL THINKERS OF MODERN INDIA

Nehruvian political ideology

He strove to guide India towards a socialist pattern of society following a path based on his interpretation of socialism drawn on a mixed recipe of classical Marxism and a version of capitalism that evolved in India under the aegis of colonialism[19]. His foreign policy was also a unique blend of realism and ideology that seemed to have worked, presumably due to ‘distrust’ among the major powers and generally vitiated circumstances of cold war Era.[20]

One of the foundation pillars of Nehru’s political ideas was ’Marxism’. From Study of Marxism he gathered that industrialism would not only ensure economic development but would also create socio-economic and political forces supportive of new milieu and critical of the decadent interests upholding archaic values.[21] Nehru’s political modernity endeavoured to democratize the urban and rural political structures, to reform the administration and it’s functioning to discard the colonial residues of subjects and rulers, to create modern citizenry, and to institutionalize equitable governance, transparency and accountability.[22] Policy of Non- Alignment was based on the principles of ‘Panchsheel’ and was perhaps the most realistic and pragmatic way of protecting India’s interest[23]. He set India to a path of growth, based on creative interpretation of socialistic values and principles and he remains significant in today’s neo-liberal world because of his transcendental political thought that continues to inspire alternative discourses[24]

Ram Manohar Lohiya and his political thoughts

Lohiya appeared to be aiming at preparing the ground establishing socialism as the most appropriate theoretical format for steering India on the path of an equitable and all-round socio-economic development. While he accepted socialism as the viable ideology for India and tried to conceptualize it in light of the Gandhian inputs, he came out with idea of new socialism in 1959 with the plea that it offers a comprehensive system of socio-economic and political life for the people in India[25]. He maintained that the incorporation of Gandhian principles in the socialist philosophy would lend greater practicability of socialism to the Indian situations [26]

The cumulative effect of a new theory of socialism argued Lohiya would be in providing such a complex web system of life for the people that they would not only be able to live an egalitarian and content life within the country but would also aspire to become a part of the world government.[27]

Lohiya gave the concept of ‘permanent civil disobedience’ i.e. resistance against state. According to him it should be permitted whenever or wherever an individual’s freedom was in danger or excessive state interference created an obstacle in path of development of individual personality. Lohiya gave model of four pillars of state ‘Chaukhamba Model’ to fit within the framework of decentralized democratic polity he recommended for the country. He believed that by replacing the two-tier administration system to four pillar state many problems of Indian administration will be solved.

PROBLEMS IN THE POLITICAL SYSTEM OF INDIA – I

Corruption

Corruption is one of the social evils, which is rampant in all societies of world. Unfortunately, India is regarded as one of the countries in which corruption is widespread during recent years. India is a vast and beautiful land but however the beauty and goodwill of this nation is spoiled with corruption, which is happening in every sector. According to Civil Law Convention on Corruption, “Corruption” means requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the prospect thereof[28]& As per section 161 of Indian Penal Code The intentional abuse of public office by way of accepting, obtaining, agreeing to accept, attempting to accept or to obtain from anyone for himself or for any other person any gratification other than legal gratification as a motive or reward for doing or forbearing to do any official act, or for showing in the exercise of his official function, favouring or disfavouring any person, or rendering or attempting to render any service or disservice to any person.

Power corrupts and absolute power corrupts absolutely” this quote is given by Lord Acton, a British historian.

Embezzlement

Embezzlement means the theft of entrusted funds, it turns to political when the public money that is entrusted to the public officials use it for their own personal use not specified by the public. It means that government tries to send some benefit like money, medicine, food to recipients, and officials who are in charge of sending benefits simply steals them rather than delivering to needy people.

Kickbacks

Kickbacks are a form of negotiated bribery in which there is a commission to be paid to bribe taker in exchange for the service given. Kickbacks are the most common type of government corruption; it is a share of misappropriated funds allocated from his or her organization to an organization, which is involved in corrupt bidding. so a politician who is in charge of choosing how much public funds should be spent for a particular work, he can give a contract to a company that is not the best bidder, or allocate them more than they deserve so in this way the public official can use their power and allocate the bid to the company they want, now the company gets benefit, and in exchange for betraying the public the public official or politician gets a kickback payment from the company. For example Bofors Scam-1980 & 1990s- Rs 100 to 200 Crores. The Bofors scandal is known as the hallmark of Indian Corruption.

Nepotism

The word nepotism comes from Italian word ‘Nepotismo’ which has its root word in Latin as Nepos which means nephew. Nepotism in simple is favouritism granted to the members of the family at the time of recruiting candidates for public office with no regard given to their merit.  In India politics is not an occupation but a family  business if someone’s father is MP his son or his daughter will regard the constituency as their family heirloom and when the time comes to choose a candidate for the general election, parties give more tickets to the relatives of MPs. India politics can be called as the motherland of Nepotism right for independence we see nepotism in our political system, According to Patrick French in his study of Indian Parliament, he unearthed some troubling data. He found that 100 per cent of MPs in the current lower house or parliament under the age of 30 are from the families with a political background, French dubbed them “hereditary” MPs. Of the MPs who were aged 40 and above 2/3rd were hereditary M.P.s. [29]

Criminalization of Politics

Many years ago, Napoleon said that the great difficulty with politics is that there are no established principles. Criminalisation of politics means to use politics or political power for personal gains and also we find that political power has been used for attainment of undue privileges and when this is rampant in politics we called it as criminalisation of politics. But there are steps taken to curb this criminalization in politics The Vohra report submitted by the former, Indian Union Home Secretary, N.N. Vohra in October 1993, studied the problem of the criminalization of politics and of the nexus among criminals, politicians and Bureaucrats in India. The report contained several observations made by official agencies on the criminal network which was virtually running a parallel government. It also discussed criminal gangs who enjoyed the patronage of politicians — of all political parties — and the protection of government functionaries. . But in 2005 lawyer Lily Thomas and former IAS officer S.N Shukla filed a public interest litigation asking the courts to set aside Section 8(4) of the Representation of the People Act because it allowed sitting MPs and MLAs to continue to be elected representatives even when convicted in a court of law. The petition appealed that this special protection was unconstitutional and hence should be struck down. By this PIL the SC ordered that upon conviction, charge sheeted MPs and MLAs would be disqualified with immediate effect from holding membership of the house and this offered a ray of hope towards curbing criminalization of politics.

 

INTERVENTION OF JUDICIARY IN POLITICS

The role of the parliament is that of a supreme law making body and the judiciary acts as the supreme authority for the interpretation of the constitution and the laws passed by different legislative bodies. It is widely accepted that the independence of judiciary plays a crucial role in the quality of governance of the nation. Therefore, the constitution makers have given various provisions that keep the judiciary independent from the executive and legislature. The framers of the Indian constitution were determined to provide for a judiciary that is independent and scrupulously guards the fundamental rights. There is always a need to maintain balance between judiciary and legislature.[30] It is very well known that the judiciary has time and again intervened in political matters to safeguard democracy.

In November, 2015, the Supreme Court had agreed to hear a public interest petition on de-criminalisation and de-communalisation of Indian politics through electoral reforms. The petition demands lifetime ban on persons who are convicted, from contesting polls or becoming office-bearers in a party. It is contended that coveted goals of the Preamble will be impossible to achieve if there is nepotism and corruption in Indian politics, and if the criminalisation of politics exists.[31] Whatever outcome might come out of this petition, it is evident that judiciary has been proactively concerned about the condition of politics in India.

The concepts of judicial activism and public interest litigation are examples of the intervention of the judiciary in politics. The judiciary has also attempted to tackle environmental issues which the executive and legislature was supposed to handle. The judiciary has adopted “progressive interpretation” rather than sticking to a narrow interpretation. This is done in order to protect the basic and fundamental rights of the weaker and vulnerable sections of the society.

Judicial activism means a philosophy of decision making whereby judges allow their personal views about public policy, among other factors, to guide their decision, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.[32] Justice does not mean to simply interpret the black letter of law. In a divergent society like ours, it is crucial to interpret the law in such a way that it satisfies the need of the society.

In a remarkable judgement,[33] the Delhi High Court had legalized the marriage of an underage girl (17 years old) which was a matter pertaining to “run-away marriage”. The court held that there was no law in India that prohibited love marriage. The court had also kept in mind the atrocities that are perpetrated on the couples who run away. [34] If the court had simply interpreted the law, it might have declared the marriage void on the ground that the girl was underage. Instead it chose    to see the best interests of the society.

 

What is the scope of judicial activism?

Articles 13, 32, 141, 142 and 226 of the Constitution are important in judicial activism. Article 32 makes the Apex Court as the guarantor and protector of the fundamental rights. Article 13 confers power of judicial review to the Supreme Court. In carrying out judicial review, the Supreme Court can look upon the constitutionality of legislative or executive act. In this regard, the High Court hold the same power. Article 141 states that the Supreme Court has the power to declare the law but not to enact it. However, in course of interpreting the law, it can alter the law. Article 142 enables the Supreme Court in to pass such order or make such order as is necessary for doing complete justice in any cause or matter pending before it. With the help of these articles, the High Courts and Supreme Court have played a crucial role in redressing various environmental and social issues.

 

The activist approach of the court came only during the late 1970s.[35] Although a lot of amendments were made in the Constitution of India soon after it was being enforced, the amendments made during the Nehru era were far less controversial in nature than those made during the era or Indira Gandhi and Rajiv Gandhi. The amendments made during the Nehru era did not affect the fundamental rights to the same extent.[36]

The prime example of judicial activism during that time period was the case of Kesavananda Bharati[37] (fundamental rights case). That case over-ruled the judgement given in the Golaknath[38] case. It held that the parliament could only make amendments in the Constitution so long as the Basic Structure of the Constitution was not altered or damaged. In other words, everything the in the Constitution can be amended provided that the basic structure of the Constitution remains the same. It was the first significant act of judicial activism by the apex court.[39]

A very important area of judicial activism is Public Interest Litigation (PIL). It is a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected. “Public Interest” does not mean anything so narrow as mere curiosity or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national Government.[40]

PIL made the progress of judicial activism easier and due to that it has become very popular. It has libereralised the way in which locus standi (the right of a party to appear and be heard on the question before any tribunal, frequently disputed in private bill legislation)[41] was viewed. Even a letter can be accepted in the court as PIL. Only the party who was aggrieved could approach the courts and ask for remedy, before 1980s. Whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury.[42] Justice Bhagwati has observed that there is a need to bring new methods and strategies that would make it possible for people who are denied of human rights to access justice.[43]

Why is judicial activism required?

Judicial activism become crucial in India because the executive and legislature have failed in addressing people’s causes properly. While certain people apprehended that by exceeding its power and making inroads into executive and legislative, judicial activism had upset the constitutional system of checks and balances, some welcomed the way in which the judiciary was re-defining its function a corruption-ridden system.[44] Judicial activism has disinterred a number of scandals and scams, Fodder scam, Fertilizers Import scam, Hawala scam and St. Kits case, to name a few. For example, through Vineet Narain’s PIL, the Hawala scam, a political scam that involved a bribery of US $18 million that implicated some of the leading politicians, was unearthed.

Judicial activism has also provided some sort of stimulation to the judiciary along with the executive and legislature. Various legislations have come into existence due to the hyperactivity of the judiciary. It has led to the creation of an environment of accountability and transparency. Also, it has to be taken into consideration that in a democracy one of the crucial motives is to maximise the welfare of the public. Therefore, if one wing of government takes up the responsibility of the other coordinated wings, there needs to be no disapproval or worry.

The independence of the judiciary is an essential component of the Constitution. It cannot be entrenched upon by legislation or even by amendments in the constitution.[45] Judicial activism needs go on without any type of hindrance. Judiciary is not immune to public scrutiny. Former CJI, Adarsh Sen Anand said that the true strength of the judiciary lies in the confidence of the people in it. Judicial authorities have a duty to make sure that this confidence is not lost. It is the fear of change of this public opinion that will stop the democracy from judicial transgression.[46]

What are the causes of Judicial Activism?

Today, people’s faith in the efficiency and integrity of governmental bodies remains seriously scoured. Former Chief Justice of India, J.S. Verma says that the primary reason of judicial activism is the inaction of the governmental authorities. Many a times the courts have invoked their writ jurisdiction for passing orders through the process of judicial activism.[47] However, they got the public support as this was done for public good. Intervention by the judiciary is increasing as the executive and legislature are not performing their part properly. People generally go to courts when there is no other means available to them. It is unfortunate that the governments are not responsive to protests that are expressed by the people.

Corruption has become rampant in the Indian society. Corruption along with lethargy and inefficiency has been prevalent in almost all states of India, and has become a nuisance which is being faced by lot of people in India. So far, no state government has been able to remove such elements from the administrative offices.

The reason for the growth of judicial activism is that there has been a change in the traditional view of the functions performed by the judges. In Vineet Narain v. Union of India[48] the Supreme Court had directed on how the appointment of the Vigilance Commission should be done. It was clearly beyond its power. However, intervention of the judiciary appeared to be a ray of hope for the people who were disgusted by corruption and fed up with misuse of power done by people holding powerful positions.[49]

In Champakam Dorairajan v. State of Madras[50], the Supreme Court listening to a petition on state government’s action to reserve seats in government funded engineering and medical colleges, held that the same is unconstitutional and is in violation of Article 15(1) of the constitution of India. It observed that directive principles of state policy cannot override the guaranteed fundamental rights.

Another reason for the judicial intervention is the denial of natural justice doctrine. In the case of Maneka Gandhi v. Union of India[51], Justice V. R. Krishna Iyer had observed “Natural Justice is a distillate process”. Normal citizens have, over a period of time, apprehended that the administration has become apathetic, and corruption, inefficiency and criminality are widespread, so it leaves them with no recourse but to move the courts with the help of PIL, thus expanding the field for judicial intervention.[52] Due to this reason judicial activism and PIL have touched almost all facets of public life.

Cases of intervention of Judiciary in Politics

The responsibility of the betterment of people is on legislature as well as judiciary. Given the way Supreme Court has taken its stance for the “progressive interpretation” of the Constitution and laws made by other bodies, the courts too are accountable to the common citizens. People expect transparency in terms of governing process from both legislature and judiciary. In the past 3-4 decades, courts have made efforts to enforce the policy that protects the public interests. Below are some examples of cases decided by the apex court where judicial intervention was done in governmental work.

The amicus curiae also reported that the prisoner explained the reason for inflicting such torture was due to the unfulfilled demand of the warden for money. Also, attempts were made by the officers of the department to cover up the crime by frightening the victim and jail doctor. A story was made that the injury was casued because a fall or due to piles. The bench headed by Justice V.R. Krishna Iyer, in this case, held that the writ of habeas corpus can be issued for releasing a person from illegal detention as well for the protection of prisoners from inhuman and barbarous treatment.

  1. Abhiram Singh v. C.D. Commachen (Dead) By LRS. & ORS.[53]

In this latest judgment by the apex court of India the contension was that a BJP leader was elected from santa cruz constituency and was alleged of appealing of votes in the name of hindu religion. The Supreme Court gave a broad interpretation of the section 123 of the Representation Of People Act, 1951.

  1. State of Uttar Pradesh v. Raj Narain[54]

In 1975, the Allahabad High court found the then Prime Minister Indira Gandhi guilty of election malpractice, invalidated her candidature and barred her from holding an elected office for six years. The decision caused a political crisis and resulted in the imposition of state of emergency. It however, consolidated the power required for the introduction of PIL.

2G Spectrum case and Commonwealth Games case and Noida land acquisition case. The concept of judicial activism has been used by the courts as a strategy to provide justice to the deprived sections of society.

CONCLUSION

Politics in India is of every concern to every individual in the country. Politics play a major role in a democracy. The type of political system chosen by India includes choosing of representative by the people, there trust and voice should be heard but with time we see a lot of corruption etc. happening which has led to weaken of the Indian democracy. After seeing the amount of success the judiciary has had in protecting fundamental rights, it seems that judicial intervention is a necessity. It seems as if the executive and legislature have failed to care about the aspirations of public. In the fight to dominate the vote bank, the public good is totally disregarded. In such a situation, the common citizen looks up to the judiciary. The judiciary has been able to deliver results and therefor there is a sense of accountability.

The intervention by judiciary has acted as a boon for the people fed up by the selfish and corrupt practices of the various governmental bodies. The government, once elected, many a times acts in a high-handed manner. People feel as if they are powerless for 5 years, once the elected party fails to deliver.

One might raise a concern that the power of the courts must also be kept in check. But it would be safe to say that neither legislature nor executive is in any position to check the power of the apex court, as both are involved in corrupt practices. The judiciary must use its independence to vouch for the fundamental rights of the citizens. As Justice V.R. Krishna Iyer said, “This vulnerable yet impregnable value of independence of the judiciary is not the pampered privilege of elite brethren but the people’s dearest in desideratum in societies where imperilled human freedoms still matter.”[55]

 

 

[1] Anup Chand Kumar, Principles of Political Science (New Delhi: S. Chand, 2014)

[2] Andrew Heywood, Political Theory: An Introduction (Replika Press Pvt. Ltd., 2008)

[3] Ibid

[4] John Hoffman and Paul Graham, Introduction to Political Theory (England: 2009)

[5] Ibid.

[6] Andrew Haywood, Political Theory: An Introduction (Haryana: Palgrave, 2004), 221.

[7]Andrew Haywood, Political Theory, 70.

[8] C.N.Shankar Rao, Sociology: Principles of Sociology with an Introduction to Social Thought (New Delhi: S.Chand and Company Ltd., 2012), 402.

[9]Ibid.

[10]“Panchayat Raj System in India.” Issues of India. 2012, https://socialissuesindia.wordpress.com/2012/09/06/panchayat-raj-system-in-india/.

[11]R. S. Sisodia, “Gandhiji’s Vision of Panchayati Raj: Panchayat Aur Insan (1971),  9–10.

[12]Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966), 29.

[13]Subrata K. Mitra, Politics in India,147.

[14]Subrata K. Mitra, Politics in India, 73.

[15]“Relationship between Caste and Politics in India.” YourArticleLibrary.com The Next Generation Libraryhttp://www.yourarticlelibrary.com/politics/relationship-between-caste-and-politics-in-india/39169/

[16]Niranjan Jyoti, “Indian Minister Calls Non-Hindus ‘Bastards’” Time. http://time.com/3619564/niranjan-jyoti-racist-india-bjp/.

[17]Subrata K Mitra, Politics in India(New Delhi: Oxford University Press, 2014), 71.

[18]Jonathan P. Hicks, ‘Seeing Double on Ballot: Similar Names Sow Confusion’, The New York Times, July 24, 2004.

[19]Chakrabarty and Pandey,Modern and Political thought, 122.

[20]Chakrabarty and Pandey,Modern and Political thought, 122.

[21]Chakrabarty and Pandey,Modern and Political thought, 127.

[22] Singh and Joshi, Indian Political Thought, 169.

[23]Chakrabarty and Pandey,Modern and Political thought,  143

[24]Chakrabarty and Pandey,Modern and Political thought, 143.

[25]Chakrabarty and Pandey, Modern and Political thought, 184.

[26]Chakrabarty and Pandey,Modern and Political thought, 184.

[27]Chakrabarty and Pandey,Modern and Political thought, 185.

[28]“Civil Law Convention on Corruption. “Treaty Office. http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/174

[29]Amrit Dhillon, “Nepotism: the way they do politics in India” (March 2014http://www.smh.com.au/comment/nepotism-the-way-they-do-politics-in-india-20140327-zqnpg.html.

[30]Hamid Ansari, “Need to maintain balance between judiciary, legislature”, Deccan Herald, March 16, 2011.

[31]“SC to Hear PIL Seeking De-criminalisation of Politics.” The Hindu, November 23, 2015,. http://www.thehindu.com/news/national/sc-to-hear-pil-seeking-decriminalisation-of-politics/article7909081.ece#comments.

[32]Bryan A. Garner and Henry Campbell Black. Black’s Law Dictionary (St. Paul, MN: West Group, 1999), 850.

[33]AIR2006Delhi37

[34]Dhananjay Mahapatra, “SC Says Orders on Lowering Marriage Age No Precedent”, The Times of India, March 28, 2006.

[35]S.P. Sathe, Judicial Activism in India (New Delhi: Oxford University Press, 2002), 52-53.

[36]G. C. Thomas Raju, Democracy, Security and Development in India (UK: Palgrave Macmillan, 1996) 86.

[37]AIR 1973 SC 1461

[38]AIR 1967 SC 1643

[39]J.S Verma, New Dimensions of Justice (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2000), 68-82.

[40]Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, 331: 1993 SCC (Cri.) 36

[41]J. J. S. Wharton, Wharton’s Law Lexicon: With Exhaustive Reference to Indian Case Law: Along with Legal Phrases and Legal Maxims: Including Glossary of Unique Words Used by Justice V.R. Krishna Iyer, Former Judge, Supreme Court of India. 15th ed. (Delhi: Universal Law Pub., 2009), 1019.

