CUT Motion ABORTED before Presentation as Mayawati, Lalu, Mulayam Help the Manusmriti Hegemony to Strike Excellent Deal as Strategic Rural Destruction and Bharat Bandh Remains Irrelevant.
BSP declares support to government in Lok Sabha on cut motion
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Reservation in India - Wikipedia, the free encyclopedia
1951: 16% Reservation for SC/ST and 25% Reservation for OBCs introduced. .... Reservations reduce elections to quid pro quos pitting castes against each other .... The Hindu : Opinion / Leader Page Articles : Caste matters in the Indian ...
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Mandal Commission - Wikipedia, the free encyclopedia
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BSP declares support to government in Lok Sabha on cut motion
Bolstering the government ahead of voting on opposition-sponsored cut motion in Lok Sabha, BSP, with 21 MPs, today came out openly in support of the ruling UPA.
- Ramvilas Paswan among 4,000 bandh supporters held in Bihar
- Mixed response to bandh in Haryana
- Bandh against price rise fails to evoke response in Delhi
- Bharat bandh paralyses normal life in Arunachal Pradesh
- Left bandh: Protests across Andhra Pradesh, bus services suspended
"We are supporting the government since the day one to keep the communal forces at bay. At the time of the formation of the UPA government, we gave unconditional outside support and that is there," party supremo and Uttar Pradesh chief minister Mayawati told a press conference in Lucknow.
"This is not a new situation. We will support the government on cut motion. In the name of cut motion, communal forces are trying to come back to power at the Centre," she said.
Mayawati also said normally her party should have supported the cut motion because of the issues on which it was being brought.
CBI cases were there against her which, she said, they would fight legally. "But our support to the government has nothing to do with the cases," she said.
With BSP's support, the UPA's strength in the 543-member House appears clearly more than the half-way mark. Mayawati said, "Though we should have voted against the government keeping in mind the issues of price rise and inflation, the party does not want communal forces to have an upperhand."
She said that the party MPs have been apprised of the decision.
When asked whether the BSP's decision was influenced by CBI cases against her, she said that the issue of supporting the UPA had nothing to do with it.
"I would like to say that the cases relating to Taj corridor and on assets were lodged during the NDA regime and the UPA was not in the power at that time," she said.
Mayawati, however, said that her party's agitation against wrong economic policies of the UPA Government and rise in prices of essential commodities would continue. She said her party will also protest the attitude of the government on development in UP.
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Voting on money matters is crucial for the ruling coalition as a defeat will mean the government of the day will have to quit. The voting will be taken up at 6 pm on Tuesday. Both Congress and all NDA parties have issued whips for their members to attend the House during the voting. The government needs a minimum of 273 in a House of 545 to cross the majority mark.
With reports of the 21-member Bahujan Samaj Party (BSP) supporting the government—or at least abstaining from voting—besides some independents and smaller parties, the government seemed to be sitting pretty. Without the BSP support, and with third front parties such as the Samajwadi Party (SP), Rashtriya Janata Dal, Telugu Desam Party and the Janata Dal-Secular identifying with the Left to bring in cut-motions, the government would have faced the prospect of being reduced to a minority.
Prime Minister Manmohan Singh expressed confidence that his government will defeat the cut motions as he said on Monday: "We are as confident as possible."
Congress president Sonia Gandhi remarked: "Of course, we are confident."
Asked whether the government will be talking to SP supremo Mulayam Singh Yadav on the issue, Singh said: "We seek the support of all right-thinking people." Giving no signs of being under pressure, Parliamentary Affairs Minister Pawan Bansal told media persons: "The financial business will be cleared."
Meanwhile, the BJP said it will demand a division of votes on the cut motions. "We are moving cut motions against increase in prices of diesel and petrol and a token cut motion against increase in fertiliser prices," Leader of Opposition in the Lok Sabha Sushma Swaraj said. The 13-party combination that includes Left parties has also decided to move cut motions.
The BJP signalled it will go all out to defeat the budget proposals. Its leaders Gopinath Munde and SS Ahluwalia said all NDA MPs, including JMM chief and Jharkhand chief minister Shibu Soren and his colleague Kameshwar Baitha, who is lodged in the jail, will be present in the Lok Sabha on Tuesday.
What is a cut motion?
When budget proposals are presented before Parliament for approval, a member or a party can question a budgetary allocation in the form of a cut motion. If the motion is carried in the Lok Sabha, it amounts to a vote of no confidence in the government, which is then obliged to quit. A cut motion will be allowed, depending on the Speaker's ruling, when outstanding demands for grants in respect of the general budget is taken up. A member can move the cut motion when the Speaker applies 'guillotine' on the demands for grants.
