A Hyperactivist Indian Supreme Court? Wall Street Journal reports.

I have previously posted on the spate of activist decisions by the Indian Supreme Court here and here.

Now, the world media notices it.

Governance in India has reached dismal levels, and in the absence of a proactive Executive and Legislature, have the judges indirectly come to rule our country?

Wall Street Journal reports about a hyperactive judiciary in India and whether it might actually become judicial tyranny.

SEE: http://blogs.wsj.com/law/2011/05/16/indias-hyperactivist-supreme-court/

http://online.wsj.com/article/SB10001424052748703509104576325660087117274.html?mod=WSJ_World_MIDDLENews

Supreme Court dismisses curative review petition of Bhopal gas tragedy

Today a Constitution-bench of the SC of India, in an order (CBI v. Keshub Mahindra) dismissed the Curative Petition filed by the Central Bureau of Investigation to enhance the charges of the accused in the Bhopal criminal cases and also the demand to increase the compensation from to $1.7 billion from the previously awarded damages of $470 million (though the Court did not expressly go into the issue of compensation).

Re-narrating the incidents that led to the Bhopal gas disaster in 1984 and the legal proceedings that ensued, the Court was of the opinion that no strong case or evidence was made out to enhance the charges of the accused to make them subject to harsher punishment under s. 304A of the Indian Penal Code. Noting that none of the constitutional remedies for review, under Article 137, were utilized by the affected parties, the Court restricted itself to the technical issues of the criminal review petition.

The Court also categorically stated that:

No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code.

Observing that no clear grounds or explanation was provided to file the curative petitions 14 years after the previous 1996 ruling, the Court rejected the Curative Petition. See the Hindu and NY Times articles of the same.

It seems as though the Bhopal victims have nowhere else to look to, now that even the judiciary has rejected their appeals and while social activists were left distraught.

‘Over-Judicial Activism’ by the Indian Supreme Court?

In an ongoing case at the SCI (Supreme Court of India), a division bench, comprising Justices M. Katju and G. S. Misra, better known for their conservative and sometimes controversial decisions, have passed an order, which prima facie seems illegal and beyond their jurisdictional merit and capability.

The case relates to a constitutional challenge of section 36 (4) of the Industrial Disputes Act, 1947 which requires a party to take prior permission of the opposite party and the Labour Court/Industrial or National Tribunal to be represented by a legal practitioner. The matter has come up before the SCI on a Special Leave Petition under Article 136 of the Constitution of India from a decision of the Punjab and Haryana High Court.

Instead of restricting itself to the question of law of the appeal, the Bench went on to expand the scope of the petition, suo motu and without any argument in that regard by either party, to also include a similar provision under section 13 of the Family Courts Act, 1984, which requires leave of the Family Court for legal representation.

In what seems to be an ‘over-judicial activism’ of the SCI, the matter has been posted for hearing on July 12, 2011 after seeking opinions of the Amicus Curiae and the Attorney General.

Two consequences flow out of this ‘suo motu‘ action:

  1. The expansion of the scope of the petition is uncalled for for two reasons. One, the petition has nowhere mentioned that the parallel provision in the Family Courts Act, 1984 should also be considered. And a suo motu action of this kind is unheard of, especially when the constitutionality of a legislation is challenged in a petition. Second, Indian judicial system is based on activation by a person who has been caused any legal injury, of course a Public Interest Litigation is the exception. Therefore, this apparent bravado by the SCI is beyond the scope of what the parties had approached the SCI in the first place.
  2. The SLP as another mode of constitutional remedy has undergone a sea change to include many kinds of legal challenges. From being restrictive and circumspect in its approach in admitting SLPs, the SCI has certainly come a long way in admitting such matters, making SLPs one of the largest routes for petitioners to approach the SC from any order of any tribunal or court in India. Having said that, does that mean that this leeway should be taken so far so as to expand the scope of the petition to include a legislative provision that is a subject of the petition and suo motu include such a provision in a constitutional challenge for validity? Seems very overreaching and the legality of such an action is questionable.
What remains to be seen is how the Court will deal with the jurisdictional arguments in the course of the hearings. Also, the enforceability of any decision as an outcome, whether it can be a binding precedent and a law of the land(Article 141)? It is sure going to draw some criticism in the days to come. The bench has sure become sensationalist, by its reputation!

Read this Hindu article regarding this order.

Split Decisions on Division Benches of the Supreme Court

In the past couple of weeks, two Supreme Court decisions have been ill-fated in that they were rendered meaningless due to split verdicts by 2-judge bench of the Supreme Court of India.

First one was the bail plea of Abdul Nasir Maudany, prime accused in the Bangalore bomb blasts of 2008.

Second was the decision in a PIL regarding an office of profit held by the IPL Chennai Super Kings owner and BCCI Treasurer N. Srinivasan.

There are two consequences of this:

  1. It renders the decision bad in the eye of the law – the precedential value of which having been reduced due to the split verdict.
  2. It creates an additional burden on the already overburdened Indian judiciary as now this incongruous decision will have to be resolved by a higher 3-judge bench.
Jurisprudentially, it is unfavorable to constitute 2-judge benches.  Especially in the higher judiciary as the aftermath of split decisions, not unlikely given the highly opinionated and free judges with a license to independently differ from their colleagues, is likely to affect the justice delivery system. Something that has to be kept in mind by the Chief Justices when constituting benches to hear matters at our High Courts and the Supreme Court.

Honour Killings outlawed by the Indian Supreme Court

In a much needed intervention by the highest court of law, the Supreme Court on April 19, 2011, outlawed the evil practice of of protracted illegal honour killings by Khap Panchayats in India. The responsibility for controlling and eliminating such acts of the rural Khap Panchayats, many of which have a huge following, was placed on the State governments and the SC ruled that heavy penalties would result in the event of non-compliance.

The operative portion of Arumugam Servai & Ors. v. State of Tamil Nadu,

16. We have in recent years heard of `Khap Panchayats’ (known as katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh’s case (here), there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.

17. Hence, we direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or indirectly accountable in this connection.

It was about time that there was some definite stand was taken on these patently illegal acts and in the absence of affirmative governmental action, it looks like the SC has yet again assumed the mantle of governance in India.

As expected, this judgment has not gone down very well with the Khaps.

Providing a fillip to this judgment, the same bench of the SC in Bhagwan Dass v. State of NCT, Delhi, laid down that honour killings satisfy ‘the rarest of the rare’ doctrine so as to attract the death penalty for its perpetrators.

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