[42]Kumari Shrilekha Vidyarthi etc. v. State of Uttar Pradesh & others. AIR 1991 SC 537

[43]S.P. Gupta v. Union of India, 1981(Supp) SCC 87: AIR 1982 SC 149

[44]Bal Krishna, “Judicial Activism at its Peak”, The Hindustan Times, December 26, 1996, 10.

[45]Kashmir Singh, “Appointment of Judges of the Supreme Court”, in B.P. Sehgal (ed.), Law, Judiciary and Justice in India (New Delhi: Deep and Deep Publications, 1993), 112-25.

[46]“CJI defends Judicial Activism”, The Hindustan Times, October 30, 1998, 10.

[47]M. A. Khan and S. & Farooq, Environment, Biodiversity, and Conservation (New Delhi: A.P.H. Pub. Corp., 2000), 508.

[48]1998 1 SCC 226

[49]S.P. Sathe, Judicial Activismin India, 278.

[50]AIR 1951 SC 22res6

[51]AIR 1978 SC 597

[52]Anil Divan. “Judicial Activism and Democracy.” The Hindu, 2007, http://www.thehindu.com/todays-paper/tp-opinion/judicial-activism-and-democracy/article1822007.ece.

[53]http://barandbench.com/supreme-court-interpreted-section-1233-rp-act

[54]1975 AIR 865

[55]V.R. Krishna Iyer, Human Rights and Inhuman Wrongs (Delhi: B.R. Pub. Corp., Delhi, 1990), 16.

Case Comment on ADM Jabalpur v. Shivkant Shukla

CASE COMMENT: ADM JABALPUR v. SHIVKANT SHUKLA

Written by Vidit Mehra

2nd Year of 3 Year LL.B. Student, Symbiosis Law School, Pune

 

Citation:

(1976) 2 SCC 521; AIR 1976 SC 1207

Bench:

Ray, A.N. (Cj), Khanna, Hans Raj, Beg, M. Hameedullah, Chandrachud, Y.V., Bhagwati, P.N.

 

Introduction-

The said case pertains to the time of Proclamation of Emergency by the then ruling government of Indira Gandhi and Presidential order of the same was issued when election of Indira Gandhi were termed to be illegal. The case arose out of a contention that whether the right of a person to approach respective High Court gets quashed when his fundamental rights are not given or suppressed, especially Article 14, and 21 during the emergency and enforcement of such rights remain suspended for the period of Proclamation of Emergency in force. The judgment was delivered on April 28th, 1976 by the Constitutional bench of five judges including the then Chief Justice A.N. Ray, out of which four were in favour of suspension of such right and liberty and one dissenting rejected such contention. As far as majority of the judgment goes, it was established that a person’s right to approach High Court under Article 226 of the Indian Constitution for Habeas Corpus or any other writ challenging the legality of an order of detention at the time of Proclamation of Emergency remains suspended and that person cannot approach any High Court for the remedy or get his right. This case was infamously called as Habeas Corpus case. Till date, the decision taken by the Court holds badly on the ground of equity, justice and good conscious. The Latin term Habeas Corpus means “you may have the body” and writ of securing a person’s liberty is called Habeas Corpus.

Historical Background and Facts-

In State of Uttar Pradesh v. Raj Narain[1], the election of Indira Gandhi from Lok Sabha was challenged by petitioner on the grounds of corruption from her constituency, Rae Barelli. On June 12, 1975, Justice Sinha held Indira Gandhi guilty and declared her election invalid. After this judgment, Indira Gandhi moved to Supreme Court and asked for conditional stay on the decision of High Court. This made her handicapped on the floor of Parliament and she was losing her political footprint. The opposition on the other hand became powerful which made Indira Gandhi to declare Emergency under Clause (1) of Article 352 of the Constitution through the then President Fakhruddin Ali Ahmed and the Emergency was termed as serious due to “internal disturbance”. During that period, India suffered a war with Pakistan and faced drought which turned economy bad in shape. After the proclamation of Emergency, the fundamental rights under Article 14, and 21 remained suspended and proceedings pending in Court concerned with enforcement of these Articles remain suspended for the period of Emergency. Any person who was considered to be a political threat or anyone who could voice his opinion politically was detained without trial under Preventive Detention Laws. This situation led to arrest of several opposition leaders such as Atal Bihari Vajpayee, Jay Prakash Narain, Morarji Desai and L.K. Advani under MISA (Maintenance of Internal Security Act) because they were proving to be a political threat to Indira Gandhi. These leaders then filed petitions in several High Courts challenging the arrest. Many High Courts ruled in favour of these petitions which made Indira Gandhi government to approach the Supreme Court on this issue which infamously became Additional District Magistrate Jabalpur v. Shivkant Shukla. It is also called as Habeas Corpus because usually this is the writ filed in Court when a person is arrested. At the time of Proclamation of Emergency, this writ was not entertained as Rights under Article 21 remained suspended.

Issues-

The issues in the said case were-

  • Whether, under Proclamation of Emergency after President’s order, can the writ of Habeas Corpus be maintained in High Court by a person challenging his unlawful detention?
  • Was suspension of Article 21 fit under rule of law?
  • Does detenue hold locus standi in Court during the period of Emergency?

Rules-

Upon the issues, it was discussed by the State that the only purpose of Emergency in the Constitution is to guarantee special power to the Executive machinery which can hold discretion over the implementation of law and whatever State considers, it shall be held valid. Filing writ petition in High Courts under Article 226 are suspended and petitioners had no right to approach the Court for the implementation of the same and this would have logically dismissed such petitions. The fact that Emergency provisions in Part XVIII of the Indian Constitution including Article 358, Article 359(1) and Article 359(1A) are necessities in regard to economy and military security of the State. The validity of the law under Presidential Order cannot be challenged on the ground of violating fundamental rights which were suspended by such order. This answers all the issues like “Whether, under Proclamation of Emergency after President’s order, can the writ of Habeas Corpus be maintained in High Court by a person challenging his unlawful detention” for which the answer is No, one cannot approach the High Court for restoration of his fundamental right under any Article of the Indian Constitution. Upon the issue of locus standi, the petitioner holds no ground for any relief.

Judgment-

In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration.

  1. Section 16A (9) of the Maintenance of Internal Security Act is constitutionally valid;
  2. The appeals are accepted. The judgments are set aside;
  3. The petitions before the High Courts are now to be disposed of in accordance with the law laid down in these appeals.

The above said judgement was given by four out of five judges. They were the then Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The dissenting Judgment was given by Justice Khanna who ended his judgment by saying “As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed.” He paid the price of his opinion when his junior M.H. Beg was appointed as Chief Justice bypassing him in seniority. In M.M. Damnoo v. State of J&K[2]  the Court required the State Government to produce the file confining the grounds of detention so that the Court could satisfy itself That “the grounds on which the detenu has been detained have relevance to the security of the State”. It would, therefore, be seen that if there is a legislative provision which prohibits disclosure of the grounds, information and materials on which the order of detention is based and prevents the Court from calling for the production of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under Article 226 and would be void as offending that Article.

Analysis-

Upon the analysis of the judgment, there are multiple observations on the given case. The Supreme Court in this case observed that Article 21 covers right to life and personal liberty against its illegal deprivation by the State and in case of suspension of Article 21 by Emergency under Article 359, the Court cannot question the authority or legality of such State’s decision. Article 358 is much wider than the Article 359 as fundamental rights are suspended as whole whereas Article 359 does not suspend any rights. Even being Emergency provisions under Article 359 (1) grants special power and status to the Executive, it does not undermine the essential components of sovereignty of separation of powers, leading to a system of check and balance and limited power of the Executive. The nexus between State and Executive is erroneous and the effect of suspension of such rights will only result in extra power to legislature which might create laws against fundamental rights. This act should not be considered as a “power” of the Executive or right of it. There is a legal extent till which a State can act in or against the citizens and in this case, it was high misuse of power of personal political gain of a single person. During Emergency, it is nowhere mentioned that the power of State “increases” from its original power under Article 162. Also, State only holds the right of arrest if the alleged act falls under Section 3 of MISA and its every condition is fulfilled. If any condition is unfulfilled then detention is beyond the power of State. The decision by the Supreme Court is said to be the biggest erroneous judgment till date. The dissenting opinion of Justice Khanna still holds more value than the majority judgment including the then Chief Justice. The wrong intent of Indira Gandhi’s government was seen when Justice Khanna was to ask the first uncomfortable question. “Life is also mentioned in Article 21 and would Government argument extend to it also?” There was no escape. Without batting an eyelid Niren De answered, ‘Even if life was taken away illegally, courts are helpless’. Before Proclamation of Emergency there was strong political instability in the Country after the Lok Sabha election of Indira Gandhi was termed as illegal. This whole exercise was to put opposition under pressure and during the process, even Supreme Court made major errors in the judgement and it can be said to be purely unconstitutional. Only the courage of single judge is said to be worth reading and it was in favour of humanity and liberty. Justice Bhagwati was quoted as “I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind, without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at its altar, in order to secure it, protect it and preserve it. But I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the Constitution a construction which its language cannot reasonably bear.” The day when this judgment was pronounced, it was termed as “darkest day of the democracy” and it was matched with the regime and rise of Hitler. On top of all, this judgment did not favour rule of law. As a judge, the focus is on public benefit or on something which is good for population but this judgment seemed to favour only one person. The judgment in this case can be compared to the judgment of Raj Narain’s case where Indira Gandhi was given a clean chit by the Supreme Court after being held guilty by Allahabad High Court. One can say that common man’s trust on judiciary has been shaken by these two judgments which happened almost simultaneously. Justice Khanna solely relied on the judgment of Makkhan Singh v. State of Punjab[3] in which he noted: “If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside Article 359(1) and consequently outside the Presidential order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Article 359(1) and tile right of the detenu to move for his release on such a ground cannot be affected by the Presidential order”. Suspension of Article 21 would simply mean deprivation of right of life and liberty and this is against the basic right along with the Articles of Universal Declaration of Human Rights of which India is a part. This single case became example of how four able judges of the apex court of the country made a blunder under the wrong influence of the wrong person. The Supreme Court violated all fundamental rights with that decision. It was the darkest hour of Indian judiciary which struck at the very heart of fundamental rights. All four judges with the exception of Justice Khanna went on to become Chief Justices of India. In 2011, Justice Bhagwati expressed regret by saying: “I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.” Such acceptance from the judge mean how grave the situation was that time and what impact it left on India. The apex court recalled the comment of former Chief Justice M N Venkatachalliah in the Khanna Memorial Lecture on February 25, 2009 that the majority decision in the Emergency case be “confined to the dustbin of history”[4].

Aftermath of the judgment-

Soon after the Emergency and all which was done for it were rejected by the majority of population in 1977, the Supreme Court in Maneka Gandhi v. Union of India[5] changed the position and gave fundamental character to the right in Article 21 by establishing a link between Articles 14, 19 and 21 which was denied in A.K. Gopalan v. State of Madras[6] particularly in respect of Articles 19 and 21. Both these Articles cannot be separated and not exclusive of each other. It was further contended that the object of Presidential order under Article 359 was to remove legal problems and it was easier to make laws against fundamental rights. The obligation of the government to act according to the law and suspension of Article 21 did not automatically entail the suspension of rule of law. Following Shivkant Shukla Case, the Supreme Court in Union of India v. Bhanudas Krishna Gawde[7] went one step further and held that Presidential order issued under Article 359 were not circumscribed by any limitation and their applicability was not dependent on fulfilment of any condition laid before. These order impose a blanket ban on any and every judicial enquiry into validity of an order depriving someone of his liberty, no matter how it originated whether from an order directing the detention or from an order laying down the condition of his detention. The majority view in the Shivkant Shukla case has been completely negatived by 44th Amendment of the Constitution as well as judicial interpretation and therefore, it is no more longer a law. Now the enforcement of Article 20 and 21 cannot be suspended in any situation and the Court observed that Article 21 binds not only the executive but also the legislature and thereby correcting Justice Khanna’s stance that suspension of Article 21 relieves the legislature of its constraints but not the executive which can never deprive a person of his life and liberty without the authority of law and such detention can be challenged on grounds indicated in Makhan Singh Case. Articles 352 and 359 have not been invoked since revocation of Proclamation of Emergency in 1971 and 1975 in early 1977. Also, 44th Amendment changed “internal disturbance” into “armed rebellion” and internal disturbance not amounting to armed rebellion would not be a ground to the issue of Proclamation of emergency. Many such provisions in 44th Amendment for proclamation of Emergency were made so that no government in future can misuse this provision of Constitution which was interpreted unconstitutionally by the Supreme Court.

Conclusion-

The Proclamation and arbitrary use of power by the State machinery and taking away the personal liberty of a number of people along with judicial stamp can be considered one of the most erroneous judgment till date. Supreme Court went on to elaborate the interpretation of Article 21 and introduced Public Interest Litigation to gain public legitimacy after it faced criticism over the judgment and damage it had done. The wrong interpretation led to infringement of fundamental rights on whims and fancy of a political figure that had her agenda to fulfil. While the judgment is said to be a mistake on many occasions by jurists and apex court, the ruling has not been overruled formally even after admitting the error. This was noted by the bench of Justice Ashok Ganguly and Justice Aftab Alam. In today’s context, Dicey’s Rule of Law which was explained by Justice Khanna holds much greater force than what it was in 1976. There has to be a clear overruling of this judgment so that theoretical nature of Rule of Law can be made clear along with its applicability to our justice system. Also, further provisions shall be made to ensure that no political agenda should overshadow justice and equity of citizens.

 

 

[1] 1975 AIR 865, 1975 SCR (3) 333

[2] 1972 AIR 963, 1972 SCR (2) 1014

[3] 1964 AIR 381, 1964 SCR (4) 797

[4] Supreme Court regrets Emergency era verdict,, The Times of India, (Jan 3, 2011, 4:38AM), http://timesofindia.indiatimes.com/india/Supreme-Court-regrets-Emergency-era-verdict/articleshow/7206252.cms

[5] 1978 AIR 597, 1978 SCR (2) 621

[6] 1950 AIR 27, 1950 SCR 88

[7] 1977 AIR 1027, 1977 SCR (2) 719

The Controversy Of The National Language In India

WHAT’S KEPT IN A LANGUAGE?

THE CONTROVERSY OF THE NATIONAL LANGUAGE IN INDIA

Written by Priya Misra

Assistant Professor, National Law School of India University, Bangalore

This paper is meant to analyze the debate on the issue of national language under the Indian Constitution and its significance in bringing about social transformation. It discusses the controversy of the official languages and attempts to find a solution to the semantic debate.

 

India has a rich heritage in terms of languages and every language spoken, even by the most remote areas, is respected by the Constitution through the likes of Article 29 and Schedule VIII. “History demonstrates that, from times immemorial, India has been a multilingual country, each language having a certain region in which it was supreme, but none of these regions truly constituted unilingual kingdom or principality.”[1]

Broadly speaking, there are four major groups of Indian languages:

  • Indo-Aryan: Sanskrit, Hindi, Marathi, Bengali, Oriya, Assamese, Kashmiri, Nepali, Konkani, Punjabi and Urdu.
  • Dravidian: Telugu, Tamil, Kannada, Malayalam and Tulu.
  • Mongoloid: Manipuri, Tripura, Garo, and Bodo.
  • Tribal Language and Dialects: Gond, Oraon, Santal, Mundari, etc.[2]

In ancient India, Sanskrit was the most prevalent language especially during the period of Aryans who introduced it. There are evidences which show that Sanskrit was spoken by elite while the ‘low order’ people used Pali as a means of communication. With the arrival of Islamic rulers, the language became Persian in most of the regions of the then India. At the regional level, local dialects became popular which borrowed words from other main prevalent languages like Persian, Turkish, Arabic, etc. Gradually Urdu developed as a confluence of Persian speaking classes/foreigners and Sanskrit speaking locals.[3]

A few years later (1837), the British settled in India and English language overpowered Persian. Hindi and Urdu started to be used in courts for local residents. Initially, the British experimented with vernacular languages in courts and other Indian matters but later they found it more convenient to switch over to English.

The then prevalent classical languages-Sanskrit, Arabic and other indigenous languages suffered a drastic blow with the introduction of ‘Minute of 1835’ by Thomas Babington Macaulay as it injected English language in the Indian system and it trained the Indians to become hegemonic.[4]Most of the governmental functions began to be carried out in English too. Some eminent personalities of India also supported the introduction of English into the Indian system. For instance, Raja Ram Mohan Roy supported the introduction of English system of education so that an access could be gained into modern science and liberal education of Britain. But the tyranny of the British made Indians rebel in every respect. National language began to be seen as a symbol of unity and national pride and started to be considered as an important part of freedom struggle.

After independence, debate was mainly among three popular languages, viz. Hindi, Urdu and Hindustani. “Most of the regional languages like Bengali, Tamil, Marathi, etc were found to be not suitable in spite of their literary accomplishments, owing to geographical restrictions.”[5] These languages were not spread beyond a province/state.

It was proposed that Hindi should be made the official language of the country because it was the mother tongue of around forty percent of the people living in India and was understood by a large proportion of non-Hindi speaking population as well. This proposal ignited debates in non-Hindi states. Soon, it gave rise to agitations throughout the country. They argued why Hindi was being selected as the official language and why not any other languages like Tamil, etc, which had a considerable following as well. This was discussed in detail in the Constituent Assembly.

DEBATE FOR A SINGLE LANGUAGE

When the Indian Constitution was being framed in the Constituent Assembly, the question of choosing one language as the official language arose in the minds of the Constitution makers. The official language of the Central government was the single most divisive official issue in the Indian Constituent Assembly[6].There were two problems regarding Hindi being the official language: a) the dialect of Hindi; and  b)the other languages existing in India.

Hindi is spoken in around 13 different dialects. This is so because India was called Hind in ancient times. So every language spoken in Hind was referred to as Hindi. Gradually, Indians also started calling their languages Hindi which eventually led to the development of various dialects of Hindi. So debate arose as to which of the dialect was to be chosen as the official Hindi dialect. Later, Hindi dialect that was adopted was the one spoken in Delhi-Agra region with Sanskrit vocabulary.

However, that was a minor issue. The key issue which was to be tackled with before this was which language was to be chosen as the official language of the country.

Most of the members of Constituent Assembly wanted to fulfill Mahatma Gandhi’s dream who had opined that there should be a national language which would give a distinct identity to the nation. Dr. N.G.Ayyangar says in one of his speeches at the Assembly, “There was one thing about which we reached a fairly unanimous conclusion that we should select one of the languages in India as the common language of the whole of India, the language that should be used for the official purposes of the Union.[7]

They chose the most popular language of the country to be crowned as the official language of the Union of India. But the solution and road to that solution was not that simple. As soon as the proposal was laid down before the Assembly, many members of the assembly opposed it on the ground of it being unfair for the non-Hindi speaking population who’ll suffer in terms of employment opportunities, education and public services because of their non-Hindi background. Several arguments were raised for the inclusion and non-inclusion of Hindi language. Some of the members of the Constituent Assembly including L.K.Maitra and N.G.Ayyangar demanded that the regional languages should also be recognized (at State level) and the chosen national language should not be made exclusive. There were others like Lokamanya Tilak, Gandhiji, C. Rajagopalachari, Subhash Bose and Sardar Patel who demanded that Hindi should be used throughout India without any exceptions and the states should also resort to the use of Hindi language because it would promote integration.

There were other members who wanted Sanskrit to become the official language of the nation due to its antiquity and rich vocabulary. Also it was found that most of the Indian regional languages prevalent at that time were somehow connected to Sanskrit which is known as the mother of all languages. But the idea was not accepted by all. Some even proposed Urdu for the station but it was of no avail. This was so because as soon as the partition of India and Pakistan was announced, the supporters of Hindi were emboldened and since Pakistanis claimed Urdu as their language, the Hindi supporters coined the title of ‘language of secession’ to Urdu and made the demand to make Hindi, written in Devanagari, the national language.

Thus, the whole assembly was divided into two groups, one which supported Hindi and wanted it to become the official language and the other which did not favour Hindi to become the official language. The assembly was at loggerheads.

Introducing multiple languages as official languages was not considered feasible. Dr. B.R. Ambedkar was quoted as saying, “One language can unite people. Two languages are sure to divide people. This is an inexorable law. Culture is conserved by language. Since Indians wish to unite and develop a common culture, it is bounden duty of all Indians to own up Hindi as their official language.”[8]

Ultimately, when the Constituent Assembly was on the verge of losing its unity, a compromise called Munshi-Ayyangar formula was adopted without dissent. It was a half hearted compromise because no group got what it wanted.[9]According to this formula, English was to continue as the official language of India along with Hindi for a period of fifteen years but the limit was elastic and the power of extension was given to the Parliament. A statute titled ‘Official Languages Act, 1963’ was enacted when the period of fifteen years was about to expire in an attempt to prevent agitation in the non-Hindi speaking States. But the provisions of the Act could not satisfy the views of the protestors.