The BJP and the Left parties have planned to corner the UPA Govt by moving cut motions in the Parliament on Tuesday against rising prices. However, the Govt seems to be confident of surviving the challenge as Opposition's plans for a joint strategy seems to be withering away.
When Sushma Swaraj, Mulayam Singh Yadav, Lalu Prasad, Sharad Yadav and Gurudas Dasgupta raised their hands together on February 26 to announce they would vote out Pranab Mukherjee's Budget proposals, it was heralded as a new union of anti-Congress parties. A cut-motion calls for cutting budgetary grant by a token one rupee to show disapproval.
If the House adopts it, the government has to resign. With no party keen to destabilise the government now, the NDA has been left to move its own separate cut motions on hiked fuel prices and decreased fertiliser subsidy.
"The government is in a comfortable position," said Parliamentary Affairs Minister P K Bansal. He could claim this as the Opposition stood divided while the UPA - in a three-pronged strategy - rallied its MPs by issuing a whip, reached out to supporters and sought to persuade detractors to be absent.
The UPA has the support of 271 MPs in the 543-member House and is confident of defeating any cut motion: There were indications that the Left would not vote with the BJP; RJD may not participate in the vote - a sign that the government had worked the backchannels - and Mayawati's 21-member BSP, which won't be on the same page as the SP, could tacitly help the UPA. The 13-member non-NDA, non-UPA group - which includes the Left, SP and RJD and accounts for 87 MPs - appeared more keen on Tuesday's bandh over price rise than the cut motion. Said an RJD leader: "What is the point of pressing for a cut motion when an entire clutch of demands will be voted on and we will not be able to tell the people what our cut motion is about?.
Nationwide bandh affects life in WB, Kerala
A 12-hour nation-wide bandh called by 13 non-NDA and non-UPA parties today to protest against price rise hit normal life and affected air and rail services especially in Left-ruled states of West Bengal and Kerala. The ''Bharat Bandh'' which began at 6 am also had some impact in Orissa, Uttar Pradesh and Bihar.
Sporadic protests marked the hartal elsewhere in the country including in the Capital. Streets in West Bengal and Kerala where educational institutions were also closed wore a deserted look.
Besides the four Left parties, the 13-party grouping which gave the call for the bandh consists of AIADMK, BJD, SP, RJD, TDP, RLD, LJP, JD-S and INLD. The grouping is pressing for a roll-back in the hike in prices of petrol, diesel and fertiliser. Rail services were disrupted in many parts of Uttar Pradesh and three buses torched in Lucknow.
SP supremo Mulayam Singh Yadav''s son and MP Akhilesh Yadav was detained in Lucknow while leading protestors. "A total bandh has been implemented in Bihar.
All services are disrupted," claimed RJD chief Lalu Yadav. CPI-M leader Brinda Karat claimed the bandh is ''very successful'' in large parts of the country while Mulayam warned of anarchy by people if price rise is not checked.
Two train passengers were injured as a clash broke out between travellers in Ganga Sagar Express and bandh supporters at Pandua station in Hoogly district. In West Bengal road and rail services and flight operations were badly affected and shutters in commercial areas were down.
Hundreds of passengers were stranded at railway stations and airports for want of transport. Airport sources in Kolkata said only ten out of 25 domestic and international flights took off this morning.
They included flights of Air-India, Jet Airways and Jetlite. An Eastern Railway spokesperson told PTI that due obstructions put up by bandh supporters at several stations, train services were disrupted at Howrah and Sealdah division.
Long-distance trains were stranded at various stations as bandh supporters sat on the railway tracks. Reports from Kerala said the protesters picketed trains in different stations.
Both private and state run bus services, taxis, autorickshaws and commercial vehicles are also keeping off the roads. However, no violence was reported, police said.
Vehicular movement was affected across BJD-ruled Orissa as bandh supporters blocked national highways, state highways and other roads, putting a halt to plying of passenger buses, trucks, taxis and auto-rickshaws, police sources said. Rail services were also affected as trains were stopped at different stations for a brief period, they said.
Normal life in several parts of Jharkhand was affected due to the bandh and the 48-hour shutdown by the CPI(Maoist). The bandh supporters squatted on railway tracks in Jamshedpur, Jamtara, Giridih and Koderma as the railway authorities cancelled half-a-dozen passenger trains in Jamshedpur.
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Lok Sabha
Chapter XIX
FINANCIAL BUSINESS
BUDGET
Presentation of Budget
204. (1) The Annual Financial Statement or the Statement of the Estimated Receipts and Expenditure of the Government of India in respect of each financial year (hereinafter referred to as 'the Budget') shall be presented to the House on such day as the President may direct.
(2) The Budget shall be presented to the House in such form as the Finance Minister may, after considering the suggestions, if any, of the Estimates Committee, settle.
No discussion on day of presentation
205. There shall be no discussion of the Budget on the day on which it is presented to the House.
DEMANDS FOR GRANTS
206. (1) A separate demand shall ordinarily be made in respect of the grant proposed for each Ministry, provided that the Finance Minister may include in one demand grants proposed for two or more Ministries or Departments or make a demand in respect of expenditure which cannot readily be classified under particular Ministries.
(2) Each demand shall contain first a statement of the total grant proposed and then a statement of the detailed estimate under each grant divided into items.
General discussion on Budget
207. (1) On a day to be appointed by the Speaker subsequent to the day on which the Budget is presented and for such time as the Speaker may allot for this purpose, the House shall be at liberty to discuss the Budget as a whole or any question of principle involved therein, but no motion shall be moved nor shall the Budget be submitted to the vote of the House.
(2) The Finance Minister shall have a general right of reply at the end of the discussion.
(3) The Speaker may, if he thinks fit, prescribe a time limit for speeches.
Voting of demands for grants
208. (1) The Speaker shall, in consultation with the Leader of the House, allot so many days as may be compatible with the public interest for the discussion and voting of demands for grants.
(2) On the last day of the allotted days at 17.00 hours or at such other hour as the Speaker may fix in advance, the Speaker shall forthwith put every question necessary to dispose of all the outstanding matters in connection with the demands for grants.
(3) Motions may be moved to reduce any demand for grant.
(4) No amendments to motions to reduce any demand for grant shall be permissible.
(5) When several motions relating to the same demand for grant are offered, they shall be discussed in the order in which the heads to which they relate appear in the Budget.
Cut motions
209. A motion may be moved to reduce the amount of a demand in any of the following ways:-
(a) 'that the amount of the demand be reduced to Re.1/-' representing disapproval of the policy underlying the demand. Such a motion shall be known as 'Disapproval of Policy Cut'. A member giving notice of such a motion shall indicate in precise terms the particulars of the policy which he proposes to discuss. The discussion shall be confined to the specific point or points mentioned in the notice and it shall be open to members to advocate an alternative policy;
(b) 'that the amount of the demand be reduced by a specified amount' representing the economy that can be effected. Such specified amount may be either a lump sum reduction in the demand or omission or reduction of an item in the demand. The motion shall be known as 'Economy Cut'. The notice shall indicate briefly and precisely the particular matter on which discussion is sought to be raised and speeches shall be confined to the discussion as to how economy can be effected;
(c) 'that the amount of the demand be reduced by Rs.100/-' in order to ventilate a specific grievance which is within the sphere of the responsibility of the Government of India. Such a motion shall be known as 'Token Cut' and the discussion thereon shall be confined to the particular grievance specified in the motion.
Admissibility of cut motions
210. In order that notice of motion for reduction of the amount of demand may be admissible, it shall satisfy the following conditions, namely:-
(I) it shall relate to one demand only;
(ii) it shall be clearly expressed and shall not contain arguments, inferences, ironical expressions, imputations, epithets or defamatory statements;
(iii) it shall be confined to one specific matter which shall be stated in precise terms;
(iv) it shall not reflect on the character or conduct of any person whose conduct can only be challenged on a substantive motion;
(v) it shall not make suggestions for the amendment or repeal of existing laws;
(vi) it shall not refer to a matter which is not primarily the concern of the Government of India;
(vii) it shall not relate to expenditure charged on the Consolidated Fund of India;
(viii) it shall not relate to a matter which is under adjudication by a court of law having jurisdiction in any part of India;
(ix) it shall not raise a question of privilege;
(x) it shall not revive discussion on a matter which has been discussed in the same session and on which a decision has been taken;
(xi) it shall not anticipate a matter which has been previously appointed for consideration in the same session;
(xii) it shall not ordinarily seek to raise a discussion on a matter pending before any statutory tribunal or statutory authority performing any judicial or quasi-judicial functions or any commission or court of enquiry appointed to enquire into, or investigate any matter:
Provided that the Speaker may in his discretion allow such matter being raised in the House as is concerned with the procedure or stage of enquiry, if the Speaker is satisfied that it is not likely to prejudice the consideration of such matter by the statutory tribunal, statutory authority, commission or court of enquiry; and
(xiii) it shall not relate to a trivial matter.
Speaker to decide admissibility
211. The Speaker shall decide whether a cut motion is or is not admissible under these rules and may disallow any cut motion when in his opinion it is an abuse of the right of moving cut motions or is calculated to obstruct or prejudicially affect the procedure of the House or is in contravention of these rules.
Notice of cut motions
212. If notice of a motion to reduce any demand for grant has not been given one day previous to the day on which the demand is under consideration, any member may object to the moving of the motion, and such objection shall prevail, unless the Speaker allows the motion to be made.