Here, reference to Shastri’s stand on national language is necessary. Lal Bahadur Shastri, Nehru’s successor as prime minister, did not pay much heed to the opinion of non-Hindi groups. He, instead of effectively countering the fears of non-Hindi groups that Hindi would become the sole official language, declared that he was considering making Hindi an alternative medium in public service examinations which meant that although the non-Hindi speakers would still be able to compete in the all-India services in English medium, the Hindi speakers would have an added advantage of being able to use their own mother tongue Hindi as a medium. This increased the fury of the non-Hindi groups and they became more anti-Hindi and later also raised and popularized the slogan of ‘Hindi never, English ever’. Thus Lal Bahadur Shastri only gave air to the blazing agitation of the non-Hindi groups against Hindi.

The Official Languages Act was ultimately amended in the year 1967 by Indira Gandhi’s government which provided for indefinite usage of English and Hindi as the official languages of the country. There were subsequent agitations in 1968 as well as in 1986 but they were limited to certain states only.

As far as the numerals are concerned, the international form of Indian numerals were chosen after a debate and a proviso was attached to it that after a period of fifteen years, the Parliament could replace the system by Devanagari form of numerals.

CONSTITUTION IN RELATION TO LANGUAGE

India is a multilingual country. So the fathers of our Constitution felt the need to specify the languages to be used in the state functions. Therefore, Part XVII of the Indian Constitution came into existence which not only provides for the official language of the Union(Article 343-344) and official languages of the states(Article 345) but also the language of interstate-communication (Article 346-347), language to be used in the courts and in legislative processes (Article 348). Apart from these provisions, there are some special directives too (Article 350-351). Actually, this chapter is based on Munshi-Ayyangar formula and accordingly the language policy has been provided in four parts: Language of the Union, Regional languages, Languages of the Courts and Special directives.

Language of the Union : As per Article 343, the official language of the Union of India is Hindi in Devanagari script. It had always been the intention of the Constitution makers to replace English with Hindi as and when Hindi is developed enough to be able to replace English in all the aspects where it was being used at that point of time since last 100 years. But a period of 15 years, from the date of commencement of the Constitution, was provided as an interim period for its usage as official language after which Hindi was to be the sole official language of the Union. However, when the period of 15 years was about to end, the Parliament found that the time was not still ripe to enforce Hindi as the only official language. Also, there were probabilities of violence in Southern India where people were still not ready to accept Hindi as the national language. So, the Parliament, in exercise of its powers under Article 343(3) and 120(2), passed the Official Languages Act 1963 which provided for the continuation of English as the official language in addition to Hindi for all executive functions of the Union and for all legislative functions of the Parliament[10]. But this Act does not restrict in any way the progressive use of Hindi and its promotion as the official language.

In the case of Union of India v. MurasoliMaran[11]the Supreme Court held that extending the time for the usage of English language does not amount to abandonment of progress in the use of Hindi as the official language of the Union. It also upheld the Presidential order which required the administrative personnel to undergo in-service training in Hindi before a certain date, free of cost and with no penalty for failure to undergo such training, as a valid exercise of power provided under Article 343(2) for the promotion of Hindi. The Court said that such order did not impose disability or unreasonable obligation on any class. Instead, it insisted on equal efficiency in occupations.

Since the proviso under Article 343 provides that the President may issue orders for the use of Hindi, the same was exercised by the President from time to time as following:

  • 1952: Through this order, Hindi was authorized to be used in addition to English for the purpose of issuing warrants of appointment of Governor of a state and judges of Supreme Court and High Court.
  • 1955:Order was issued for the use of Hindi in addition to English for the purpose of “correspondence with the public, preparation of reports of administration, office journals and reports to parliament, government resolutions, recommendations and legislative enactments, correspondence with state governments that have adopted Hindi as official language, treaties and agreements, correspondence with foreign officials and envoys and consular representatives and Indian representatives to international organizations.”[12]
  • 1960: The order provided for the usage of Hindi language in the training of administrative personnel.

Since Hindi was not considered adequate to replace English, provision was made for its development under Article 344 which provides for the constitution of a Commission on Official Language with the function of making recommendations to the President about the progressiveness of Hindi language for the official purpose of the Union, restrictions on the use of English, language to be used in courts and for Acts, Bills, etc. Sub-clause (3) of Article 344 indirectly shows the difficulties involved in the transition process from English to Hindi as miscommunication was easily possible. Even the Constitution of India could not be translated in Hindi at that point of time.[13]For this purpose due regard was to be given to the cultural and scientific advancements of India, and the just claims and the interests of persons belonging to the non-Hindu speaking areas by the Commission. Also, a parliamentary committee, consisting of thirty members (twenty members from the Lok Sabha and ten from the Rajya Sabha) elected by the respective houses, was to be formed for examining the recommendations of the Commission and to report their opinion to the President.

Regional Languages : Articles 345 to 347 provide for the recognition of the regional languages by the States in the official functions. These Articles become significant because India has been redrawn on linguistic basis and therefore regional languages are prominent in all the states. Article 345 gives the authority to the state to choose and adopt any regional language for its official use. Such language may or may not be enlisted in the Eighth Schedule. Also till such law is made, English shall be language of such state.

A Closer Look at India’s languages (Infographic), Credit: Daytranslations.com

Article 345 is permissive because it does not prohibit English after the adoption of Hindi and therefore it does render void an order already made or any other official proceedings just because they were done in English language. But this can happen if the State legislature makes a provision in this respect barring the usage of English.[14] For the purpose of inter-governmental communications, English was to be used but for communication between Centre and State, official language was to be used. Conversely, the states could agree to use Hindi with each other. In other words, language adopted for official use in the Union was also the language to be used among the states for communication. However, if two or more states decided to use Hindi as a language of communication between them, they could do so.  Article 347 provided that , “where on demand being made in that behalf the President is satisfied that a substantial proportion of the population of a state desires the use of any language spoken by them to be recognized by the state, he may direct that such language shall also be officially recognized throughout that state or any part thereof for such purposes as he may specify.”In resolving the majority –minority tussle in the matter of language at the regional level arising from limitations of linguistic organization of states, this provision is instrumental. It helps in ensuring bilingual policy.

The use of the words ‘shall’ and ‘may’ in Articles 343 and 345 respectively, has created a controversy. On one hand, Article 343 states that “the official language of the Union shall be Hindi”, on the other hand, Article 345 provides discretionary power to the States and provides that “the legislature of the State may by law adopt any one or more of the languages in use in the State or Hindi …for all or any of the official purposes of the State”. Thus providing two contradictory provisions, a situation of conflict has been created among the States and between the States and the Union on the use of the language of Hindi as the official language.

Special Directives : Chapter IV of the Indian Constitution deals with special directives intended to protect the interest of the minorities in terms of languages. Article 350 provides that a person can submit a representation for the redressal of his grievance in any language of the Union or the State no matter to which officer of the Union or State it is addressed to. Article 350A issues a directive to the State and the local authorities within its limits, to make an endeavour to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups. This Article was added incorporated in the Constitution through the seventh amendment.[15]

Article 350B provides a directive for the appointment of a special officer by the President for linguistic minorities to investigate matters relating to safeguards to which the linguistic minorities are entitled as per the Constitution provision. Article 351 provides for the development and promotion of Hindi language as a medium of expression for the composite cultures of India and to draw vocabulary from Sanskrit and other languages. Thus, there were two aspects: a) efforts for the promotion and spread of Hindi b)it should be broad to include linguistic elements from other regional languages to symbolize the ‘composite culture of India’. Pt. Jawaharlal Nehru[16] said regarding this provision that he would not have accepted Hindi as the official language if this provision relating to Hindi not excluding Hindustani and borrowing vocabulary from other languages would not have been there.

Language of the Courts : Chapter III of the Constitution of India provides for the language to be used the Supreme Court and High Courts as well as for Acts, Bills, etc. Article 348 says that the language of the courts shall be English though the Governor can authorize the use of Hindi or any other language for the official purpose of the State and for the proceedings before the aforesaid courts. But the judgments, decrees and orders of the courts shall be in English. It was analyzed that “by virtue of Article 348 (1) (b) since authoritative text of all orders, rules, regulations and bye-laws issued under Constitution or laws and all the Acts, bills, ordinances promulgated by the President or Governor shall be in English Language for the purpose of proceedings before the Supreme Court and High Court, Article 394-A does not put Hindi version on a pedestal equal to that of English text for the application in courts.”[17] The courts were to continue using English. The reason was mentioned by Mr. Ayyangar who said,

Our courts are accustomed to English; they have been accustomed to laws drafted in English; they have been accustomed to interpret in English. It is not always possible to find proper equivalent to an English word in the Hindi Language and then proceed to interpret it with all the precedents and rulings which refer only to the English words and not the Hindi words.”[18]

Also it must be noted that the time boundation of 15 years for the replacement of English by Hindi was not applicable to the proceedings of Supreme Courts and High Courts.

In Mathura Prasad v. State of Bihar[19], the High Court of Patna held that non publication of English translation of a statute, which was originally in Hindi did not violate article 348 (1) (b)(iii). A recent Law Commission Report (216)[20] has also recommended the continuance of English in courts.

Article 349 provides for a special procedure to be followed for the enactment of certain laws relating to language whereby the President shall not give permission to the introduction of a bill relating to language except after considering commission and committee formed under Article 344.

While the provisions for languages to be used in the legislatures have been provided under Article 120 and 210, the languages to be used by the judiciary and executive functions have been provided in the Part XVII of the Constitution of India.

Eighth Schedule : Eighth Schedule is the result of Munshi-Ayyangar Formula which recommended the Language Commission should include all the regional language in order to give them equal respect and to prevent them from being ignored. Eighth Schedule contains the name of the languages which have been recognized as the official languages. Two languages have been recently added through the 92nd Amendment[21] and at present there are twenty-two languages enumerated in the Schedule. This Schedule serves two purposes:

  • These languages are to be represented in the Official Commission.
  • Vocabulary can be taken from these languages for the development of Hindi as provided under Article 51.[22]

These regional languages gained importance after the reorganization of the states on the basis of languages during the period between 1956-1966.Though there’s no specific explicit criterion for the entry of a language in to the Schedule, following unwritten criteria is used:-

  • Existence of separate literary traditions
  • Possession of separate script
  • Concentration of large number of speakers of the language preferably over a continuous geographical area or in widely dispersed situation, being medium of expression of culture and heritage so that it may become a resource language for modernization of other literary languages.[23]

Inclusion of these languages in the Schedule gives an identity as well as emotional satisfaction to the speakers and supporters of those languages.

In the case of KanhaiyaLalSethia v. Union of India[24], the Supreme Court said that “to include and not to include a particular language in 8th Schedule is a policy matter of the Central government and the court cannot interfere in the matter.” Further, it was observed that no one has any fundamental right to compel the Center to include a particular language.

ENGLISH v. HINDI- The Debate

India has still not been able to materialize its dream of arriving at a single language which could identify with the whole nation and one which is acceptable to each citizen.

Many scholars have suggested that English should be adopted as the sole official language of the nation as it is being used in official functions of the Union since last 162 years approximately and Indians are accustomed to the language. Also, “English knowing intelligentsia has contributed much not only to the formation of those modern institutions we value today but to the modern ideas of equality, liberty or progress.”[25] Thus, English language has the following benefits which may lead it to become the Official language of the land:

  • It is an international language and is spoken in maximum countries of the world. So, in India, English is looked up to as a carrier of liberal thoughts and western values. People associate it with employment and empowerment.
  • The knowledge sources are extensively available in English in each and every field.
  • Indian languages cannot compete with English in the fields of social and physical sciences.
  • All around the world, higher education is provided in English most of the time. “It is the persistence and almost complete monopoly of English as a medium of instruction at the reaches of higher education that generate pressure acting downwards on parents to enroll their children in English medium schools at an earlier age so that the children can withstand competition in higher education and gets access to quality jobs.”[26]

Also, as far as language of courts is concerned, the Law Commission’s Report (No.216) recommended the continuation of English in the Courts to secure uniformity. Some of the recommendations are given below:

  • Arguments are generally made in higher courts in English and the basic literature under the Indian system is primarily based on English and American text books and case laws. Thus, Judges at the higher level should be left free to evolve their own pattern of delivering judgments.
  • Every Court has the right to understand the law laid down finally by the Apex Court and at present, one should appreciate that such a language is only English.
  • The use of English language also facilitates the movement of lawyers from High Courts to the Apex Court since they are not confronted with any linguistic problems and English remains the language at both the levels. [27]

On the other hand, the supporters of Hindi language allege that for a part of the population of India, English is still a “symbol of slavery”. Dr.Ram Manohar Lohia said that English divides the nation into 2 castes: the English speaking, i.e. the powerful elite and the Bhasha-speaking, i.e. the vulnerable masses.

According to Ralph Fasold, “former colonial language is an absolutely atrocious choice as national language. Nothing could be a worse symbol of a new nation’s self-awareness than the language of a country from which it had just achieved independence.”[28]Therefore, Hindi is a better option as it is an indigenous language and identifies with a large proportion of the population of India. It has a rich vocabulary and is the successor of one of most ancient languages of the world, Sanskrit. Also Hindi is one of the most developed languages in India. The Official Language Commission’s report contained that Hindi was being chosen “not because it is better developed than the other regional languages; not because a greater or more varied wealth of literary output is available in it; not because it has presently a large availability of books in sciences and in different other branches of modern knowledge. It was chosen…because it happens to be understood and spoken by the largest number of people.”[29]

According to the 1951 Census, number of Hindi speakers in India was 149 million, i.e. 42% of the total population of the nation. But in this figure, Hindi, Urdu, Hindustani, and Punjabi were combined. This was the basis of the report of Official Language Commission, 1956. In 1961, there were 133 million speakers of Hindi exclusively which formed around 30% of the population of India (Annexure 1).The Census of 1971 provided that 38% of the population spoke hindi which increased to 42.9% in 1981.[30]

But it could not be taken up as the only official language of India because of the following reasons:

  • Politicians at play (Dravida Munnettra Kazhagam (DMK) came to power in Tamil Nadu because of its anti-Hindi protests).
  • Hindi was being imposed initially on the non-Hindi states. (Forcing them to learn Hindi which angered the people of these states).
  • Pro-Hindi enthusiasts who tried to push the issue to the extreme. Mr. Jawaharlal Nehru himself declared in the Parliament that it was the over enthusiasm of the leaders of the pro- Hindi groups which became a hurdle in the spread of Hindi.
  • Organization of the states on linguistic basis also created an obstacle in the path of Hindi as national language.

Therefore, Hindi had to share the title with English which still holds its position strong in every aspect of administrative arena. According to the 2001 census, According to the 2001 Census, about 422 million people speaking Hindi in its various dialects accounted for 41.03 per cent of the national population.[31]But Indians have learnt to adjust to both languages in this era of globalization. They use English for ideas, business and abstraction and use Hindi for daily communication like Nehru, who used Hindi with voters and to the nation in English.

For the promotion of Hindi, Department of Official Languages has been formed which formulates policies and annual programs and aids their implementation.

INTERNATIONAL SCENARIO

Multilingualism is not a feature unique to India. There are other countries in the world too which have multilingualism prevalent in their States and they also face problems in dealing with the issue of multilingualism as in India. They have come up with policies to tackle the problem of multilingualism and offer a common language of communication in official matters.

As far as France is concerned, French is the official language of the country but it is limited to the official purpose of the State and not to publications by writers. Though there are several regional languages existing in France, they have not been provided any protection by the government. France is fighting for cultural diversity against the flourishing empire of English in international arena. The French believe that all citizens are equal and thus, no groups can exercise extra rights over others which is totally different and opposite with the former ideology whereby the different ethnic groups were given protection and privileges.

The problem of multi-lingualism has been tackled in Europe through the European Charter for Regional or Minority Languages. It is European treaty which was adopted in 1992 by the Council of Europe for protection and promotion of historical regional and minority languages in Europe. What actions can be taken by the state parties for protection and promotion of historical regional and minority languages has been provided in the charter. Few, among many, languages protected under the European Charter for Regional or Minority Languages are Greek, Russian, Romani, Czech, Hungarian, Italian, German, Polish, Turkish, Serbian, etc. Thus, the Charter guarantees the right of the minority language speakers to use their language fully and freely. Interestingly, this treaty was not signed by France for the fear of disintegration and division of the country.

Multilingualism is not a novel concept in U.S.A too. The legislation of Canada is in French as well as in English. According to Article 111 of the Charter of U.N.1945, all the legislations are to be in five languages and all are considered authoritative texts and held in equal importance. Rule of harmonious interpretation is to be applied in case of conflict between these authoritative texts.[32]

“Language conflicts can be brought about by changes in an expanding social system when there is contact between different language groups. Belgium and French Canada are examples of this. The reasons for such a situation are the following: a dominant language group (French in Belgium, English in Canada) controls the crucial authority in the areas of administration, politics and the economy, and gives employment preference to those applicants who have command of the dominant language.”[33] Therefore the oppressed class retaliates by resistance.

China is fortunate in this matter.  There are around 56 ethnic groups in China, of which Hans, who speak Chinese language, form 91.96 per cent of the national population. On the other hand, from among the 55 minority ethnic groups, who speak other regional languages, only the Zhuang constitute more than 15 million speakers.[34]

The idea which can be gathered from the above analysis is that even if a country has a national language, it needs to provide for the protection of regional language because national language cannot be imposed on people otherwise there are chances of disruption of peace and this may prevent social transformation in a nation.

Significance of a National Language

A very important question which surfaces as soon as the topic of national language comes up, is what is the need of national language and what is all the hue and cry for.

The role of national language in the social transformation is of great value. It is the national language through which the society is sewn together into a compact and close built entity. The existence of a single language brings about togetherness and attachment in the society. Law Commission in its 216th Report (2008) agrees in the very first point that Language is a highly emotional issue for the citizens of any nation. It has a great unifying force and is a powerful instrument for national integration.[35]It is a very strong and influential instrument of social change. It has the ability to affect the thinking and social behavior of the people.

The aim of the Constitution makers in attempting to make India a monolingual nation was not to promote monopoly of Hindi by overthrowing other Indian languages. Instead they wanted to introduce ‘a pan-Indian language’ which could be used for governing India and which the citizens could use to communicate with others who did not speak their language.

Also, opting for national language brings about uniformity in the society. In Indian context use of a single language in executive and judicial functions can help to bring about uniformity and integrity in the country. Explaining the importance of a national language, the President of Constituent Assembly said-

There is no other item in the whole Constitution which will be required to be implemented from day to day, from hour to hour, I may almost say from minute to minute in practice. Even if we succeed in getting a particular proposition passed by a majority, if it does not meet with the approval of any considerable section of the people in the country whether in the north or in the south, the implementation of the Constitution would become the most difficult problem.”[36]

India has a unified judicial system whereby most of the laws are common throughout the nation and one High Court cites the judgments of other High Courts. Therefore uniformity is required in terms of language for easy interpretation and precedents.

According to Gandhi (Presidential Speech, Second Gujarat Educational Conference, Baroach, 1917), there were five requirements which needed to be fulfilled by a language to become a national language. These are:-

  • It should be easy to learn for government officials.
  • It should be capable of surviving as a medium of religious, economic and political intercourse throughout India.
  • It should be the speech of the majority of the inhabitants of India.
  • It should be easy to learn for the whole of the country.[37]

Gandhi considered the removal of English language from the official desks as of national importance. He wrote, “We should no more neglect thus destroy our own language. The English insist on speaking their mother tongue and using it for all their purposes. Let us do the same and thus raise Hindi to the high status of a national language.[38]

Anthropological Survey of India’s study titled ‘Peoples of India’ came to the conclusion that language is chiefly, the business of the citizens and not the government and linguistic integration needs to be attained at the popular level, rather than official level.

Basically, a national language is required to bring together, diverse cultures and ethnicities under a single roof so that a nation can develop easily and speedily with least friction. A close knit and integrated society develops at a faster rate as compared to a disintegrated society. Therefore, more internal conflicts imply slow social transformation and mono-lingualism goes to a great extent in minimizing internal conflicts.

CONCLUSION

The issue of national language has grown more complex than what the constitution makers had thought it to be. The issue of continuing the official language left over by the colonial masters and the choice of alternative/s in order to have indigenous identity and distinct national image become intricate question amidst complex public opinion and divided views.[39] The recent separation of Telangana as a separate state from Andhra Pradesh is also a result of lingual conflict. It is evident from this instance that a language has the power to make or break a country. People develop an attachment towards those who speak their language.

But the emphasis on national language cannot sideline the fact that regional languages should be given importance too and steps must be taken for their protection. After all, they signify different cultures of a nation and help preserving the ethnicity of a society. Gandhi ji also voiced his thoughts in this regard and said “Unless we give Hindi its natural status and Provincial languages their due place in the life of the people, all talk of Swaraj is useless.”[40]

It is with this view that Article 2(2) of the International Covenant on Economic, Social and Cultural Rights, 1966, prohibits discrimination on the ground of language. International covenant on Civil & Political Rights, 1966 also provides that “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language.”[41]

Even the Indian Constitution provides for protection of scripts and languages under Article 29 and prohibits discrimination of any kind on the basis of language under Article 14 and 16.In the case of V.N.Sunanda Reddy v. State of Andhra Pradesh[42],Supreme Court said that in cases where discrimination was made on the basis of language in the matter of access to public employment, it amounted to violation of right to equality under Article 16(1).

But caution must be taken not to emphasize too much on regional language as to put on stake, the integrity of a nation. H.M.Seervai says that Constitution is founded on emphatic rejection of the two-nation theory (which led to the formation of Pakistan) whereby difference in race, religion and language was sufficient to demand for a separate state. And it would be an irony if after rejecting such theory we end up accepting ten-twelve nation theory founded on the basis only of language.[43]

Though India has been unsuccessful so far as implementation of a single language as official language is concerned, the policy of bilingualism has somehow helped in restoring social harmony and national unity in so far as language is concerned.

But the truth remains that English is not the language of the masses. It was just a compromise to prevent disintegration of the country. It can never become the national language though it has played a vital role in bringing about social transformation in India. During the19th century, English language gave political unity to India. This political unity strengthened the freedom movement. Nevertheless, English can never make up the national identity as an indigenous language can.

The Preamble to the Constitution of India specifically provides for unity and integrity of the nation. Therefore, nothing should be done that would be inconsistent with the ideal. Thus, a harmonious incorporation of the two forces alone can lead to social development of the nation. It was with this reason that the ‘Three language formula’ was introduced in the Indian education system. The Three Language Formula is “a compromise between the demands of the various pressure groups and has been hailed as a masterly-if imperfect-solution to a complicated problem. It seeks to accommodate the interests of group identity (mother tongues and regional languages), national pride and unity (Hindi), and administrative efficiency and technological progress (English).”[44]Though it has not been very successful, the attempt to establish harmony among conflicting groups is commendable.

One can only hope that one day India will have a national language of its own. It will help the country carve a niche for itself in the world as a unique example of ‘unity in diversity’ and act as a catalyst in bringing about social transformation.

 

 

[1] S.M. Katre, cited by T.K. Oomen, Sociology, Lucknow: Eastern Book Co., 1993, p.331, as cited in P. Ishwara Bhat, Law & Social Transformation, Lucknow: Eastern Book Co., I edn, 2009, p.271.

[2]Suniti Kumar Chatterjee, Linguistic Survey of India: Languages and Scripts, Cultural Heritage in India, Vol I, Calcutta: Ramakrishna Mission, 2ndedn, 2001, pp.55-65, as cited in P. Ishwara Bhat, Law & Social Transformation, Lucknow: Eastern Book Co., I edn, 2009, p.272. See also S. Srinivasa Rao, India’s Language Debate and Education of Linguistic Minorities, Vol 43, E.P.W., p 64, Sep 6, 2008.

[3] It was later observed that The notion of Hindi and Urdu as two distinct languages crystallized at Fort William College in first half of 19th century and was given official endorsement in an order promulgated by NWP and Oudh government in 1900 requiring provincial officers to know both” as quoted in Santosh Kumar Khare, Truth about Language in India, Vol 37, E.P.W., p.4993, Dec 14, 2002.

[4]S. Srinivasa Rao, India’s Language Debates & Educations Linguistic Minorities, Vol 43, E.P.W., p.65, Sept 6, 2008.

[5]SalilMisra, The Urdu that was Hindi, The Times of India, editorial opinion page, New Delhi, July 14, 2005, as cited in Id.

[6] Granville Austin, The Indian Constitution: Cornerstone of a Nation, New Delhi:Oxford University Press, 1966.

[7]N. GopalaswamiAyyangar, Constitutional Assembly Debates, Vol IX, pp.1317-21, Sept 12, 1949.

[8] V.K.R.V. Rao, National Integration: Some Unresolved Issues, Bombay:BhartiyaVidyaBhavan, p.8, 1985, as cited in P. IshwaraBhat, Law & Social Transformation, Lucknow: Eastern Book Co., I edn, p.290, 2009.

[9] H.M. Seervai, Official language, Constitutional Law of India, Vol 3, 4 ed., Delhi: Universal Book Trust, p.2581, 2008.

[10]Article 3 of the Official Languages Act, 1963.

[11] (1977) 2 SCC 416: AIR 1977 SC 225

[12] T.K. Tope, Official language, Constitutional Law of India, 1992 edn, Lucknow: EBC Publishing Ltd., p.920.

[13] Granville Austin, The Indian Constitution-Cornerstone of a Nation, pp.281-283, as cited in H.M. Seervai, Official Language, Constitutional Law of India,Vol 3, 4 ed.,Delhi: Universal Book Trust,p.2582, 2008.

[14]Dayabhai v. Natwarlal, AIR 1957 MP as cited in M.P. Jain, The Federal System: Official Language, Indian Constitutional Law, p.429.

[15] Constitution (Seventh Amendment) Act, 1956, Section 21.

[16] As cited in H.M. Seervai, Official Language, Constitutional Law of India, Vol 3, 4 ed.,Delhi: Universal Book Trust,p.2581, 2008.

[17] P. IshwaraBhat, Law & Social Transformation, Lucknow: Eastern Book Co., I edn, p.312, 2009.

[18]Sri N. GopalaswamiAyyangar, Constitutional Assembly Debates, Vol IV, p.1321, 1949.

[19] AIR 1973 Patna 295.

[20] http://lawcommissionofindia.nic.in/reports/report216.pdf..

[21] Constitution (Ninety Second Amendment) Act, 2003, Section 2(a).

[22] M.P. Jain, The Federal System: Official Language, Indian Constitutional Law,4 ed., Nagpur:Wadhwa and Co.Law Publishers,p.428, 1994.

[23] P. IshwaraBhat, Law & Social Transformation, Lucknow: Eastern Book Company, I edn, p.307, 2009.

[24]KanhaiyaLalSethia v. Union of India (1997) 6 SCC 573:AIR 1998 SC 365.

[25] Andre Beteille, Language and Civilization, The Hindu, June 20, 2000, as cited in Prem Singh, In Defence of ‘Bhasha’ vis-à-vis the English Language, Vol 40, Mainstream, p.30, Mar 16, 2002.

[26]Mahesh Gavaskar, Politics of Language, Vol 37, E.P.W., p.5274, Dec 28, 2002.

[27] http://lawcommissionofindia.nic.in/reports/report216.pdf.

[28]Ralph Fasold, What National Languages are Good For, With Forked Tongues: What Are National Languages Good For? In Coulmas (edn), Singapore: Karoma Publishers, p.182, as cited at http://www.ling.upenn.edu/~jason2/papers/natlang.htm.

[29] Report of Official Language Commission, New Delhi: Government of India Press, 1956, as cited in B.LaxmiBai, Development of Hindi: Policy and Promotion, Language Education in Multilingual India, New Delhi: UNESCO,p.266, 2001.

[30]Id at p.267.

[31]S. Viswanathan, Language Issue Again: The Need for a Clear-headed Policy available at http://www.thehindu.com/opinion/Readers-Editor/article61129.ece.

[32]D.D.Basu, Official Language, Shorter Constitution of India,14 ed., Vol.2,Delhi:Lexis Nexis Butterworths Wadhwa,p.2149,2009.

[33]Peter Hans Nelde, Language Conflict available at www.univie.ac.at/europaeistik/LanguageConflict.DOC .

[34]S. Viswanathan, Language Issue Again: The Need for a Clear-headed Policy available at http://www.thehindu.com/opinion/Readers-Editor/article61129.ece.

[35]http://lawcommissionofindia.nic.in/reports/report216.pdf.

[36]T.K.Tope, Constitutional Law of India, 1992 edn, Lucknow: EBC Publishing Ltd., p.920.

[37]Jyotindra Das Gupta, Language Conflict and National Development, Berkley and Los Angeles: University of California Press, p.109, 1970, as referred to at http://www.ling.upenn.edu/~jason2/papers/natlang.htm. See also B.LaxmiBai, Development of Hindi : Policy and Promotion, Language Education in Multilingual India, New Delhi: UNESCO,p.275,2001.

[38]M.K.Gandhi, Thoughts on National Language, Ahmedabad: Navajivan Publishing House, p.9, 1945 (English 1956)B.LaxmiBai, Development of Hindi: Policy and Promotion, Language Education in Multilingual India, New Delhi: UNESCO, p.276, 2001.

[39] P. IshwaraBhat, Law & Social Transformation, Lucknow: Eastern Book Co., I edn, p.289, 2009.

[40]M.K.Gandhi, Thoughts on National Language, Ahmedabad: Navajivan Publishing House, p.13, 1945 (English 1956), as cited in B.LaxmiBai, Development of Hindi: Policy and Promotion, Language Education in Multilingual India, New Delhi: UNESCO, p.265, 2001.

[41] International Covenant on Civil & Political Rights, 1966, Article 27.

[42]1995 Supp (2) SCC 235.

[43]H.M. Seervai, Official Language, Constitutional Law of India,Vol 3.4 ed., Delhi: Universal Book Trust, p.2586, 2008.

[44]http://www.ling.upenn.edu/~jason2/papers/natlang.htm.

Article 356: Emergency Or Tyranny?

ARTICLE 356: EMERGENCY OR TYRANNY?

Written by Utkarsh Jain* & Bhavya Sharma**

*2nd Year B.A LL.B Student, Institute of Law, Nirma University, Ahmedabad

** 2nd Year B.A LL.B Student, Institute of Law, Nirma University, Ahmedabad

 

INTRODUCTION

 

Article 356 ‘The Proclamation of Emergency’ empower the president of India to impose state emergency if the state is not functioning in the way it should be as was incorporated in the Constitution of India keeping in mind the fact that there may be situation arriving where the state government may not function in the manner it is designed ascertained and reported by the governor of the concerned state or if the President concludes that ‘Constitutional machinery of the state has failed’. The president then can dismiss the State Legislature and Executive. Any provision which abrogates the basic principle on which the entire constitution depends that is the democratic freedom would create a doubt in the mind of people as to the government which is chosen by them is duly suspended. Having fought for the independence so long people of the country would have greatest interest in preserving all the freedom envisioned in a democratic society. Power contained in Article 356 are arbitrary and extraordinary, also a close scrutiny of the history of its application reveals that the article has no exception. At the time of incorporation clear guidelines were laid for the usage of the Article in the direst consequences but now a day’s Article 356 is seen as a weapon by the central government to show its domination upon a state government that does not comply with the views of the central government. It has been seen since mid 1990’s the proclamation of article 356 is been restricted as compared to the period prior to it. There may be a number of causes to explain the decrease in number. Although the number shows a positive effect of the guidelines given in S R Bommai v. Union of India but the misuse of the same is far from over. In the recent times there have been cases of Article 356 which were arbitrary and unconstitutional. Article 356 was designed to preserve the integrity, but is it being used at the cost of interest of democratic freedom.

 

 

 

 

 

 

HISTORY OF EVOLUTION

 

The thought which was emergent in the Constituent Assembly Debates was such that such emergency provisions are necessary for the protection of states when they are unable to maintain their constitutional machinery and will be used in the rarest of rare circumstances and in this manner we have made an attempt to trace its origin along with present provisions.

 

GOVERNMENT OF INDIA ACT, 1935

The concept was introduced by the name of ‘Division of Powers’ at the British India time. It was performed as an experiment in which the British government entrusted the provinces with limited powers over their provinces, but at that point of time the people of India were having a faded faith over the British man therefore the British took care and precaution to keep sufficient check on the powers given to the provinces. These powers were manifested under Section 45 and 93 of the Government of India act, where the Governor General and the Governor under certain circumstances can exercise nearly absolute power and control over the provinces.

 

  DRAFTING COMMITTEE OF CONSTITUENT ASSEMBLY

A drafting committee was set up by the constituent assembly on August 29, 1947 under the chairmanship of Dr. B. R. Ambedkar, it was to prepare Constitution of India. when it was suggested that the similar power to be confer of emergency as held by the Governor General on Government of India Act, 1935, upon the president, there was an oppose to the idea then Dr. Ambedkar pacified them by Stating :

‘In fact I share the sentiment expressed by my Hon’ble friend Mr. Gupta yesterday that the proper thing we ought to expect is that such articles will never be called into operation and they would remain a dead letter. If at all they are brought into operation, I hope the president who is endowed with those powers, will take proper precautions before actually suspending the administration of the provinces.

He added : ‘ I hope the first thing he will do would be to issue a clear warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the constitution.’[1]

As it was clearly stated by Dr. Ambedkar that the application of the article was the last resort to be applied and used in rarest of the rare events, as a good constitution is one which would provide solution to all possible exigencies. Therefore this article is a valve in case of disruption of political machinery in the state.

Article 355[2] states: ‘It shall be the duty of the union to protect every State against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provision of this constitution.’ The word ‘otherwise’ in Article 356(1)[3] was not included while drafting, but has been incorporated through an amendment despite a vast protest of the original Drafting committee, stating it to be open invitation for the abuse the Article. This was justified by Dr, Ambedkar stating that Article 355 imposes a duty upon the Centre to ensure that the states are governed in accordance with the constitutional provisions and therefore it would not be good for the president to base his decision solely on the reports of Governor of the concerned state.

 

ARTICLE 356 OF CONSTITUTION OF INDIA AND SECTION 45 AND 93 OF GOVERNMENT OF INDIA ACT, 1935

There are certain distinction in the provision of the failure of constitutional machinery under the current Constitution and powers dealt under Section 45 and 93 of Government of India Act, 1935. The Act empowered the Governor-General to deal with failure of the constitutional machinery at the centre (Section 45). It also empowered the Governor General to deal in with the similar situation in a province. The current Constitution does not intend to suspend the Constitution of the concerned state, in spite has empowered the President to take measures in the regard, although he have to act on the report provided by the Governor of the concerned state. Secondly, under Section 93 of Government of India Act, 1935, the powers of Executive and Legislative could be assumed by the Governor whereas in current Constitutional Provision it has been separated that is the President assuming the Executive powers and the Union Parliament assuming Legislative powers[4].

 

SARKARIA COMMISSION REPORT, 1987

In spite of such high benchmarks setup by the guidelines lay down in Art. 356 the article has been invoked more than 100 times after the independence which clearly signifies loophole in either the system or on the application of the article. It was only in the Sarkaria Commission submitted its report that the obscurity surrounding Article was cleared. The commission was headed by Justice R.S. Sarkaria. The commission took nearly 4 years to come up with the views for improving the centre-state relationship.

The commission recommended extremely rare use of Article 356. According to the commission Article 356 provides remedies for a situation where there is an actual breakdown of the constitutional machinery. Any misuse or abuse of the power would damage the democratic theme of the constitution. The commission after reviewing suggestions placed before by several institutions decided that Article 356 should be used as the last measure, when all available alternatives had failed to rectify or prevent the breakdown of constitution machinery in a state, all attempts should be made to resolve the crisis at the state level itself.[5]

According to the report submitted, these consequences must be used only in the cases of extreme situations, where failure of Union to take immediate action under Article 356 would lead to disastrous consequences. The report also recommended that a warning to be issued to the state, in specific terms that it is not carrying on the government of the state in accordance with the Constitution. Before taking action, explanation received from the concerned state should be taken into account. However this is not possible to apply in the situation in which not taking immediate action would lead to disastrous consequences.

The map[6] shows the total number of time Article 356 had been invoked in India.

In a situation of political background, the Governor is obliged to explore every other possibility of government enjoying majority in the Assembly and if not possible at that moment of time and if fresh election can be held without delay then the outgoing ministry is requested to continue as a caretaker government, provided that it do not have allegation of maladministration or corruptive practices. The Governor than dissolves the legislative assembly, leaving the resolution of crisis to the electorate.

Every proclamation of emergency is to be presented and laid before each house of parliament at the earliest, in any case before the expiry of the two month period stated in Article 356(3).[7] It was recommended that the State Legislative Assembly should not be dissolved before a proclamation is issued under Article 356 has been laid before the parliament and latter has the opportunity to review it. The report also recommends using safeguard that would enable the parliament to review continuance in force of proclamation.

The report should recommend appropriate facts and grounds over which the Article 356 can be imposed. Also this would make the remedy of judicial review on the grounds of malafide intention more meaningful and the check of parliament over the exercise of power of the Union Executive more effective. The governor report should be a ‘speaking a document, containing clear and precise statement of all the material facts and the ground so that the president may satisfy himself as to existence or otherwise of the situation contemplated in Article 356.’

 

 

PUNCHI COMMITTEE REPORT

The Government of India constituted a Commission on Centre-State Relations under the chairmanship of Justice Madan Mohan Punchhi, former Chief Justice of India on 27th April 2007 to look into the new issues of Centre-State relations keeping in view the changes that have taken place in the polity and economy of India since the Sarkaria Commission had last looked at the issue of Centre-State relations over two decades ago.[8] The Commission examined and reviewed the working of the existing arrangements between the Union and States, various pronouncements of the Courts in regard to powers, functions and responsibilities in all spheres including legislative relations, role of governors, emergency provisions, sharing of resources including inter-state river water etc. The Commission made 273 recommendations in its seven volume report presented to Government on 30 March 2010.

Main guidelines in relation with Article 356

To prevent the misuse done by the governments in the name of state emergency and to keep intact the sanctity of the post of Governor so that h does not merely remain a puppet, the committee has laid down certain guidelines –

  • The commission has proposed “localizing emergency provisions” under Article 356 by suggesting that localized area can be defined as district or a certain part of district should be brought under the ambit of Governor’s rule rather than the whole state.

They recommended that even such provision should not be of duration of more than three months.

  • Regarding qualifications for a governor, this commission suggest that the nominee must not have participated in active politics for minimum couple of years. It agrees with the Sarkaria commission that governor should not be posted to the place from where he belongs.
  • This commission also criticizes arbitrary dismissal by saying“the practice of treating governors as political football must stop”.
  • There should be some major changes in the role of the governor – including fixed five-year tenure as well as their removal only through impeachment by the state Assembly. It even suggests that impeachment process should work on the same line as impeachment of President.
  • It has also recommended that the state chief minister have a say in the appointment of governor. This is said as against the arbitrary doctrine of pleasure of President by parliament.

FALL IN THE USURPATION OF POWER BY THE CENTRE

The imposing of Article 356 had decreased since mid-1990s.An undeniably higher number of states being ruled by parties other than that in power in central government. This occurred because of two factors: Emboldening of regional parties, and the intervention by the Supreme Court.

Rise of regional parties, the mid-1990s saw essential change in the nature of Union governments. Prior to this period, when coalition governments took control in Delhi, just a couple of national parties came to rule the legislature. The mid-1990s was set apart by the ascent of regional parties that loaned an increasingly opportunistic and volatile character to Indian polity. This implied the national parties were dependably vigilant for new territorial partners, and thus were careful about the use of Article 356 against their government. Other than having had coordinate political effect, the ascent of territorial parties likewise restored other institutional shields – the courts and the President – against discretionary use of Article 356. The table above shows [9]

 Source – Ibid to Figure1

There is an increase in regional parties in the parliament since mid – 1990, which have increase the weight of their opinion and voices. Also they have been the part of central cabinets since then. Every central cabinet in power since then have had ministers from 5 to 10 parties excluding 16th Lok Sabha election. The regional parties had made several coalitions Government which have played a significant role in restraining the central usurpation of state governance in India. firstly they reoriented the central government politically, spurring its fragmentation in ways and secondly regional parties have tended to form opportunistic alliances and have forced the national parties to be cautious in imposing direct rule to the state.

The Dominant party thesis also has a significant role in the use of Article 356. The theory specify the present of dominant national party like Congress party which formed the central government uninterrupted until 1977. The party was able to abuse the power under article 356 and used the same to dismiss the opposition ruled state government or to dissolve state assemblies when opposition parties were poised to form the state government. It can be seen from the table above. Out of the 115 times Article 356 had been invoked, Congress or alliances having Congress was in power at the center 84 times which counts more than 73% of the times when Article 356 had been invoked in the country. The Janata alliance was in power when Article 356 was imposed 16 times. Interestingly, the Janata alliance was in power only for 2 years between 1977 and 1979, but recommended president’s rule 16 times. BJP or a BJP led alliance recommended President’s rule 7 times followed the National Front Alliance that recommended President’s rule 6 times. The United Front alliance (1996 to 1998) recommended President’s rule only twice during its two year tenure.