Presentation of Budget in parts
213. Nothing hereinbefore contained shall be deemed to prevent the presentation of the Budget to the House in two or more parts and when such presentation takes place, each part shall be dealt with in accordance with these rules as if it were the Budget.
Vote on Account
214. (1) A motion for vote on account shall state the total sum required and the various amounts needed for each Ministry, Department or item of expenditure which compose that sum shall be stated in a schedule appended to the motion.
(2) Amendments may be moved for the reduction of the whole grant or for the reduction or omission of the items whereof the grant is composed.
(3) Discussion of a general character may be allowed on the motion or any amendments moved thereto, but the details of the grant shall not be discussed further than is necessary to develop the general points.
(4) In other respects, a motion for vote on account shall be dealt with in the same way as if it were a demand for grant.
Supplementary etc. grants and votes of credit
215. Supplementary, additional, excess and exceptional grants and votes of credit shall be regulated by the same procedure as is applicable in the case of demands for grants subject to such adaptations, whether by way of modification, addition or omission, as the Speaker may deem to be necessary or expedient.
Scope of debate on supplementary grants
216. The debate on the supplementary grants shall be confined to the items constituting the same and no discussion may be raised on the original grants nor policy underlying them save in so far as it may be necessary to explain or illustrate the particular items under discussion.
Token grant
217. When funds to meet proposed expenditure on a new service can be made available by reappropriation, a demand for the grant of a token sum may be submitted to the vote of the House and, if the House assents to the demand, funds may be so made available.
APPROPRIATION BILL
Procedure regarding Appropriation Bill
218. (1) Subject to the provision of the Constitution, the procedure in regard to an Appropriation Bill shall be the same as for Bills generally with such modifications as the Speaker may consider necessary.
*1[(2) *** *** ***]
*2[The debate on an Appropriation Bill shall be restricted to matters of public importance or administrative policy implied in the grants covered by the Bill which have not already been raised while the relevant demands for grants were under consideration.]
(3) The Speaker may, in order to avoid repetition of debate, required members desiring to take part in discussion on an Appropriation Bill to give advance intimation of the specific points they intend to raise, and he may withhold permission for raising such of the points as in his opinion appear to be repetitions of the matters discussed on a demand for grant or as may not be of sufficient public importance.
(4) If an Appropriation Bill is in pursuance of a supplementary grant in respect of an existing service, the discussion shall be confined to the items constituting the same, and no discussion shall be raised on the original grant nor the policy underlying it save in so far as it may be necessary to explain or illustrate a particular item under discussion.
*3[(5) The Speaker may, if he thinks fit, prescribe a time limit for speeches.]
FINANCE BILL
Procedure regarding Finance Bill
219. (1) In this rule "Finance Bill" means the Bill ordinarily introduced in each year to give effect to the financial proposals of the Government of India for the next following financial year and includes a Bill to give effect to supplementary financial proposals for any period.
(2) At any time after the introduction in the House of a Finance Bill, the Speaker may allot a day or days, jointly or severally, for the completion of all or any of the stages involved in the passage of the Bill by the House, and when such allotment has been made, the Speaker shall *4[may, at the specified hour] on the allotted day or the last of the allotted days, as the case may be, forthwith put every question necessary to dispose of all the outstanding matters in connection with the stage or stages for which the day or days have been allotted:
Provided that if a Minister has a right of reply to the debate on the motion which is under discussion *5[an hour before the specified hour] and has not commenced his reply at that hour, the Speaker shall inquire how much time not exceeding one hour he requires for his reply, and shall call upon any member for the time being addressing the House to resume his seat at such time as will leave available before *6[the specified hour] the amount of time which the Minister has stated that he requires for his reply.
(3) Where the question or one of the questions required by sub-rule (2) to be put at *7[the specified hour] on the allotted day or the last of the allotted days is that the Bill be passed, sub-rule (2) shall have effect notwithstanding that amendments to the Bill have been made.
(4) Subject to the proviso to sub-rule (2), the Speaker may, if he thinks fit, prescribe a time limit for speeches at all or any of the stages for which a day or days have been allotted under that sub-rule.
(5) On a motion that the Finance Bill be taken into consideration, a member may discuss matters relating to general administration, local grievances within the sphere of the responsibility of Government of India or monetary or financial policy of Government.
(6) In other respects the rules applicable to Bills in Chapter X of these rules shall apply.
GENERAL PROVISIONS REGARDING FINANCIAL BUSINESS
Business that can be taken up on day allotted for financial business
220. Notwithstanding that a day has been allotted for financial business under rules 207, 208, 218 or 219, a motion or motions for leave to introduce a Bill or Bills may be made and a Bill or Bills may be introduced on such day before the House enters on the business for which the day has been allotted.