JUDICIAL REVIEW

 

S.R. BOMMAI V.UNION OF INDIA

 

S.R. Bommai v.Union of India is considered to be the landmark in the history of Indian Constitution. This case clearly marked out the limitation and paradigm within which Article 356 was to function. Soli Sorabjee, eminenet jurist and former Solicitor-General of India says ‘After the SC judgement in the S.R. Bommai v.Union of India[10], it is well settled that Art.356 is an extreme power and is to be used as a last resort in cases where there is a failure of constitutional machinery or has collapsed.

The summary of the conclusion in S.R. Bommai v.Union of India of the illustrious judges deciding the case, given in Paragraph 434 is:

  1. Article 356 confers power upon the president and to use them only when he is satisfied that the situation has arisen where Government cannot be carried in accordance with the provision in the constitution. The power is vested with Union council of ministers with the President as its head.
  2. The power conferred to the president is a conditional power and is not absolute in nature. There must be satisfaction on the part of President on the report of the governor and must be formed on relevant material.
  3. The President shall exercise only after the proclamation is approved by both the house of parliament. Until such approval President can only suspend the Legislative Assembly by suspending under the provision under sub-clause (1). The Assembly is not a matter of course, it should be dissolved only where it is found necessary for achieving the purpose of proclamation.
  4. Proclamation can be issued only when the situation contemplated by the clause arises {clause (1)}. There is no chance for holding that some powers are to be exercise by the president and some powers and authority by the State Government. There cannot be two Government at one Sphere.
  5. Clause (3) of Article 356 is conceived to be a check on the power of President and also as a safeguard against the abuse. If in case both the houses of Parliament disapproves or do not approve the proclamation, the proclamation lapse at the end of 2 months. In such situation the government suspended is revived. The acts done, order made and law passed during the period do not become illegal or void. However they are subjected to review, repeal and modification by the authority in-charge. If the proclamation is approved by the houses of Parliament then the suspended Government/Legislative assembly does not revive
  6. The proclamation is not immune from the judicial review. The Supreme court or the High court can struck down the proclamation if it is found to be mala-fide or irrelevant in that situation. When called upon the Union of India has to produce the material on the basic of which action was taken. The court will limit itself to check whether the fact is relevant or not and wouldn’t go into for checking the correctness of the facts.
  7. If the court has power to strike down the proclamation, it has the power to revive the Government and the Legislative assembly dismissed. The court has power to declare that the acts done, orders passed and laws passed during the period of proclamation would remain unaffected and shall be treated as valid.

In the case, the apex court cited the strengthening of regional parties to posit that it was no longer the prerogative of Union government to determine the quality of governance in states, and dismissal of a state government run by a different party was bound to raise eyebrows. Guidelines laid down by the Supreme Court.

In the said case, the SC laid down certain guidelines so as to prevent the misuse of A356 of the constitution:

  • The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
  • Centre should give a warning to the state and a time period of one week to reply.

The court cannot question the advice tendered by the Council of Ministers to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only:

  1. a) Is there any material behind the proclamation?
  2. b) Is the material relevant?
  3. c) Was there any mala-fi­de use of power?

If the courts find that there is improper use of Article 356 then the court will provide remedy.

In the year 1995 President Rule was imposed on the State of Uttar Pradesh on Oct. 17, 1995 on the ground that no party or group was in a position to form a stable government. The centre acted on the report of the Governor that there was no possibility of a stable government. The Allahabad high court in the landmark judgment [11] of three Judges Bench, held that the presidential proclamation imposing President Rule under art. 356 in the state of UP and subsequently its approval by the Parliament is unconstitutional and was wholly based on irrelevant and extraneous ground and therefore is liable to be quashed.

After 2 years again on 19th Feb, 1998 President Rule was imposed on the State of Uttar Pradesh. The action of the Governor was challenged in the Allahabad High Court by one of the BJP Minister as the Kalyan Singh government was in power. The Court held that the recommendation of Governor for imposition of the President Rule was to be set aside and Status quo to be maintained. The High Court held that the Governor’s acted with mala fide intentions.    Similarly, President Rule in Bihar in 2005 was revoked. In the judgment of Rameshwar Prasad v. Union of India[12]  a five judge bench of the Supreme Court comprising of Chief Justice held that the Proclamation of the President in dissolving State Assembly was unconstitutional and based on extraneous and irrelevant grounds. The Court said that the Governor misled the Centre in recommending the dissolution of the state assembly and the council of ministers should have verified before accepting it as gospel truth.

Recently in the State of Uttarakhand on 27th March, 2016 the President of India under Article 356 of the Constitution of India proclaimed state emergency on reports of Uttarakhand assembly Speaker Govind Kunjwal disqualifying nine rebel Congress MLAs emerged on Saturday night, President Pranab Mukherjee dismissed the Congress government headed by Harish Rawat and placed the assembly under suspended animation on the recommendation of the Union Cabinet.[13]

The imposition of President’s rule in the state has brought the focus back on Article 356 of the Constitution – used and misused for decades by successive governments irrespective of their political ideology. The matter was brought before the Supreme Court[14]. The apex court upheld the decision of the High court of Uttarakhand, while laying down the official result of the floor test and was incidentally forced to step in on the functioning of the legislature. It was held that the floor test to be conducted and the result to be followed, for that time being the Proclamation would be imposed and post that it would be revoked.

In the State of Anuranchal Pradesh the Governor of the state Mr. J.P. Rajkhowa’s decided to advance the Assembly session to December 16, 2015 from 14th January, 2016 a move which triggered political unrest in the sensitive border State and culminated in the declaration of President’s rule on January 26 as it started on December 9, when a group of rebel Congress MLAs approached Governor JP Rajkhowa seeking to impeach Speaker Nabam Rebia. Their complaint was that he was trying to get them disqualified from the Assembly. The Governor agreed and called for an emergency session on December 16 to take up the impeachment motion. Congress protested the Governor’s action, but the Centre went ahead and imposed President’s Rule in the state invoking Article 356. In the special session attended by 20 rebel Congress MLAs, 11 BJP MLAs and 2 Independents at a community hall, the impeachment motion was passed and Pul was ‘elected’ as the Leader of the House.[15] The same day, the Speaker disqualified 14 Congress MLAs. The matter came to the Supreme Court[16] in which a five-judge Constitutional Bench, led by Justice J.S. Khehar, directed the immediate imposition of status quo ante as on December 15, 2015. Therefore the proclamation was revoked and the state government was given back the power. In this manner, Article 356 has been misused every then and now without much of relevant grounds.

The susceptibility of Proclamation emergency to judicial review is beyond dispute, because the power under Article 356 is not absolute. In judicial review the court have to just verify whether the situation is satisfactory or not. The grey part now revolves around the reach and scope of judicial review as there is no hard and fast rule applicable to all cases. It depends upon the factor, situation in which the Proclamation has been invoked.[17] However where it is possible the satisfaction can always be challenged on the ground of mala-fide or on irrelevant ground.

Judicial review of Proclamation under Article 356 was first tested in the case of State of Rajasthan v. Union of India. The Supreme Court being the ultimate interpreter of the Constitution has the power to review all the provision under the constitution. Although the Courts try to keep itself from political issues but this power does not enjoy blanket immunity from judicial review. In the case of Minerva Mills and Others v. Union of India[18] honourable Supreme Court dwelt with its power to examine the validity of Proclamation of Emergency. Court observed that it should not hesitate from performing its duty just because it involves political issues.

Thus we say that a lot has been changed in the power and authority of Article 356. It has evolved and changed drastically from Government of India Act, 1935 to Current Article 356 and from absolute power to a restricted one. From the cases like Bommai case and many others and also from the Sarkaria commission report a line has been drawn from use and abuse of the extreme power provided by this Article. Also we can conclude that, though limited, the Presidential proclamation under Article 356 is subjected to judicial review if misused.

 

Amendments pertaining to Article 356 of the Constitution

 

44th Amendment, 1978 restricted the scope of this Article. The amendment substitutes the word “six months” for the word “one year” as it existed originally. Thus it restored the position as it stood before the 42nd Amendment. A proclamation of Emergency will, if approved by the Parliament, continue for six months from the date of the issue. For further continuance it must be further approved by the parliament each time. It also added new clause (5) to Article 356 in place of existing clause (5) which is now omitted. This clause provides that a resolution for the continuance of the emergency beyond one year shall not be passed by either house of parliament unless-

  • A proclamation of Emergency is in operation at the time of the passing of such resolution and
  • The Election Commission certifies that the continuance in force of the Proclamation under Article 356 during the period specified in resolution is necessary on account of difficulties in holding general election to the Legislative Assembly of the state concerned.

Prior to this amendment there was no such condition imposed and the Government could extent the period upto maximum of three years without sufficient causes.

48th Amendment, 1984 amended clause (5) of the article and inserted a new proviso namely, “provided that in the case of the proclamation issued under clause (1) with respect to the State of Punjab, the reference in the clause to “any period beyond the expiration of one year” shall be construed as reference to “any period beyond the expiration of two years”. The proviso was enacted to meet out the special circumstances prevailing in the state of Punjab due to Akali agitation, the continuance of the Proclamation beyond the specified time was necessary. The Amendment make the conditions in the existing article 356 (5) inapplicable in case of State of Punjab. This was again amended with 64th Amendment Act, 1990. The act provided for the extension for another 6 months as the situation there was not favourable for holding Assembly elections. The amendment added a new proviso after clause (4) in Article 356 which substituted the words “three years and six months” for “three years” and also applied that conditions laid down in Clause (5) shall not applied with respect to the state of Punjab. The 67th Amendment Act, 1990 extended the period of President rule for further period of 6 months. Accordingly, it has substituted the words “four years” for the words “three years and six months” in Clause (4) of Article 356 of the Constitution.

 

CONCLUSION

 

“Power tends to corrupt and absolute power corrupts absolutely”.

Lord Aldon.

The invocation of Article 356 and usurpation of the state governance by the central government present a great challenge to country’s federal system and its functioning. It subverts the centre-state relationships and also undermines the democracy. Until 1990s the institutional safeguard set in place to check the arbitrary use of power by the state if the emergency provisions have failed. The ascent of regional parties and their presence in the Parliament and central cabinet however, imposed certain restraints on the central government. It can be seen that the rise in the regional parties has facilitated in the revitalization of the institutional safeguards put forth by the members of the Constituent Assembly members, curbing the central government to take over the state governance.

While we see the misuse of the Article 356 in imposing President rule, one other extreme was the failure of the Central government to impose the same. The government of Mr. Narendra Modi in Gujarat during the carnage following the Godhra train accident, in the State of Gujarat, it was a big question on the face of Union government as more than 1,00,000 persons on refugee camps and more than 30,000 people were charge-sheeted. It was a big question, whether these figures were not enough to compel the Central Government to take action under Article 355 and 356. It can be seen that the word in Article 356 that is “otherwise” becomes instrumental in such situation as in such situation cant it be sufficient to allow the president to act without waiting for the ‘Governor’s Report’.

It can be inferred that the lack of effectiveness of the safeguards against the abuse of the Emergency provisions. The proclamation could be biased as the party in power at the centre usually dominates the Parliament by a majority vote. Even a vote in Parliament declaring the Proclamation to be wrongful cannot undo the damage that is already done. The NCRWC advised that Article 356 should not be repealed, stating that it would create an imbalance in the Union and State relationship in upholding Constitutional governance, as in many situation the use of Article 356 is inevitable.

Thus in our opinion there is a need to implement the recommendation of Punchi committee and Sarkaria Commission to a large extent as they are plausible and feasible to implement which suggesets that governor should have a fixed tenure and should not be used as a mere football of the government and should be used in the rarest of rare circumstances.

  • The governor should be appointed on recommendation of the Chief Minister.
  • We suggest for giving a fixed term of five years to the governors and their removal by the process of impeachment (similar to that of the President) by the State Legislature.
  • The governor should have the right to sanction prosecution of a minister against the advice of the council of ministers.
  • We call for an amendment of Articles 355 and 356 to enable centre to bring specific trouble-torn areas under its rule for a limited period. Hence, we propose ‘localizing emergency provisions’ under which either a district or parts of a district can be brought under the central rule instead of the whole state. Such an emergency should not be for more than 3 months.

All these solutions can help in avoiding situations which has recently took a toll on Uttarakhand and Arunachal Pradesh thus maintaining the sanctity of the Article 356. Thus, we see that the issue of state autonomy has been a major issue in the dynamics of Indian federalism.

Therefore in the meantime, we have a institutional safeguard which cannot be overlooked, which is the power of the Supreme Court to have Judicial review, which has on more than one occasion shows that it is a power to be reckoned with. In this manner Article 356 in its correct sense can be used an emergency provision than a weapon of tyranny.

 

 

 

[1] National commission to review the working of the constitution, Sarkaria Commission Report, pp 930.

[2] INDIA CONST. Art. 355.

[3] INDIA CONST. art. 356, cl. 1.

[4]  S. R. Bommai v. Union of India, (1994) 2 SCR 644 : AIR 1994 SC 1918.

[5] Trisha Saxena, Misuse of judicial provisions in India, Legalindia.com, pg 4.

[6] http://www.livemint.com/Politics/SJ3mETZ7H1cjKNlodkcM8O/How-Presidents-Rule-in-India-has-been-imposed-over-the-year.html.

[7] INDIA CONST. art. 356, cl. 3.

[8] http://interstatecouncil.nic.in/iscs/punchhi-commission.

[9] Paul R. Brass, The Politics of India since Independence, New York: Cambridge University Press, 1990.

[10] (1994) 2 SCR 644.

[11] H.S. Jain and Others v. Union of India and Others, (1997) 1 UPLBEC 594.

[12] (2006) 2 SCC 1.

[13] http://www.hindustantimes.com/india/all-you-need-to-know-about-president-s-rule-in-uttarakhand/story-Uy0W8TiAxxLlQZPXDVORkO.html

[14] Union of India V. Harish Chandra Singh Rawat and Others., SLP(C) No. 11567/2016, SLP(C) No. CC 7915/2016 and   SLP(C) No.CC 7916/2016.

[15] http://indianexpress.com/article/india/india-news-india/supreme-court-verdict-on-arunachal-pradesh-nabam-tuki- congress-kalikho-pul-bjp-jp-rajkhowa-2910600/

[16] Nabam Rebia and Others.v. Deputy Speaker and Others, Civil Appeal Nos. 6203-6204 of 2016.

[17] State of Rajasthan v. Union of India, 1977 AIR 1361, 1978 SCR (1).

[18] (1980) 3 SCC 625.

The Debate Between Judicial Independence And Judicial Accountability

THE DEBATE BETWEEN JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY: WHO IS JUDGING THE JUDGES?

Written Maushumi Bhattacharjee* & Prakhar Galaw**

* 4th Year B.B.A. LL.B Student, Institute of Law, Nirma University

** 4th Year B.A. LL.B Student, Institute of Law, Nirma University

 

ABSTRACT

Through this article, the author tries to discuss about the imminent need for the accountability in the Indian Judicial system or the Indian Judiciary.  Accountability or Accountable means actions which require justifiable explanations for that particular action, to the people who are directly are indirectly related with the consequence of that action.

In recent times the actions and decisions of the Indian Judicial system in the matters of appointments, transfers, judgements and orders; calls for a serious question of accountability because of the widespread corruption. The Indian judiciary which is the guardian and protector of the constitution (law of the land) has itself fallen into the prey of corruption and nepotism which is against the preamble which forms the basic structure of the constitution which cannot be amended. Now the question is why the Indian Judiciary is entangled in so much corruption and nepotism. Answer to that is power, absolute powers which are held by the judiciary, which remain unchecked. And as the saying goes “power corrupts and absolute power corrupts absolutely” goes well with the Indian judicial system. All this is happening because of lack of judicial accountability. With powers like contempt of court the judiciary could terrorize anyone. They have many more powers of which they are not answerable to anyone. There some provisions like judges enquiry which does make the deviant judges accountable to an extent, but since the enquiries are done by the judicial committees themselves, the outcomes are biased and not very surprising. Moreover the impeachment procedure is so complex that not a single judge till date has been removed from his office.

This article tries to discuss about the issue of accountability in the judiciary in exhaustive manner taking into consideration the past present and future events related appointments .transfer, judgements and misuse of the post for personal benefits and also tries to discuss various solutions of accountability like national judicial appointment commission (NJAC).

 

INTRODUCTION

In India the Judiciary is the most important organ of the government which has the main function of rule adjudication which are made by the legislature i.e. the rule making body and are implemented by the executive body of the government. The judiciary is the 3rd and most important pillar of the Union followed by the legislature and the executive. The main principle behind such separation of powers is that each institutions in its own domain works for the maximum welfare of the citizens of the democracy, and judiciary is the watchdog which protects, preserves and enforces our fundamental and legal rights against the arbitrary violations. And the legislature and executive are accountable to the judiciary.

But the question is to whom the judiciary is accountable. Are the powers of judiciary unlimited? And if these powers are unlimited and absolute they would likely corrupt the institution, in short absolute power without accountability leads to corruption. Recently there were corruption charges against Calcutta high court judge Soumitra Sen who was found guilty of misappropriating large sums of money and Chief Justice of Karnataka High Court, P D Dinakaran, alleged for land grabbing and corruption but corruption in judiciary is not a new thing, it has always been there, only less talked and reported about in the mainstream media. But due to drastic increase in the case of corruption against the judiciary one needs to ask who is judging the judges?

In reality and practical sense there is no organisation which is acting as watchdog over the Indian judiciary. On paper there are many provisions in the advocates act; judge’s enquiry act etc. which prescribes codes of ethics, norms, enquiry provisions and many other procedures against the offenders, but all have proven their hollowness due to lack of implementation and nepotism within the judiciary which leads to acquittals.

The main argument which propends the current judicial system against the question of accountability is of the independence of judiciary. The independence of judiciary is another important concept which should be studied together with the concept of accountability. And since the judiciary is the public institutions, which is for the people, it should be accountable to the people. And work according to the provisions of the constitution, keeping an eye on the preamble which is the soul of the constitution.

 

INDEPENDENCE OF JUDICIARY

Independence of Judiciary is a very important concept which is mentioned in the constitution. It is the part of the basic structure of the constitution which cannot be sacrificed in any circumstance as judiciary is the adjudicatory body of the union, which acts as an umpire between the parties in the dispute (adversarial system). So for giving a sound, lucid and unbiased decision umpires should be free from any kind pressure from litigants, cabinet ministers, influential personalities, big corporations, rich businessmen and also criminal elements of the society.

When the framers of our constitution were anxious about the kind of judicial system or judiciary India must have, Dr. B.R. Ambedkar gave the answer to their concerns. He stated that:

“There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself and the question is how these two objects can be secured.”

Independence of judiciary essentially means that separating the judiciary from other organs of the government, that is, executive and the legislature. However, the major problem in understanding this independence is that, judiciary is independent from the legislature and the executive and not accountability. It also means independence of the judges that form the judiciary.

Independence of judiciary is needed because:

  1. Judiciary is the watchdog of Indian Constitution and it checks the functioning of other organs of the government.
  2. The judiciary plays a vital role in interpreting the provisions of the constitution and it is important that such interpretation is unbiased ad free from any sort of pressure from the executive or legislature.
  3. The judiciary is expected to deliver impartial justice. This is what makes it the most important organ of the government. It is important that the judgements are not influenced by any sort of political inflictions.

Independence of judiciary concept has however faced many criticisms and problems when it comes to appointment and transfer of judges. It is important that Judicial Independence and Judicial Accountability co-exist and go hand in hand in order to maintain harmony in the judicial system. Article 235 of the Indian Constitution gives power to the High Courts over subordinate courts, thus establishing a perfect example of judicial independence.

JUDICIAL ACCOUNTABILITY

Judicial accountability is nothing but a consequence of the concept of judicial independence. Accountability generally means to be responsible for one’s actions and decisions. Judiciary being the most important organ of our government is responsible for passing orders and judgements and providing justice to society. Thus it is absolutely essential that judiciary is accountable for its actions and decisions and is not compromised by biasness and corruption.

However, it is not clear whether the judiciary is accountable to anyone, as diplomatically stating, the judiciary neither stands accountable to the people or the two organs of the government. That being said, the need of accountability in the judicial system is evident. The judiciary has been given the right to award capital punishment to the law breakers. It is the organ of government that performs essential checks and balances and hence judicial accountability must be taken seriously.

Judicial accountability brings about transparency and it can only be achieved if the accountability is ensured and corruption in the system is brought to a stop. Many questions arise as to what has gone wrong with the system. Pt. Nehru has said in a statement, “Judges of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing about them.” Judges are also humans after all and can make errors all the time. So how can one achieve accountability in such a system?

Thus, the problems and solutions with judicial accountability have been discussed below.

 

ISSUES IN MAKING THE JUDICIAL SYSTEM ACCOUNTABLE

 

  1. IMPEACHMENT

 

Article 124(4) of the Indian Constitution specifies the process of impeachment that is removal of a judge of Supreme Court on the grounds of proven misbehaviour or incapacity. This is the only possible and available mechanism in the judicial system of making the higher judiciary accountable for their actions. According to the Judges Enquiry Act, 1968, a complaint against a judge can be made by passing a resolution signed by either 100 members of Lok Sabha or 50 members of Rajya Sabha. Then there is a three member committee two judges from the Supreme Court and the other chief justice of India. Investigations have to be made before passing a resolution. In the procedure for removal or impeachment of the judges, a resolution must be passed in each house of parliament by the total majority of members of the house and not less than two-thirds majority of the house present and voting. The process must take place in a single sitting. The resolution has to be presented before the president for his approval.

No judge has been impeached till date. However this does mean that there is no corruption in the system. The whole impeachment process is considered to be a failure as it is so lengthy and clumsy.

 

Justice Ramaswamy’s case:

This was the first impeachment case ever against a Supreme Court judge. Justice V. Ramaswamy was appointed as the chief justice of Punjab and Haryana High Court on November 12, 1987. He got promoted to Supreme Court in October, 1989. In 1990, there were complaints about him in press that he had spent a large amount of office money on himself and misused it grossly. In February 1991, 108 members of the Bharatiya Janta Party (opposition party), signed and submitted a notice of motion to the speaker of Lok Sabha for the removal of Justice Ramaswamy. However, Ramaswamy survived the impeachment because of the huge support from the Southern region MPs. 196 MPs voted for the motion which was less than what was required, that is, two-thirds. The motion failed regardless of the two yearlong proceedings that took place and unanimous votes from the opposition. Thus there is a very strong lesson to be learnt from the failure of this impeachment process, that is, this process of removal of judges is ineffective and obsolete. There is a dire need for an entire new system to restore judicial accountability and correct the failing standards of integrity of the judiciary. This case also demonstrates how corruption in judiciary was allowed to exist in the end. Ramaswamy was allowed to continue as a judge in the apex court of the country even after losing integrity in the public. The question we need to ask is, can the judgements made by a judge of such character be authentic?

Another issue is that the investigating committees also consist of judges and they are hesitant to charge their colleagues for corruption. They all work together like a union. The answer to this problem can be forming a National Judicial Commission, an independent body having its own investigating mechanism.

As already seen in the case of Justice Ramaswamy, a two-thirds majority is not the best option while dealing with such an important organ of the government that has such regulatory functions. A simple majority would prove to be more helpful for faster decision making.

 

  1. CORRUPTION IN JUDICIARY

Judicial corruption includes dishonest use or ‘misuse’ of judicial powers by the court authorities leading to unfair and unjust judgements. Due to corruption in judiciary, the public is deprived of the right to fair trial and right to equality. The judicial system of a country is responsible for keeping check over the functioning of other organs of the government and the functioning of the society. It is responsible for eliminating corruption from the country, but when corruption reaches the judiciary itself, it shows signs of a weak democracy.

India is the world’s largest democracy. Indian judicial system plays the important role of checks and balances over the executive and the legislature. However, corruption in Indian judiciary is a major threat and it largely diminishes judicial accountability. Citizens need to have faith that the country’s judiciary will provide them justice and equal protection by law. Here are some cases showing how corruption has crippled Indian judiciary:

 

Justice K. Veeraswamy’s case:[1]

Justice K. Veeraswamy was the chief justice of Madras High Court. A case was filed against him by the CBI under Prevention of Corruption Act, charging him for possession of assets inconsistent with his income sources. The Madras High Court referred the case to the Supreme Court for dealing with important issues of law. The Supreme Court laid down some stern guidelines for the protection of judicial independence.

  1. No F.I.R. can be registered against a Judge or Chief Justice of the High Court, or a Judge of the Supreme Court without the sanction of the Chief Justice of India in the matter.
  2. It was held that the Supreme Court is not a court of limited jurisdiction of only dispute settling, and that the court has been a law maker and it is the courts responsibility and duty to apply the existing law in a form more favourable to the independence of the judiciary.
  3. It was also said that any complaint against a Judge and its investigation by the CBI, if given publicity will have a far reaching impact on the judge and the litigant public therefore there is need of a judicious use of taking action under the Prevention of Corruption Act.

The Supreme Court’s judgement in this case has been criticized on the ground that this is sheer misuse of judicial independence and it completely overlooks the concept of judicial accountability. It provides an unfair shield to the judges for arbitrary behaviour and use of judicial powers.

Justice Soumitra Sen’s case:

Soumitra Sen is a former judge of Calcutta High Court. There were allegations against him that he had miss appropriated Rs. 32 lakhs as a court worker in a case from 1993 between Steel Authority of India Limited (SAIL) and Shipping Corporation of India. A three judge committee was formed which found him guilty of depositing public funds into his personal account. In 2006, he returned the money due to passing of the High Court order. A year later the Chief Justice of India, KG Balkrishnan recommended his impeachment to the Prime Minister. This was the 2nd case after the Ramaswamy case where the parliament initiated impeachment proceedings against a High Court judge. In 2009, 53 Members of Parliament passed a resolution in the Rajya Sabha for the removal of Justice Sen. In 2011 the Rajya Sabha passed the motion with a majority of 189 votes in fovor of the motion. Before the motion could be passed in Lok Sabha, Justice Soumitra Sen resigned. He was found guilty of miss appropriating public funds and misrepresenting the facts to the court.

Such corrupt judges diminish the accountability of judiciary in the eyes of the public. If such case is repeated then it would be a matter of grave public disgrace for the Indian Judiciary.

Ghaziabad Provident Fund Case:

This is serious case of embezzlement of funds and a wide scaled scam. Ashutosh Asthana, a Ghaziabad court official confessed before the court and blew the whistle by naming 36 judges involved in the scam. These included 1 Supreme Court and 10 High Court judges. After testifying against these 36 judges, he was surprisingly found dead in jail under suspicious circumstances. He gave a detailed account of the scam explaining how most of the funds were withdrawn as provident fund advances from the Treasury and used in purchase of household appliances. There was a miss appropriation of about Rs. 49 crore funds from the provident funds of employees. Due to lack of evidence, and death of a key witness the police found it extremely hard to investigate the matter.

Sexual Harassment Cases:

A retired Supreme Court judge and former Chief Justice of the Orissa High Court, Judge AK Ganguly was accused by a woman intern for sexually harassing her. He was found guilty by the three judge committee even though he continually denied all allegations. He resigned from the West Bengal Human Rights Commission in 2014.

In another recent case, a sexual harassment complaint was filed against Madhya Pradesh High Court judge SK Gangeela. The committee has investigated the matter and 58 Rajya Sabha MPs have passed a resolution for his impeachment.

Such cases of gross misconduct on behalf of higher judiciary judges are a shame for the Indian Judiciary. High court and Supreme Court judges that are supposed to provide justice to the society are themselves involved in such criminal activities is highly unfortunate. They must not be given the immunity from proper criminal proceedings. They must be tried like any other offender. If such cases keep on rising then there would be no accountability left in the judiciary.

Uncle Judges Syndrome:

There are many cases where lawyers have father, uncle or brother as a judge in High Courts and also in Supreme Courts. These lawyers charge exorbitant prices from their clients as they “know” the judge and can ensure a favourable order.

The former Union Law Minister, Mr Shanti Bhushan, has explained the term in a simplified manner. He stated, “Let’s say there are four judges whose sons are practicing as lawyers in the same court. Obviously, the son of A will not appear in his father’s court and son of B will not appear in his father’s court and so on. But they will appear in each other’s courts and there is a general understanding that if you help my son, I will help your son. This is happening in many cases”

Advocates that are not blessed with uncle-judges have no other option but to keep their mouths shut or else they will be ill-treated by the judges and will face hell in courts. Such criminal contempt is spread across the Indian judiciary and there is no morality left in the judicial proceedings. Sadly, justice has also turned into a game of money.

 

  1. CONTEMPT OF COURT

 

In a democracy, the people have the power. And the government bodies or judges, courts etc. are public servants or servants of people. Now, the power of contempt is given to the judges to allow the smooth functioning of the judiciary. However, that does not deprive the right of people of freedom of speech. They can criticise the judges all they want.

Article 19(1)(a) gives the right to freedom of speech and expression to the people. But article 129 and 215 give the contempt powers to judges and limit the rights of people. Contempt is generally defined as an act that critically harms the dignity of the court and lowers its authority. There can be two types of contempt: Civil and Criminal.

Civil contempt can be defined as wilful disobedience of any order, decree or discretion of the court. Criminal contempt can be defined as any publication or any act that lowers the authority and harms the dignity of the court.

The Contempt of Court Act has also been panned that it violates two of the fundamental rights, that is, right to personal liberty and right to freedom of speech and expression.

Arundhati Roy issue:

Arundhati Roy and Medha Pathkar were activists from Narmada Bachao Andolan who protested against the Supreme Court’s order of increasing the height of Sardar Sarovar dam by 90 meters which would further lead to destruction of nearby villages. Ms Arundhati Roy and other protesters participated in a dharna and gave a demonstration outside the court criticizing the court’s order. The Supreme Court without giving any prior notification or chance to be heard served Ms Roy with a notice of contempt of court and violation of principles of natural justice. Their advocate Mr. Prashant Bhushan stated that the court had abused its powers of contempt. Ms Roy was merely practicing her rights of freedom of speech and expression. The court’s order clearly violates her rights. The court without any justification cannot practice its powers of contempt arbitrarily. How does that justify judicial accountability?

Recently the laws of contempt have been relaxed in U.S. and U.K. In US the defence against the order of contempt is to provide truth. The contempt order must not pose any danger in the administration of justice.

Judiciary can earn respect only by being accountable for its actions. If criticising the judges’ decision amounts to contempt then protests against the legislature and executive will also have the same cause, as they are also public servants. There is no doubt that the proper functioning of judiciary must be ensure but should it be at the cost of people’s rights? Is there no way to stop the judiciary from arbitrarily using its powers of contempt?

 

  1. RIGHT TO INFORMATION(RTI) AND JUDICIARY

In the famous judgement of Indira Gandhi v Raj Narain, the Supreme Court stated the importance of Right to Information and explained eloquently how the right was guaranteed to individuals by the constitution. The Supreme Court held that right to receive and impart information is a part of the right to freedom of speech under the constitution. The court rejected the government’s claim for privacy over the Blue Book that contained information about security measures for Prime Minister in Indira Gandhi’s case. The Supreme Court stated that the government had a responsibility to not keep any secrets regarding public functions and disclose all information that is related to public functionaries.

However the Indian judiciary has shown some serious hypocrisy and double standards about practicing Right to Information. If the Right to Information Act is applicable to the legislative and the judiciary, then how is the judiciary exempted from its provisions? Why does judiciary get special treatment?

The double standards of courts can be clearly seen after the Right to Information Act has been enacted. The RTI Act clearly applies to the judiciary that is court officials or judges as they are also included under the definition of public servants.

So, when Subhash Agarwal, asked for the disclosure of information on Supreme Court judges and whether they were complying with the Code Of Conduct, the Public Information Officer asked the court to provide information regarding the same from the Chief Justice’s office to the applicant. But in response, a writ petition was filed in Delhi High Court claiming that such information cannot be disclosed as it was communicated by the judges to the CJI under “fiduciary relationship”.

The judiciary will always play the card of judicial independence to escape judicial accountability which cannot be tolerated.

 

  1. JUDICIAL ACTIVISM OR JUDICIAL OVERREACH?

 

Judicial activism has recently been seen trespassing its limits and turning to judicial overreach. Judicial intervention in matters of labour policy, ecological and environmental policies, fiscal policy etc. tends to look like judiciary oversteps its authority and interferes with the functioning of the legislature and executive. This is called judicial overreach. Justice JS Verma once stated, “Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should neither be judicial ‘adhocism’ nor judicial tyranny.”

It is essential for the smooth functioning of democracy that the difference between “judicial activism” and “judicial overreach” is clearly recognized. The lack of accountability requires judiciary to step back and restrain in its activities.

 

  1. APPOINTMENT OF JUDGES

Over the course of three judges cases the court evolved the concept of judicial independence to mean that no branch of state, that is, executive or the legislature will have any say in the appointment of judges. The court created the collegium system and put it in function giving exorbitant powers to the senior judges to select and refer the appointments to the government. This whole process is arbitrary as it leads to political favouritism when the appointments are in hands of the executive and judicial overreach when they are in hands of the judiciary.

 

SOLUTIONS TO PROBLEMS

 

  1. FORMATION OF NATIIONAL JUDICIAL COMMISSION(NJC)

 

The 80th and 121st Law Commission Reports of India have made the suggestion to form NJC. It is supposed to consist of 5 members:

  1. One member nominated by all the Supreme Court judges
  2. One member nominated by the Chief Justices of the High Courts
  3. One member nominated by the cabinet of ministers
  4. One member nominated by the speaker and the Leader of Opposition of both the houses
  5. The last one member nominated by Chief Vigilance Commissioner of the Central Vigilance Commission (CVC), Comptroller and Auditor General (CAG) and the Chairperson of the National Human Rights Commission (NHRC)

 

The NJC shall have its own investigative mechanism that shall investigate in the matters of removal of judges. Also the NJC will select the judges for appointment in HC and SC, the information of which will be available to the public. In this way the independence of judiciary is maintained and its accountability to the public too.

 

  1. JUDICIAL ACCOUNTABILITY BILL

 

The bill was introduced in Lok Sabha on December1, 2010.

 

  1. The bill shall lay down judicial standards and provide for accountability of the judiciary. It will establish certain mechanisms to investigate the complaints made against the judges individually. Also, it shall provide a mechanism for the removal of judges. It will replace the old Judges Inquiry Act, 1968.
  2. A five member commission shall be appointed by the president of the recommendation of the prime minister and its cabinet of ministers including the leader of opposition and a minority member.
  3. Declaration of assets of judges’ shall be made mandatory.
  4. When a complaint is received against the judges, it shall go to the investigating committee. If the charges are serious then the committee can ask the judge to resign, and if he refuses the case will move forward towards the process of removal.
  5. All the investigation proceeding information shall be made available to the public.

 

  1. JUDICIAL RESTRAINT (NEED OF THE HOUR)

 

It is important for the judiciary to practice judicial restraint for maintaining the balance between the different organs of democracy. The courts must be concerned with legality and law. Extreme judicial activism can raise questions on its accountability. Curbing judicial activism is required as the judiciary cannot start performing the functions of other organs which shall be totally against the principle of separation of powers. The benchmark of an independent judiciary has been its exclusion from the political and administrative process. Judges must not act like legislators or administrators.

 

  1. AMENDING THE CONTEMPT OF COURT ACT

 

The Contempt of Court Act has a lot of loopholes and it gives arbitrary powers to the judiciary. Few suggestions for the amendment were made. The accused must be provided with a reasonable opportunity to defend himself. The contempt cases should not be tried by courts but by independent commissions. The Act must make changes to the definition of criminal contempt so that it does not infringe the rights of the people.

 

 

CONCLUSION

The time has come when the judicial independence needs to be interfered with. Judicial independence must go hand in hand with judicial accountability. It is important to acknowledge the fact that the judiciary is not appointed by the people directly. Thus its accountability is questionable. The main task of judiciary is to provide fair trial and speedy justice. It is the organ that protects the society from injustice. It is only through this that the public can acknowledge its accountability.

This does not mean that the judiciary has failed completely. If the solutions to the problems are entertained and show a green light then proper functioning of judiciary and judicial accountability can definitely be ensured.

 

 

[1] K.Veeraswami v. Union of India, (1991) 3 SCC 655

Role Of Independent Directors

ROLE OF INDEPENDENT DIRECTORS

Written by Lakshay Juneja

2nd year (3 year LL.B) student, Symbiosis Law School, Pune

 

Introduction

With the explosion of scandals pertaining to Corporates due to mismanagement and fraud in recent years, the regulators all over the world have been implementing a series of policies aimed at improving corporate governance and ensuring that companies follow ethical and normative rules of business. Thus, as a part of this initiative, the companies are required to nominate a certain percentage of their board to persons who are not affiliated to the company. These are the so-called independent directors who sit on the boards of companies in a purely professional manner without having a hand in the day to day running or other activities of the company.

In India, the gravity of Independent Directors was recognized with the introduction of corporate governance. The Companies Act, 1956 does not directly talk about IDs, however, Clause 49 of the Listing Agreement which is applicable on all listed companies mandates the appointment of ID’s on the Board. A need has been felt to update the Act and make it globally compliant and more meaningful in the context of investor protection and customer interest. The need for IDs aroused due to the need of a strong framework of corporate governance in the functioning of the company. There was a growing importance of their role and responsibility. Thus, the Companies Act 2013 came into picture, which defined and clearly enumerated the role of IDs and their qualification and appointment in the board of the company and their importance in good corporate governance in the company. Also, the new Act specifies their duties and liabilities, making them a substantial part of the company.

 

An Overview

According to SEBI[1], the expression ”independent director” refers to a non-executive director of a company who apart from receiving the director’s remuneration, does not have any material pecuniary relationships or transaction with the company, its promoters, directors, senior management, holding company or its subsidiaries and associates, which may impact his/her independence. An ID is vested with a variety of roles, duties and liabilities for good corporate governance. He helps a company to protect the interest of minority shareholders and ensure that the board does not favour any particular set of shareholders or stakeholders.

The role they play in a company broadly includes improving corporate credibility, governance standards, and the risk management of the company. The whole and sole purpose behind introducing the concept of ID is to take unbiased decisions and to checks various decisions taken by the management and majority stakeholders. An ID brings the accountability and credibility to the board process. These IDs are the trustees of good corporate governance.

 

Statutory Position

The Companies Act, 1956 do not specifically give the definition of the ID. However one can find parameters mentioned in the Clause 49 of the listing agreement which is applicable to all listed companies in order to recognize a director as an ID. According to this clause ID’s are those who apart from receiving director’s remuneration do not have any material pecuniary relationships or transactions with the company, promoters, senior management, holding company or subsidiary or associates which affect their independence. Moreover he is not related to promoters or persons occupying management positions at the board level or at one level below the board and has not been an executive of the company in the immediately preceding three financial years. Apart from this he will be disqualified if he is not less than 21 years of age or holds 2% or more block of voting shares or shares or if he is a partner or executive of any statutory audit firm or the internal audit firm or the legal firm(s) and consulting firm(s) that have a material association with the company. All provisions of clause 49 are mandatory to be followed by every listed company.

According to NASDAQ “Independent director” means a person other than an executive officer or employee of the company or any other individual having a relationship which, in the opinion of the issuer’s board of directors would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.[2]

Clause 49(II) of the Listing Agreement provides that in case the Chairman of the Company is non executive director, one-third of the Board must comprise of Independent Directors. However, if the chairman is an executive director, half of the board must comprise of Independent Directors. He is any non-executive directors who possess relevant expertise and integrity and in no way is related to the company. According to this clause, no person can be an independent director of more than seven listed companies. If a person is serving as a whole time director in any listed company, then he shall not be the independent director of more than three listed companies.

The Companies Act, 2013 has adopted many of the provisions of clause 49 of the listing agreement and has defined the term  ‘Independent Director’ u/s 2(47) which says that Independent Director means an Independent Director as referred to in sub-section (5) of section 149. As per sub-section 6 of Section 149 of the Act, ID means a director other than a managing director or whole-time director or a nominee director,

  1. Who, in the opinion of the Board, is a person of integrity and possesses relevant expertise and experience;
  2. ) Who is or was not a promoter of the company,

2.) Who is not related to promoters or directors in the company.

  1. Who has or had no pecuniary relationship with the company
  2. None of whose relative has or had pecuniary relationship or transaction with the company.
  3. Who, neither himself nor any of his relative—
  4. Holds or has held the position of a key managerial personnel
  5. Is or has been an employee or proprietor or a partner, in any of the three preceeding financial years.
  • Holds together with his relative two per cent or more of the total voting power of the company; or
  1. Is a Chief Executive or director, of any non-profit organization, or who possesses such other qualifications as may be prescribed.