Timely completion of financial business
221. In addition to the powers exercisable under these rules, the Speaker may exercise all such powers as are necessary for the purpose of the timely completion of all financial business including allotment of time for the disposal of various kinds of such business, and where time is so allotted, he shall, at the appointed hour, put every question necessary to dispose of all the outstanding matters in connection with the stage or stages for which time has been allotted.
Explanation.- Financial business includes any business which the Speaker holds as coming within this category under the Constitution.
[For rules relating to Committees on Public Accounts, Estimates and Public Undertakings, see Chapter XXVI of these rules.]
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http://parliamentofindia.nic.in/ls/rules/rulep19.html
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7 Apr 2010 ... Caste Bias, the Greatest Corruption in judiciary, Says Waman Meshram. Caste Bias, the Greatest Corruption in judiciary, Says Waman Meshram ...
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22 Apr 2010 ... Waman Meshram Demands OBC Headcount for social Justice and Planning as Bharat ..... Caste Bias, the Greatest Corruption in judiciary, . ...
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title
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CHAPTER VII
CHAPTER VIIA
CHAPTER VIIB
RESIGNATION OF SEATS IN THE HOUSE
MOTIONS 41. (1) All motions, notice of which is received in the Lok Sabha Secretariat under the rules, shall be classified under the following categories, namely:--
(iii) Subsidiary Motions, which are further divided into three classes:--
(2) The classification referred to in (i) above shall be used in the case of appropriate motions. The rules governing these motions shall be as follows:--
(i) Substantive Motions.-- A substantive motion is a self-contained independent proposal submitted for the approval of the House and drafted in such a way as to be capable of expressing a decision of the House, e.g., all resolutions are substantive motions.
(ii) Substitute Motions.-- Motions moved in substitution of the original motion for taking into consideration a policy or situation or statement or any other matter are called substitute motions. Such motions, though drafted in such a way as to be capable of expressing an opinion by themselves, are not strictly speaking substantive motions inasmuch as they depend upon the original motion.
(iii) Subsidiary Motions.-- They depend upon or relate to other motions or follow upon some proceedings in the House. They by themselves have no meaning and are not capable of stating the decision of the House without reference to the original motion or proceedings of the House. Subsidiary motions are further divided into:--
(a) Ancillary Motions.---They are motions which are recognized by the practice of the House as the regular way of proceeding with various kinds of business. The following are the example of ancillary motions, namely:--
(i) That the Bill be taken into consideration.
(b) Superseding Motions.---They are motions which, though independent in form, are moved in the course of debate on another question and seek to supersede that question. In that class fall all the dilatory motions. The following motions are superseding motions in relation to the motion for taking into consideration a Bill:--
(i) That the Bill be re-committed to a Select Committee.
(ii) That the Bill be re-committed to a Joint Committee of the Houses.
(iii) That the Bill be re-circulated for eliciting further opinion thereon.
(iv) That consideration of the Bill or the debate on the Bill be adjourned sine die or to some future date.
(c) Amendments.-- They are subsidiary motions which interpose a new process of question and decision between the main question and its decision. Amendments may be to the clause of a Bill, to a resolution or to a motion, or to an amendment to a clause of a Bill, resolution or motion.
Member to be shown in proceedings as mover of motion,amendment or cut motion
42. Where a motion, an amendment or a cut motion placed on the order paper in the names of several members is treated as moved on an indication being given by such members in writing to the Speaker, it shall be deemed to have been moved by the member whose name appears first on the order paper and if he is not present in the House or has not indicated his intention to move, then by the second member or the third member etc., who may be present and the name of only such member shall be shown in the proceedings as the mover of that motion, amendment or cut motion, as the case may be.
Amendment orcut motion moved but not put to vote
43. When an amendment or a cut motion is moved but not put to the vote of the House by the Speaker and the original motion or demand for grant is passed by the House, the amendment or cut motion shall be deemed to have been negatived by the House.
Amendment or motion moved but not pressed
44. If at the end of the debate, a member who has moved an amendment or a motion which has also been proposed by the Chair, informs the Chair that he does not want to press it and if thereupon the amendment or motion is not put by the Chair to the vote of the House, such amendment or motion shall be deemed to have been withdrawn by the leave of the House
Provided that if any member requests the Chair to put the amendment or motion to the vote of the House, the amendment or motion shall be put to the vote of the House.
Order of putting substitute motions to vote
45. (1) When substantive motions have been moved by members in substitution of a motion under rule 342, the Speaker may, in his discretion, put them to the vote of the House in the following order:--
(I) Motions expressing disapproval of the policy or action of Government referred to in the original motion; and
(ii) Motions expressing approval of the policy or action of Government referred to in the original motion.