 

Role and Duties of Independent Directors

The role of an independent director is considered to be of great significance. Schedule IV of the Act lays down certain critical functions like safeguarding the interest of all stakeholders particularly the minority holders, harmonizing the conflicting interest of the stakeholders, analyzing the performance of management, mediating in situations like conflict between management and the shareholder’s interest. It also lays down certain duties like keeping themselves updated about the company and the external environment in which they operates, not disclosing the confidential information of the company unless approved by the Board or required by law. They actively participate in the committees of the board in which they are chairpersons or members, and undertaking appropriate injunctions and refreshing their knowledge, skills and familiarity with the company, regularly attending the General Meeting of the company and many others. The familiarization programmes has been introduced whereby the directors would be familiarized with their role, functions in the company. Also, the details of business functioning would be elaborated.

Clause 49 provides that the ID of a Company shall hold a meeting where only independent directors are present and no other member or director. The objective of this meeting is to analyse the performance of the other directors and to assess the quality and quantity of information flow between the Company and the Board for effective functioning. However, the 2013 Act requires them to meet at least once a year to evaluate the performance of the chairperson of the company. This would immensely aid in ensuring smooth and proper functioning of the BOD of the Company.

The 2013 Act restricts and limits the liability of IDs to the matters which are directly relatable to them. Section 149 (12) limits the liability of an ID “only in respect of acts of omission or commission by a company which had occurred with his knowledge, attributable through board processes, and with his consent or connivance or where he had not acted diligently”. Therefore, he cannot be held responsible for those matters which are out of the purview of their knowledge.

Independent Directors also plays a major role in fraud prevention and detection. With the recent exposure of high-profile cases of fraud in India, IDs are taking direct interest in reviewing the fraud risk management framework put in place by their organizations to mitigate the risk of fraud.

 

Conclusion

Independent Directors bring in the much needed professional expertise since they are individuals with wide experience in running companies as well as the fact that they sit on the Boards of other companies which means that they are abreast of the latest happenings. There has been a move by the regulators in many countries to ensure that independent directors do not have conflicts of interest and these have been codified into rules governing how many companies they can associate themselves with and the sectors and industries that they represent. The 2013 Act has conferred greater empowerment upon IDs to ensure that the management & affairs of a company is being run fairly and smoothly. But, at the same time, greater accountability has also been placed upon them. They now have a better say in the management of the company, which thereby immensely strengthen the corporate governance.

 

 

[1] “Definition of the independent director,” SEBI — Amendments to Clause 49 of the Listing agreement, 31 October 2003

[2] NASDAQ Rule 4200 a(15)

Anticipative And Statistical Analysis Of Insider Trading

ANTICIPATIVE AND STATISTICAL ANALYSIS OF INSIDER TRADING

Written by Javish Valecha

5th Year BBA LLB Student, School of Law, KIIT University, Bhubaneswar

 

ABSTRACT

It was only about thirty years back and not recently that insider trading was identified in many developed countries as what it was – a prejudice; in fact, it is an offence in opposition to the shareholders and markets. Once, not so far in the past, inside information or details and its use for one’s own welfare was considered as an advantage of office and a perk of having reached a high and tremendous phase in life. It was the Sunday Times of UK that fabricated the classic phrase in 1973 to describe this conception – “the crime of being something in the city”, interpreted that insider trading was trusted as legitimate at one time and a law opposing insider trading was like a rule or regulation against high victory or realization. “Insider trading” is a term subject to innumerable definitions, connotations and interpretations and it also consists of legal activity. It’s the buying and selling that transpires when those privileged unpublished with private information about paramount events use the special benefit of that knowledge to earn gains or dodge damages on the stock market. It is also a disadvantage to the origin of the information and to the investors who trade in their stock beyond the privilege of “inside” knowledge. Practically eight years ago, India’s capital markets’ watchdog – the Securities and Exchange Board of India put in order an international seminar on capital market regulations. Admittedly, insider trading is also a crucial part of the business transaction, and that the laws relating to it was last notified in the year 1992 and have not changed since then. This lead to objections in the smooth transactions of listed securities. The new regulations propounded current dynamics of the capital market. Apart from introducing some basic rules of insider trading, the new regulations have brought some faultless and significant changes in the world of insider trading. The new regulation has increased the scope of the definition “connected person”, now it covers all persons who are in connection or is associated with the company or an organization, even by a discussion with an employee which gives a reason to believe that UPSI can be exchanged. SEBI has remodelled the entire formation of the insider trading mechanism, which is seen to be a very deep-seated problem in India. This action of SEBI will provide a much-needed fillip and exposure to the players of Indian capital market and facilitate further economic expansion

 

INTRODUCTION

Attribution of personality to corporations have enabled them to enjoy certain freedoms and legal rights and obligation across the globe in any legal framework. A corporation is a legal entity that is separate and distinct from its owners. One of the most enjoyed rights and responsibilities of a corporation is that what an individual possesses, i.e., a corporation has the right to participate or enter into contracts, loan and borrow money, sue and be sued, hire employees, own assets and pay taxes. And one of the principal features of the corporation is limited liability, i.e., the shareholders have a right to be engaged in the profits but are not held personally liable for the company’s debt.[1]

Corporate – the commercial vehicle has seen various forms of systemic reforms and adjustments, initially with the main concern of establishment of distinct personality for the enterprise, secondly limiting the liability and third, managing the company by a few representatives for the company as its agents and also as the agent of the shareholders. In the last about 75 years there have been serious challenges to the management of the corporate establishments especially on ethical grounds. Insider Trading becomes a most serious problem now-a-days faced by the corporations. The US economy was one of the leading economies to formulate insider trading regulations following UK and many other developed and developing countries.

Share market speculation is the act of getting involved in trading of an asset, or having a financial dealing that has a serious possibility of losing most or all of the initial investment, in presumption of a substantial gain. With speculation, the risk of loss is more than offset by the prospect of a huge profit; otherwise, there would be very little motivation or incentive to speculate. On the other hand Investment is actively using of money to make more money or, to say it another way, you make your money work for you. When you invest, you are purchasing an asset like shares, real estate or gold. The basic idea is to trade it at a future date when the value of these assets appreciates. While trading is a more short term activity than investment. It’s buying something at very low prices and selling it for a gain. Trading can be done in many fields and in divergent ways but the most important factor that distinguishes a trade from an investment is the length of time you hold on to the assets.

Insider Trading is a problem which predominantly implicates the nexus of the corporation behind such trading of stocks. A corporation includes buying and selling of shares in the open market, hence the trading on inside information becomes more easy and earlier it was subject to less stringent trade-disclosure rules. Not surprisingly, insiders exploit these rules to engage in indirect insider trading. Insider Trading is a term which has many definitions and significance. Insider trading takes place lawfully each and every day, when corporate insiders like the Officers, Directors or employees purchase or sell stock in their own companies within the purview of company policy and the regulations administering this trading. The category or variety of Insider trading we discuss here is the illegal sorts.[2]

Insider trading means to deal in a company’s securities, such as stocks or options, by corporate insiders or their associates based on information emanating within the firm that would, once publically revealed, affect the prices of such security. Corporate insiders are persons whose employment with the firm (as executives, directors, or sometimes rank and file employees) or whose privileged ingress to the firms internal affairs (as large shareholders, consultants, accountants, lawyers, etc.) gives them valuable information.[3]

 

INSIDER TRADING LAWS IN US

Regulation and control of insider trading was initiated in the United States at the time of the twentieth century, when judges in several states became willing to remove corporate insiders’ transactions with uninformed shareholders. Americans have counted largely on their courts to advance the law prohibiting and controlling insider trading. Although Congress gave Americans the directive to protect investors and keep their markets devoid of fraud, it has been the jurists, albeit at the counselling of the Commission and the United States Department of Justice, who have played the greatest and most important role in stipulating the law of insider trading. One of the earliest and abortive federal attempts to control insider trading arose after the 1912-1913 congressional hearings in front of the Pujo Committee, which said that “the improper method of officers and directors in speculating upon inside and advanced information in relation to the action of their corporations may be restricted if not stopped.”

After the United States stock market crash of 1929, Congress enacted two acts i.e. Securities Act,1933 and the Securities Exchange Act,1934, focused at supervising the abuses assumed to have contributed to the crash. The 1934 Act mentioned insider trading directly through Section 16(b)[4] and indirectly through Section 10(b)[5].

To implement section 10(b), the SEC adopted Rule 10b-5[6]. To establish a claim under Rule 10b-5, plaintiffs (including the SEC) must need to show the (i) Manipulation or Deception (through misrepresentation and/or omission); (ii) Materiality; (iii) “In Connection With” the purchase or sale of securities; (iv) Scienter- Private plaintiffs have the auxiliary burden of proving; (v) Standing – Purchaser/Seller Requirement; (vi) Reliance (presumed if there was an omission); (vii) Loss Causation; and (viii) Damages.

Broader Enforcement of Restrictions on insider trading began only in the 1960s, when the US Securities and Exchange Commission (SEC) gave their decisions in the cases In re Cady Roberts &Co.[7]and SEC v. Texas Gulf Sulphur Co.[8] using Rule 10b-5, a catch-all provision against securities fraud. In those and in the subsequent cases that shaped the assessment of the general insider trading prohibition, the SEC based its justification for regulation on the unjustness of dissimilar access to information, the breach and violation  of fiduciary duties by insiders, and the misappropriation of  the information as a form of property.[9]

Recent insider trading enforcement efforts have been unparalleled in their scope and impact, producing the lengthiest insider trading sentences in history and pushing the boundaries of existing law. Largely because of these efforts, insider trading law and practice could well be on the brink of substantial transformation. In a potentially landmark verdict the Second Circuit Court in United States v. Newman[10] sought to clarify insider trading law. In particular, the verdict takes a greater step in returning insider trading doctrine to its core concept: because insider trading liability is established in the specific intent crime of common law fraud, such liability requires both a breach of duty and intentional behaviour with respect to that breach.[11]

 

BREACH OF FIDUCIARY DUTY

Insider trading is the trading of the company’s stocks and securities by individuals having access to confidential or non public information of the company. Taking advantage of this privileged access with the ulterior motive to derive unfair advantage or benefit is contemplated as a breach of the one’s fiduciary duty. Congress has criminalised these insiders’ misuse of non public information under the theory that the use fraudulently contravenes a fiduciary duty with which the company has charged the insider.[12]

A fiduciary duty is an agreement or commitment to act in the most suitable interest of another party. For example, a corporation’s board member has a fiduciary duty towards the shareholders, a trustee has a fiduciary duty to the trust’s beneficiaries, and an attorney has a fiduciary duty towards his client. A fiduciary duty exists whenever the association with the client involves a special trust or confidence. When a person agrees to act for another person in a fiduciary relationship, the law restrains the fiduciary from acting in any manner adverse or contrary or detrimental to the interest of the client.

Fiduciary Relationship and the Classical Theory of Insider Trading

The first theory under which a person can be held liable for insider trading under Rule 10b-5 is the so called “Classical Theory” of insider trading.[13] Under the classical theory, a person is liable for insider trading if, on the basis of non public material information in his or her possession, he or she trades with persons to whom they owe a fiduciary duty to divulge the information. The duty of disclosure is generally premised on some type of relationship of trust and confidence, generally shorthanded as a “Fiduciary Relationship” between the person in possession of the material non public information and the buyer or seller of the securities.[14]

 

Fiduciary Relationships and the Tipper/Tippee Theory of Insider Trading

Another theory has approached the ‘insider trading’ form the perspective that a person who has received a tip in the form of material non public corporate information is liable which has been formalized in U.S. under Rule10b-5[15] of Securities Exchange Act, 1934. Such liability of insider trading is generally called the tipper/tippee theory of liability.[16]

Fiduciary Relationship and the Misappropriation Theory of Insider Trading

The third theory of liability for insider trading under Rule10b-5 is the “Misappropriation Theory”. The essence of this theory is that a person is accountable for trading on the basis of material non public information if he has secured the information through trickery practiced on the source of the information.[17]

The “Misappropriation Theory” holds that a person commits deceit or fraud “in connection with” a security dealing, and infringes Section 10(b) and Rule 10b-5, when he misappropriates private information for securities trading purposes, in breach of a duty owed to the source of the information. Under this theory, a fiduciary’s concealed, self serving use of a principal’s information to deal in securities, in breach of a duty of loyalty and confidentiality, defrauds the principal of the exclusive use of that information.

 

INSIDER TRADING LAWS IN INDIA

India was not very late in recognising the sabotage that insider trading can extort upon the rights of the public shareholders, corporate governance in India and the financial markets. In the view of the forgoing events the government established the Thomas Committee at its first attempt to regulate insider trading in the year 1948 under the chairmanship of P. J. Thomas. He was the then Economic Advisor to the Finance Ministry. Pursuant to the recommendation of the Thomas Committee, Sections 307[18] and 308[19] were introduced.[20] Thus this change paved the way for certain obligatory and compulsory disclosures by the directors and the managers, but was not very successful in achieving the aim of preventing the harm caused by insider trading. Eventually, the Sachar Committee and the Patel Committee were established in the years 1979 and 1986, to recommend measures for managing insider trading in India. The Patel Committee defined insider trading as “the trading in the shares of the company by the person who are in the management of the company or are close to them on the basis of undisclosed price sensitive information regarding the working of the company, which they posses but which is not available to others.” The Committee also recommended for the amendment of  SCRA,1956 to make exchanges to curb insider trading, unfair insider trading and unfair stock deals. However, Abid Hussain Committee, established in 1989, said that a person guilty of insider trading should be penalised both in the form of civil and criminal proceeding. The most important recommendation made by this committee was enactment of a separate statute for prevention of insider trading.

 

The recommendations made by these various committees led to the formulation of a comprehensive Regulation, i.e., SEBI(Insider Trading) Regulations,1992. This regulation was considerably amended in the year 2002 to cure certain escape clauses revealed in the cases of Hindustan Liver Ltd v. SEBI[21] & Rakesh Agarwal v. SEBI[22] and was renamed as the SEBI(Prohibition of Insider Trading)Regulations,1992. As on date, SEBI acts as a watchdog and regulates insider trading through the Insider Trading Regulations and the SEBI Act. The SEBI(Prohibition of Insider Trading)Regulations,1992 prohibited fraudulent practice and a person involved in insider trading to be held guilty for such malpractice.

 

PROHIBITION OF INSIDER TRADING

Keeping pace with the policy of ‘liberalized economy’ the radical changes made in the Companies (Amendment) Act, 2013 has included ‘insider trading’ in particular to promote the effective compliance thereof. For example, Section 195 of the Companies Act, 2013 has made necessary provisions to define the expressions ‘insider trading’ and the punishment thereof on detection of the same[23].

 

THE ELEMENT OF MENS REA AND INSIDER TRADING

Mens Rea and Insider Trading in UK: The fundamental tenets of criminal law is that a crime consists of both mental and physical element. An act, hence, alone could not create the criminal liability unless it was associated with guilty state of mind.

In U. K. Insider Dealing Act, the offence of insider dealing requires a proof that the accused has intentionally exploit  his position to engage in insider dealing. In other words, the accused must be shown to have been knowingly connected with the company in order that he is convicted of an offence of insider dealing.[24] The essential requirement that he/she is consciously connected or associated with the company means that if the accused is not aware of his connection with the company in whose securities or stocks he has traded in, he will not be accountable to be convicted and punished. Therefore, it will be necessary for the prosecution to institute that the individual charged with the offence of insider dealing has mindfully dealt in the securities knowing that he is linked with the company.[25]

Mens Rea and Insider Trading in US:  Till the Great depression and subsequent stock market crash of 1929, the securities market in the United States is largely uncontrolled. For the first time in an attempt to control the market, the Securities Act and the Securities Exchange Act were sanctioned in 1933 and 1934 respectively. The Securities Exchange Act 1934 provided that a person would be held criminally liable for the violation of Section 10(b) prohibiting insider trading, the defendant’s action must be expressly considered to contain a “wilful” violation of the securities crimes under Section 32(a) of the Act, thereby absolutely recognising the principle of mens rea. Subsequently, the SEC adopted Rule 10b-5, which made it illegal to engage in fraud or misrepresentation in connection with the purchase and sale of securities and imposed criminal liability for wilful contravention thereof.

However, the Supreme Court in the case of US v. Murdock[26], interpreted “wilfulness” as “an act which is intentional, or knowing, or voluntary, as distinguished from accidental” and “when it is used in a criminal statute it most of the time means an act done with a bad purpose” and “without justifiable excuse”. Again in the case of United States v. Chiarella[27] the significance of mens rea as recognised by way of the misappropriation theory propounded for the very first time, which was described as a theory requiring a breach of fiduciary duty before dealing on inside information becomes unlawful. The US Supreme Court declared that trading on material non public information in itself was not enough to trigger the liability in the absence of breach of fiduciary duty[28].

 

RAJAT GUPTA SCAM: A BREAK THROUGH FOR INSIDER TRADING LAWS

Rajat Gupta was a member of the Board of Directors of  The Goldman Sachs Group, Inc., the global financial services firm the headquarter of which is in New York. He was also the CEO of management consultancy firm Mckinsey & Company. Gupta and Rajratnam had a very close alliance. Gupta described Rajratnam as a “close friend” and was in frequent communication with him. Gupta was also involved in several financial ventures with Rajratnam who was the founder of The Galleon Group, a family of hedge funds that used to invest billions of dollars for its principals and clients. On September 23, 2008, at 3:15 pm Goldman Sachs held a special meeting of its Board of Directors. The meeting was to approve an investment of 5 billion dollars by Warren Buffett, who was the chairman, CEO and the largest shareholder of Berkshire Hathaway. Gupta participated in the board meeting via telephone. Ten minutes prior to 4:00 pm, at which the market closes, Rajratnam called Gupta and had around a 30-35 seconds call. Immediately after the phone call Rajratnam summoned Galleon Cofounder Gary Rosenbach after which Rosenbach started shouting “buy Goldman Sachs.” In all the Goldman Sachs stock bought at the request of Rajratnam in the concluding minutes of the trading day cost more than $33 million and later that day $5 billion investment in Goldman Sachs was announced through Warren Buffett.

On October 23,2008, Goldman’s chairman convened an unofficial board meeting to inform the board that the company’s fourth-quarter result would be a loss. Gupta’s telephone was connected to Rajratnam’s direct line for some 12 minutes where Gupta disclosed information concerning Goldman’s negative interim earnings. The next morning, on October 24, 2008, Rajratnam sold a total of 1,50,000 shares of Goldman Sachs stock, avoiding a loss of more than $3.8 million.

Verdict

The jury found Gupta guilty on four of the six allegations against him. One was conspiracy to commit securities fraud in violation of conspiracy to commit offence or to defraud United States[29], three substantive counts of securities fraud in violation of manipulative and deceptive practices[30] and penalties for using manipulative and deceptive practices.[31] Gupta was sentenced principally to 24 months’ and was ordered to pay a $5 million fine. This Court granted his motion for bail pending appeal.

Mens Rea for Criminal Liability in India: Traditionally, criminal law requires the existence of mens rea for a person to be convicted of an offence. The requirement of mens rea embodies the fundamental principle that punishment requires personal fault. However, in the legal framework of India it does not seem to take the intent of the offender into account. Under the SEBI Act it is not obligatory to prove that the insider knowingly engaged in insider trading, i.e., mens rea is not an vital ingredient of the offence of insider trading. The focal point of culpability is on ‘reasonable likelihood of access’. Consequently, a person may be convicted of insider trading as an offence regardless of whether he has committed it knowingly, deliberately or intentionally.

Section 24 of the Securities Exchange Board of India (SEBI) Act 1992, read with SEBI (Prohibition of Insider Trading) Regulations,1992, provides the basis for criminal liability for insider trading in India. The SEBI is empowered to lodge criminal prosecution under section 24 of the SEBI Act to ensure full compliance of the rules and regulations. Again, section 15G under chapter VIA of the SEBI Act provides for the penalty in case of insider trading in contravention of the SEBI Act and the SEBI Regulations passed under it.

One of such landmark decisions on criminal liability for insider trading is Hindustan Lever Ltd. v. SEBI[32]. Shortly before HLL revealed that it was merging with Brooke Bond Lipton Limited, HLL purchased eight hundred thousand shares of the latter company from Unit Trust of India (UTI). In this case the SAT concluded that that the purchase of shares was persuaded by the knowledge of the impending merger, SEBI was hardly put to prove that the transaction must actually be on the basis of inside information. Therefore the Companies Amendment Act, 2002 was brought which changed the requirement while in possession of unpublished price sensitive information from on the ground of UPSI. It was argued that for insider trading it is necessary to prove the misuse of fiduciary possession and that the transaction was undertaken to make a gain, profit or to avoid loss. These contentions were argued by the SAT and this case was held to be that of insider trading.

 

MAJOR DIFFERENCES IN THE INSIDER TRADING LAWS OF US, UK AND INDIA

The US has been one of the major and dominant country in enforcing the Insider Trading Regulations around the world. Although certain features of the insider trading regime in the UK are similar to their US counterpart, the UK statutes exhibit a great amount of difference than the US Insider Trading Regulations. These differences can have very significant practical consequences.