(2) Where any of the substantive motions moved in substitution of a motion under rule 342, is not put to the vote of the House by the Speaker, and any such other substantive motion in substitution of the same motion is passed by the House, the one not put to the House shall be deemed to have been negatived by the House or barred, as the case may be
Date for report in motion for reference of a Bill to Select Joint Committee
46. When a motion is moved for reference of a Bill to a Select Committee or to a Joint Committee of the Houses with the concurrence of the Rajya Sabha, the motion shall specify a definite date on or before which the Select Committee or the Joint Committee shall be instructed to report:
Provided that if on the date specified the House is not in session, the report shall be submitted to the Speaker who shall cause it to be laid before the House as soon as possible after the reassembly of the House.
47. On a day allotted for the disposal of private members' Bills, a Bill in respect of which the motion is that leave be granted to withdraw the Bill, shall be set down in the list of business for that day immediately after the Bills for introduction.
Procedure when two calling attention admitted for a day
47A. (1) Where under rule 197(3) two calling attention matters have been included in the list of business for a day, the Minister concerned may make a brief statement in respect of the first matter. In respect of the second matter, a statement may be laid on the Table by the Minister concerned. Copies of the statement so laid shall be supplied to the members in whose names the item stands in the list of business [*1] and the Minister shall reply at the end to the clarificatory questions asked thereon.
(2) If the Prime Minister is to make a statement in response to one of the two calling attention matters on a day, that matter may be given inter se priority in the list of business
CHAPTER VIIB
RESIGNATION OF SEATS IN THE HOUSE
47B. (1) A letter of resignation under rule 240 of the Rules of Procedure shall become effective only after it is accepted by the Speaker.
(2) The resignation shall take effect from the date from which the resignation is accepted by the Speaker and it shall not open to a member to withdraw the resignation after it is accepted by the Speaker.
(3) If the member has specified a future date for his resignation to take effect, the resignation shall take effect from the date so specified if the Speaker has accepted the resignation by that date.
(4) The resignation shall not be accepted from a date earlier than the one on which it is received by the Speaker or in the Lok Sabha Secretariat.
[*1]. Added by L.S. Bn. (II) daated 10-5-`989, para 2931.
http://parliamentofindia.nic.in/ls/direct/dirp7.html
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Parliament storm: Dantewada now; cut motion, Tharoor later
15 Apr 2010 ... It has been a stormy day in Parliament already, with three adjournments of both Houses and a scathing attack by the Opposition on the ...
www.ndtv.com/.../government-faces-cut-motion-in-house-20028.php - Cached -
Cut Motion in Parliament | Cut Motion
27 Apr 2010 ... Cut Motion in Parliament | Cut Motion | Cut Motion Govt | Cut Motion News | Cut Motion UPA Govt | UPA To Faces Cut Motion | Voting on the ...
current-news.mywebdunia.com/.../cut_motion_in_parliament_cut_motion.html - 3 hours agoGet more results from the past 24 hours
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Cut Motion in Parliament : Haryana News | World News
27 Apr 2010 ... Cut Motion is political term which is used in the parliament of India. Cut motion is used for mainly three types of cut in the budget which ...
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Cut Motion In Parliament Against UPA
Manmohan Singh, Prime Minister will face the cut motions against its UPA-II government on Tuesday in Parliament against price rise of fuel.
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Cut Motion in Parliament
Haryana News - 58 minutes ago
Cut Motion is political term which is used in the parliament of India. Cut motion is used for mainly three types of cut in the budget which are Economic cut ...Cut motion: BSP to support UPA - Times of India
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Opposition groups to move cut motions on budget proposals
Sify - 10 hours ago
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BJP files Breach of Privilege Motion against Prime Minister
BreakingNewsOnline. - 1 hour ago
While the opposition parties crumbled over the issue of cut motion, the BJP went on an ... probe (JPC) on phone tapping and IPL outside the Parliament. ...NDTV.com
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BJP, Left firm up strategy
The Hindu - Neena Vyas - 13 hours ago
The corridors of Parliament House were abuzz with speculation that the SP and the RJD were less than enthusiastic about the cut motions. ...Mulayam, Lalu plan new strategy over cut motion - Economic Times
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DMK issues whip over cut motion
The Hindu - 17 hours ago
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Ahead of cut motion Oppn calls for bandh
Times Now.tv - 5 hours ago
The Nation wide bandh, called a day after the opposition created a rukus in the Parliament has been chalked out by 13 parties, including the Left parties, ...Bharat bandh hits air, rail traffic in WB, Kerala - IBNLive.com
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Original copies of some IPL contracts with Modi: Shetty
BCCI CAO Ratnakar Shetty today said suspended IPL Commissioner Lalit Modi did not provide the Board with original papers of some of the contracts, including those of three losing bids in the inaugural IPL and media rights deal with Multi Screen Media. Asked what are the documents he would be looking for, Shetty said, "The tax authorities and Enforcement Directorate are inquiring for a lot of papers connected with IPL and in some cases we don''t have original documents.
We have only xerox copies which they feel is not proper." "According to (IPL CEO) Sundar Raman the original documents are with Lalit Modi.
My job is to put up a list of documents that were supposed to be with IPL and original documents obtained in each case," said Shetty who has been entrusted by the Board chief Shashank Manohar to look into the missing documents. Shetty said no original copies of the three losing bidders of the inaugural IPL were available nor did they have documents of media rights deal between MSM and the Board.
"In January 2008 there were 11 bidders (to own the franchises) and only the original documents of the eight winning bidders are with BCCI. We don''t have the original documents of the three losing bidders, we have only xerox copies. Obviously those documents should be Modi.
I hope Lalit would give them which are the property of BCCI," he said. "There were some documents which were important like the media rights documents between MSM and BCCI which was renegotiated in 2009.
Original copies of such documents were not available. "Media rights document was not discussed in IPL Governing Council, it was reported in the BCCI Working Committee that there has been a fresh document entered into between BCCI and Sony Max and amount for which was negotiated.
Nothing beyond that," he told ''CNN-IBN''. Shetty also said BCCI didn''t interfere in IPL''s working as Modi was also the board Vice President.
"IPL started as a separate wing of BCCI. Separate office was set up and several people employed. Lalit being BCCI vice-president it was a question of authority he had in BCCI that he was running the show.
And the administrative wing of BCCI therefore did not interfere in IPL''s working."
Why so surprised?
More in Opinion by Sambit Bal
Rig to leak: BCCI throws the kitchen sink at Modi
BCCI firewalls Pawar, trains guns on Modi
IPL 2010: Spotlight on Rajasthan Royals as Lalit Modi row escalates
Kochi franchise complains against Modi
Don't interfere in running IPL: BCCI chief
IPL: Whose brand is it anyway?
Shocking details of Modi's dubious deals, ways revealed
IPL ringmaster suspended as scandal fallout sparks Parliament protest
Timeline of articles
| Why so surprised? 46 minutes ago - CricInfo.com | |
| Indian cricket fans react to IPL corruption allegations 17 hours ago - BBC Sport | |
| IPL: Chirayu Amin in charge; Modi suspended for rigging bids, giant bribes Apr 26, 2010 - NDTV.com | |
| BCCI suspends Lalit Modi Apr 25, 2010 - NDTV.com | |
| Lalit Modi to attend IPL Governing Council meeting Apr 25, 2010 - Economic Times | |
| BCCI to suspend defiant Modi at Monday meet Apr 24, 2010 - Times of India | |
| Can IPL escape unscathed from scandal and scrutiny? Apr 23, 2010 - Times of India | |
| Lalit Modi takes his fight to court Apr 23, 2010 - NDTV.com | |
| Gen Y has a soft corner for Lalit Modi Apr 22, 2010 - Times of India | |
| BCCI: Modi wrong to have leaked internal emails Apr 21, 2010 - NDTV.com |
IGIA is not secure?
Security agencies are asking whether the Delhi Airport Limited is serious about securing the Indira Gandhi International Airport. More
Stimulus rollback is in best interest of economy: RBI
Bandh against price rise fails to evoke response in Delhi
Nationwide bandh affects life in Bengal, Kerala
Opposition's bandh against price rise hits life in West Bengal, Kerala, UP
Opposition's Bharat bandh: Air, rail traffic disrupted
Bharat Bandh paralyses Normal Life in Orissa
Bharat bandh in Bengal to cost Rs 500 cr
Bandh paralyses life in West Bengal
Left-led Bharat bandh hits normal life in 13 states
Left strike shuts down Bengal, Kerala, Tripura
Timeline of articles
| Bharat bandh hits air, rail traffic in WB, Kerala 4 hours ago - IBNLive.com |
Asserting that the withdrawal of stimulus is in the best interest of the economy in the current scenario of high inflation, the RBI said that it has started unwinding the emergency measures plugged in during the financial crisis. "The details are not important, but what message you must get is that we have begun in earnest the process of reversing from the expansionary stance," Reserve Bank of India Governor Duvvuri Subbarao said in his address to the Peterson Institute for International Economics, a Washington-based think tank, on Monday.
"We started unwinding in October 2009. We terminated unconventional measures first, we raised SLR and brought it back to the pre-crisis level, we raised the CRR on the banks by 75 basis points by end of January and another 25 basis points last week.