  1. There are two laws governing the concept of Insider Trading in US i.e. the Securities Act of 1933 and the Securities Exchange Act of 1934 whilst there is only one law governing the problem of insider trading in UK i.e. Financial Service and Markets Act, 2000.
  2. Insider Trading is both a civil and a criminal offence in US and UK but the difference lies on proving the Mens Rea and the Scienter. In US it is a necessary criteria to prove Mens Rea to establish a criminal liability and a scienter to civil liability but in UK scienter is not a necessary criteria to make a person liable of a civil offence.
  3. The Securities Exchange Commission is the regulatory authority which looks after the problem of insider trading in US while in UK the regulatory authority is Financial Services Authority.
  4. The punishment in United States for committing the offence of insider trading is twenty years in prison and a fine of five million US Dollars. The punishment for insider trading in UK is seven years imprisonment and unlimited fine.

 

INSIDER TRADING REGULATIONS 2015: AN OVERVIEW

India has put its effort and has made a move towards the ratification of the new insider trading regulations with the view to coordinate its laws on insider trading with that of the developed countries. SEBI in order to revise the law on insider trading and ensure that it is in consonance with the global best practices, constituted a committee under the chairmanship of Justice N.K Sodhi who drafted the Prohibition of Insider Trading Regulations,2015 containing thereof five chapters, two schedules and twelve sections. The Sodhi committee has made a wide range of recommendations for prohibition of insider trading in India and concentrated on making this area of regulation more predictable, precise and clear by suggesting a combination of principle based regulations.

The proposed regulations seek to extent the applicability of the regulations to any entity that has issued securities which are listed on stock exchange or intended to be so listed. The existing regulations are limited in their extent as they only extent to companies listed on a stock exchange in India.

The salient features of the new proposed regulations are[33]:

  1. Who is an Insider? In the efforts to bring out a clearer and less enigmatic law, the proposed regulation have tailored the definition of “insider” into two categories of persons i.e. a connected person and those that have unpublished price sensitive information. The definition of an “insider” under the existing regulations also includes “a person deemed to be a connected person”. This category includes a company under the same management or group, intermediaries, members, board of directors, etc. With the simplification of the definition of an insider, this category of “persons deemed to be connected persons” has been eliminated. The proposed regulations also seek to restrict this definition to those who are “in possession of” UPSI.
  2. Who is a Connected Person? Any person associated with the company in a capacity that would allow such person to have access to unpublished price sensitive information relating to the company or whose association is reasonably expected to allow such access to the UPSI would be a “Connected Person”. Hence, it can be deduced that the fact as to the actual possession of the unpublished price sensitive information is irrelevant to bring a charge as long as a reasonable expectation can be established.[34] The definition of ‘Connected Person’ under the 2015 Regulation also comprises of persons deemed to be connected persons. This combines two different and separate definitions of the 1992 Regulations. Additionally in the 2015 Regulations, anyone who has been in frequent contact with an officer of a company is termed as ‘connected person’. The new definition of a ‘connected person’ comes through the curtailment of the scope of the definition “Relatives”. The 2015 Regulations only covers immediate relatives such as spouse, parents, siblings, children’s, person financially dependent.
  3. Definition of UPSI: The New Regulation, 2015 has modified the definition of ‘Unpublished Price Sensitive Information’. It has been defined to mean any information that is not generally available, which upon becoming generally available, is likely to materially affect the price of the securities to which it relates to. As per the definition of generally available information in the 2015 Regulations, that is accessible to the public on a non-discriminatory basis would be considered generally available. Generally available information will ordinarily include information relating to the following:
  • financial results
  • Dividends
  • change in the capital structure
  • merger, demerger, acquisitions, delisting, disposals and expansion of business and such other transactions.
  • changes in key management personnel

The 2015 Regulations asserts on the fact that the list of information given in the definition is only an illustrative guidance and to see whether a piece of information is UPSI or not. The examples in 2015 Regulations have two new entries as compared to the 1992 Regulations, being change in key managerial personnel and material events in accordance with the listing agreement.[35]

  1. Trading Plans: Trading Plans are new concepts introduced under the 2015 Regulations, wherein insiders who are bound to possess UPSI all-round the year are permitted to formulate trading plans with proper safeguards. It has been introduced in accordance with Rule 10b-5 of the Securities Exchange Act, 1934. While the concept of trading plan is novel to India it has already been enforced in other jurisdictions like USA but in Indian context only efficacious implementation shall ensure whether the trading plans will really bring about compliant trading or not.
  2. Code of Conduct and Code of Fair Disclosure: In the 1992 Regulation, Regulation-12 requires all listed companies; intermediaries correlated with the securities market and professional firms to frame and adopt the code of internal proceedings and conduct. Similarly, the 2015 Regulation obligates that all listed companies, organisations, intermediaries, self-regulatory organisations, clearing houses and public financial institutions should frame and adopt a “Code of Conduct” prescribed in Schedule B of the new Regulation.

In addition to this the 2015 Regulation prescribes a “Code of Fair Disclosure”, which provides for practices and procedures to fair disclosure about appearance  of UPSI that warrants public dissemination. As per Regulation- 8 of 2015 Regulation, the Board of Directors of every listed company shall compose and publish a code of fair disclosure on its website as per the format prescribed in Schedule A.

Types of disclosures in the 2015 Regulation are as follows[36]:

  • Initial Disclosure- Required by every promoter, key managerial personnel and director of each and every company whose securities are listed on any of the recognised stock exchange to mandatorily disclose his holding of securities of the company as on the time of these regulations taking effect, to the company within thirty days of these regulations coming into force.
  • Continuous Disclosure- Required by every promoter, employee and director of every company to mandatorily disclose to the company the number of such securities acquired or disposed of within two trading days of such transactions if the value of securities traded, whether in one transaction or a series of transactions over any calendar quarter, which aggregates to a traded value in excess of ten lakh rupees or such other value as may be specified.
  • Additional Disclosure- also required for all holdings in securities of that company held by any other connected person or class of connected persons. Such disclosures shall be made at the periodic frequency as determined by the company with the purpose of monitoring compliance with the present 2015 Regulation.
  1. Notional Trading : Another important development in relation to notional trading windows which are used as an instrument to monitor complaint trading by designated persons within the company. The concept of notional trading windows has also been implemented to external agencies having contractual or fiduciary relationships with the company such as law firms, accountancy firms etc. The time period for such re- opening of trading windows has been set to 48 hours after the UPSI becomes generally available.

 

CONCLUSION

Insider Trading is crafty for many number of reasons. However, although most argue their protest to insider trading because it is simply inequitable, perhaps the greatest outcome is that insider trading makes the market less efficient. Although there are many other competing avenues for market inefficiency, new financial instruments and insights increasingly allow us to solve these competing inefficiencies. The secretive nature of insider trading makes detection difficult, conviction more difficult, and the huge sums involved difficult to deter. Insider trading is one of the most disputable facets of securities regulation, even among the law and economics faction. One set of scholars favours deregulation of insider trading, permitting corporations to set their own insider trading policies by contract. Another set of law and economics scholars, in distinction, contends that the property right to inside information should be assigned to the corporation and not excused upon contractual reassignment. Deregulatory arguments are typically premised on the claims that insider trading assists market efficiency or that assigning the property right to inside information to managers is an methodical reimbursement scheme. Public choice analysis is also a predominant of the deregulatory literature, arguing that the insider trading disallowance benefits market professionals and managers rather than investors. The argument in favour of regulating insider trading traditionally was found and based on fairness issues, which predictably have had little resistance in the law and economics fraternity. Instead, the economic argument in favour of mandatory insider trading prohibitions has typically rested on some alternative of the economics of property rights in information.

 

To downsize the gaps and to make the existing norms more secure, the Securities and Exchange Board of India (SEBI), on May 15, 2015 introduced the SEBI (Prohibition of Insider Trading) Regulations, 2015, that replaced the existing SEBI (Prohibition of Insider Trading) Regulations, 1992. The 2015 regulations appear to be promising, favourable, more practical, and largely in line with the global outlook to insider trading. They also seem to furnish and provide better compliance and enforcement. It is, therefore, only unsurprising for everyone to be talking about the new norms. Most financial regulations require persistent and constant modifications to keep pace with the ever developing and progressing market dynamics. Insider trading is no different at all. The existing regulations came into force in 1992. In the past two decades, the laws and perception of insider trading (both global and domestic) have evolved significantly. Although compliance with these codes appears to be unmanageable and inconvenient, especially for companies and business houses with large shareholder and employee bases. For illustration, in a company with 10,000 staff, it would require dedicated resources just to monitor trading activities of the employees. However, there’s hope that the regulations are interpreted by courts and authorities in an ongoing manner and timely clarifications are issued by the capital market regulator.

 

 

[1] Investopedia, http://www.investopedia.com/terms/c/corporation.asp (last visited on Apr. 26, 2016)

[2] Thomas C. Newkirk and Melissa A. Robertson, Insider Trading – A U.S. Perspective, SPEECH BY SEC STAFF (Apr 19, 2016, 6:46PM),  https://www.sec.gov/news/speech/speecharchive/1998/spch221.htm

[3]Stanislav Dolgopolov, Insider Trading, LIB. OF ECONOMICS AND LIBERTY (Apr 19, 2016, 6:54PM),  http://www.econlib.org/library/Enc/InsiderTrading.html

[4] Section16(b)- prohibits short swing profits (profits realised in any period  less than six months) by corporate insiders in their own corporation’s stock except in very limited circumstances. It applies only to directors or officers of the corporation and those holding greater than 10 % of the stock and is designed to prevent insider trading by those most likely to be privy to important corporate information, Securities Exchange Act,1934.

[5] Section 10(b)- makes it unlawful for any person “to use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe, Securities Exchange Act,1934.

[6]Rule 10b-5-  It shall be unlawful for any person, directly or indirectly

(a) to employ any device, scheme, or artifice to defraud,

(b) to make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or

(c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of a security.

[7] 40 SEC 907 (1961).

[8] 401 F. 2d 833.

[9] Supra note 2.

[10] 773 F.3d 438.

[11] J. Kelly Strader, (Re)Conceptualizing Insider Trading: United States v. Newman and the Intent to Defraud, 80 Brook. L. Rev. 1419 (2014-2015) (Apr 20, 2016, 7:30PM), http://heinonline.org/HOL/LandingPage?handle=hein.journals/brklr80&div=45&id=&page= last seen on Apr 20, 2016.

[12] LII,  https://www.law.cornell.edu/wex/insider_trading (Last visited on Apr 21, 2016).

[13] See United States V. O’Hagan, 521 U.S. 642, 651-52 (1997) (stating the “classical theory” nomenclature was sanctioned by the court).

[14] Harry S. Gerla, Confidentiality agreements and the misappropriation theory of Insider Trading: Avoiding the fiduciary duty fetish, UNIVERSITY OF DAYTON LAW REVIEW VOL 39:3 (Apr 20, 2016, 8:43PM),  https://www.udayton.edu/law/_resources/documents/law_review/vol39_no3/avoiding_the_fiduciary_duty_fetish.pdf

[15] U.S. Securities Exchange Act, 1934, § 10b-5:

  1. a) he or she trades on the basis of the information ;
  2. b) the tipper is in breach of fiduciary duty owed to the corporation by supplying the information;
  3. c) he or she knows or should have known of the tipper’s breach of fiduciary duty.

[16] Dirks v. SEC, 463 U.S. 646 n.14 (1983), Id, at 661 (citing In re Investors Mgmt. Co., 44 SEC 633, 651 (1971) (Smith, Comm’r, concurring in result).

[17] United States v. O’Hagan, 521 U.S. 642, 652 (1997).

[18] Companies Act, 1956, Section-307: Provides for the maintenance of a register by the companies to record the director’s shareholding in the company.

[19] Companies Act, 1956, Section-308: Incorporates mandatory duty of the directors and persons deemed to be the directors to make disclosure of their shareholdings.

[20] P.J. Thomas, Report on: The Regulation of the Stock Exchanges in India – 1948, (Apr 21, 2016, 7:54PM) http://www.sebi.gov.in/History/HistoryReport1948.pdf

[21] (1998) 18 S.C.L. 311AA

[22] (2004) 1 Comp L. J. 193 SAT, 2004 49 SCL 351 SAT

[23] Companies Act, 2013, Section-195:

(1)- No person including any director or key managerial personnel of a company shall enter into insider trading:

Provided that nothing contained in this sub-section shall apply to any communication required in the ordinary course of business or profession or employment or under any law.

(2)- If any person contravenes the provisions of this section, he shall be punishable with imprisonment for a term which may extend to five years or fine which shall not be less than five lakh rupees but which may extend to twenty-five crore rupees or three times the amount of profits made out of insider trading, whichever is higher, or with both.

[24] JONATHAN R. MACEY, “INSIDER TRADING: ECONOMICS,POLITICS,AND POLICY, University Press of America (1st ed. 2000).

[25] Bose Jaishree, “Insider trading perspectives and cases “The ICFAI University Press Publication, (1st ed., 2007)  at 35-55.

[26] 290 U.S. 389 (1933)

[27] 445 U.S. 222 (1980)

[28] Ibid.

[29] 18 U.S.C. § 371

[30] 15 U.S.C. § 78j

[31] 15 U.S.C. § 78ff

[32] (1998) 18 SCL 311 (AA).

[33] SEBI, http://www.sebi.gov.in/cms/sebi_data/attachdocs/1421319519608.pdf ( Last visited on Apr 25, 2016).

[34] CS Swetha Subramanian, Introduction of Insider Trading Regulations 2015, Issue No. 18, Volume 02, February 16, 2015 (Apr 26, 2016, 4:56PM) http://www.icsi.edu/portals/0/e_cs_nitor_feb_2_issue_2015.pdf

[35] Supra note 24.

[36]  Kashyap, Amit K, Financial Market Regulations and Legal Challenges in South Asia (Apr 23, 2016, 6:44PM)

Case Comment: M. Karunanidhi v. Union Of India, 1979

CASE COMMENT: M. KARUNANIDHI V. UNION OF INDIA, 1979

Written by Gaurav Maharshi

4th Year B.Com LLB Student, Institute of Law Nirma University

 

 

Date:

20/2/1979

 

Citation:

1979 AIR 898.

 

Bench:

Fazalali, Syed Murtaza, Y.V. Chandrachud, P.N. Bhagwati, N.L. Untwalia, R.S. Pathak.

 

Facts:

In 1973 the Madras Legislature had passed The Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 herein referred as State Act. This Act was passed after obtaining the assent of the President of India. This State Act was, however, amended by Act 16 of 1974 and the President’s assent was received on 10th April, 1974. According to the provisions of the State Act the statute was brought into force by virtue of a notification with effect from 8-5-1974. The Act provided for the investigation in respect of a complaint of criminal misconduct against any ‘public man by a Commissioner or the Additional Commissioner of Inquiries appointed for this purpose. The word ‘public man’ had been given a specific connotation in s. 2(c) of the Act and clearly excluded a Government servant.

 

A CBI inquiry was instituted against the appellants who were alleged to have abused their official position in the matter of purchase of wheat from Punjab. As a result of the inquiry a prosecution was launched against the appellant under the IPC and the Prevention of Corruption Act. A FIR was recorded on 16th June, 1976 and four months later sanction under section 197 of the Code was granted by the Governor of Tamil Nadu for the prosecution of the appellant under sections 161[1], 468[2] and 471[3] of the IPC and Sec. 5(2) r/w Sec. 5 (1) (d) of the Prevention of Corruption Act (hereinafter referred to as the Corruption Act). Thereafter, the police submitted a charge sheet against the appellant for the offences mentioned above and alleged that the appellant had derived for himself pecuniary advantage to the extent of Rs. 4 to Rs. 5 lakhs from Madenlal Gupta for passing favourable orders in respect of some firms. The case was registered before the Special Judge and the necessary copies of the records were furnished to the appellant.

 

Then an application for discharging him was filed by him under the Sec. 239 of the Code before the Special Judge but after hearing the counsel the Judge rejected the application and as a result the appellant again filled two applications under the High Court for quashing the proceedings and for setting aside the order of the Special Judge of not discharging him. The High Court also rejected his applications but granted him with the certificate of leave to appeal to the Supreme Court, thus he appeals before the Supreme Court.

 

Issues:

The appellant challenged the validity of the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973, as amended by the Act 16 of 1974 on the ground that it was inconsistent with the Central Act and Prevention of Corruption Act, 1947 and hence void. The state Act was passed after obtaining the assent of the President. The State Act repealed and the question arose whether action could be taken under the Central Laws i.e. the IPC, the Corruption Act and Criminal Law Amendment. The appellant contended that even though the State Act was repealed it was repugnant to the Central Laws, i.e. the IPC and the Corruption Act. It was argued that by virtue of Art. 254 (2) the provision the Central Act stood repealed and could not be revived after the State Act was repealed. Thus the question before the court was whether there was any inconsistency between the State Act and the Central Act and that the provisions of the Central Act stood repealed and unless re-enacted could not be invoked even after the state Act was itself repealed.

Contentions:

Mr Venu Gopal, learned counsel for the appellant has raised only two points before the Court.

In the first place, he submitted that even though the State Act was repealed on 6-9-1977 during the time that it was in force, it was wholly repugnant to the provisions of the Code, the Corruption Act and the Criminal Law Amendment Act and by virtue of Article 254(2) of the Constitution of India the provisions of the aforesaid Central Acts stood repealed and could not revive after the State Act was repealed. The constitutional position, it is submitted, was that even though the State Act was repealed the provisions of the Central Acts having themselves been protanto repealed by the State Act when it was passed could not be pressed into service for the purpose of prosecuting the appellant unless those provisions were re-enacted by the appropriate legislature. A number of grounds were raised by counsel for the appellant in support of the first plank of his argument that the State Act was repugnant to the provisions of the Central Acts as a result of which the former was rendered void.

 

Secondly, it was argued that even assuming that the State Act has ceased to exist and the Central Acts apply to the facts of the present case, the appellant cannot be prosecuted under any of the Sections of the Penal Code or the Corruption Act, because being the Chief Minister of the State at the relevant time he was not a public servant as defined in section 21 clause (12) of the Indian Penal Code. The argument was that by virtue of the position that the appellant enjoyed as Chief Minister there was no relationship of master and servant between him and the Government and he was acting as a constitutional functionary and, therefore, could not be described as a public servant as contemplated by section 21(12) of the Penal Code.

 

Judgement:

The Supreme Court held that the State Act was not repugnant to the Central Acts and therefore it did not repeal the Central Act which continued to be in operation even after the repeal of the State Act creates distinct and separate offences with different ingredients and different punishments and does not in any way collide with the Central Acts. The State Act is rather a complimentary Act to the Central Act. The State Act itself permits the Central Acts to come to its aid after an investigation is completed and a report is submitted. The State Act provides that the ‘public man’ will have to be prosecuted under the Central Acts.

The question of repugnancy between the Parliamentary legislations and State legislation arises in two ways. First, where the legislations are enacted with respect to matters allotted in their fields but they overlap and conflict. Second, where the two legislations are with respect to the matters in the concurrent list and there is a conflict. In both the situations, the Parliamentary legislation will predominate, in the first by virtue of non-obstacle clause in Article 246 (1)[4] and in the second by reason of Article 254 (1)[5].

In Deep Chand v. State of U.P[6]., the validity of U.P. Transport Service (Development) Act was involved. By this Act the State Government was authorised to make the scheme for nationalisation of Motor Transport in the state. The law was necessitated because the Motor Vehicles Act, 1939 did not contain any provision for the nationalisation of Motor Transport Services. Later on, in 1956 the Parliament with a view to introduce a uniform law amended the Motor Vehicle Act, 1939, and added a new provision enabling the State Government to frame rules of nationalisation of Motor Transport. The Court held that since both the Union Law and the State Law occupied the same field, the State Law was void to the extent of repugnancy to Union Law.

 

Conclusion:

After the study of this case and Doctrine of repugnancy it can be concluded that the repugnancy generally arises when

  1. there is a clear and direct inconsistency between the Central Act and the State Act,
  2. such an inconsistency is absolutely irreconcilable and
  3. the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. It can also be said that in situations where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. In situation where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. Therefore Article 254 (2) is an exception where the State law prevails in situation of conflict between State and Central law.

 

 

[1] Sec.161, Indian Penal Code, “Public servant taking gratification other than legal remuneration in respect of an official act”.

[2]  Sec.468, Indian Penal Code, 1860, “Forgery for purpose of cheating”.

[3]  Sec.471, Indian Penal Code, 1860, “Using as genuine a forged document”.

[4] Constitution of India, Art. 246 (1).

[5] Constitution of India, Art. 254 (1).

[6] 1959 AIR 648.