We raised policy rates, once mid-March and again last week by a total of 50 basis points," said Subbarao. On whether reversal of monetary stimulus was anti-growth, the he said: "In the near-term, perhaps it could be anti-growth.
There is certainly a sacrifice ratio there, but even in the long-term and the medium-term, sustained inflation is inimical to growth. So we have got to get inflation under control," he said.
Over the past few days, Subbarao attended the annual Spring Meeting of the World Bank and the International Monetary Fund, besides those of the Finance Ministers of G-20 and BRIC countries on the sidelines. Noting that getting into the expansionary stance was relatively simple, the RBI governor said the dilemma is how to calibrate the withdrawal.
"The tolerance for error was relatively more. But as we exit over the crisis, I have realised that you got to be much more calibrated, because of the implications of what you do and if you get it wrong the implications can be quite big," he said.
Referring to the RBI outlook released last week, the growth for the year 2010-11 is projected to be eight per cent plus. "WPI inflation, we believe would be about 5.5 per cent by end of March," he said.
Subbarao said the Indian banking system had no exposure to tainted assets or stressed institutions and the country''s growth emanates from domestic demand and domestic investment as the exports are less than 15 per cent. He said India was hit by the global economy crisis because it is now more closely integrated with the rest of the world and the financial integration is as deep as trade integration.
The Bharatiya Janata Party (BJP)on Tuesday gave a breach of privilege notice in the Lok Sabha against Prime Minister Manmohan Singh for his remarks outside the house rejecting the need for a joint parliamentary committee (JPC) to probe the phone-tapping and IPL controversy.
"The opposition has been demanding there should be a JPC. The parliamentary tradition demands that the prime minister should make his statement in the house. This is a serious breach of privilege," senior BJP leader Ananth Kumar told reporters here.He said the two houses had seen adjournments on the issue for the past three days. The prime minister should have commented on the issue inside parliament.
Kumar said he had signed the notice for breach of privilege along with the party's deputy leader in the Lok Sabha, Gopinath Munde, and party leader Yashwant Sinha.
Earlier, speaking in the Lok Sabha, Leader of Opposition Sushma Swaraj lashed out at the prime minister for stating outside the house late Monday that there was no need for a JPC probe on the phone tapping charges and the raging Indian Premier League (IPL) row.
Sushma Swaraj said she was "shocked to see in the newspaper" the prime minister's statement.
"This is not an ordinary thing. This is an insult to the august house," she said.
Bid was tranparent and in compliance with norms: RR
Stung by allegations of irregularities in their initial bid, Rajasthan Royals today insisted that the consortium neither flouted any norms nor hid any information from the BCCI about its shareholding pattern. Claiming that their bid was in complete compliance with the BCCI and IPL guidelines, Rajasthan revealed their shareholding in which a majority stake of 44.2 per cent is held by Suresh Chellaram, the brother-in-law of suspended IPL chief Lalit Modi.
The team stated that their bid consortium was led by the UK-based Emerging Media (IPL) Ltd. and denied BCCI chief Shashank Manohar''s allegation that the bidders'' identity was not known.
"The other entities in the consortium were disclosed in the bid submission documents," the statement read. "The current shareholders of EM Sporting Holdings Limited, who all have multiple business interests and independent means, are as follows: Emerging Media (IPL) Ltd (Manoj Badale - 32.4per cent), Tresco International Ltd (Suresh Chellaram Family - 44.2 per cent), Blue Water Estate Ltd (Lachlan Murdoch - 11.7 per cent) and Kuki Investments Ltd (Raj Kundra & Family - 11.7 per cent).
There are no other shareholders," it added. Rajasthan team owners said the revelation of the shareholding pattern is meant to clarify "certain misconceptions about the franchise, which have been raised through the media.
" The team rejected suggestions that the Rajasthan bid flouted norms. "The Rajasthan Royals franchise bid was successful, with full compliance of BCCI guidelines, in a process conducted with the committee members of BCCI in January 2008.
Full details of the consortium bid structure and the way the company would be set up were contained in the original submission to the BCCI in January 2008," the team said. "The structure has been completely transparent and in accordance with regulatory guidelines ever since.
The corporate structure was established in accordance with the details provided in the bid submission shortly after the bid. It was not established prior to the bid, as we obviously did not know if the bid would be successful," it added.
The team said that Indian company Jaipur IPL Cricket Pvt Ltd. was incorporated only in 2008 but the BCCI was kept abreast about all the developments.
"On March 8, 2008, an Indian company Jaipur IPL Cricket Pvt Ltd was incorporated, as detailed in the bid submission. We then executed the franchise agreement on 14 April 2008.
BCCI yet to log off Modi from IPL website!
Country''s top cricket authority BCCI may have suspended Lalit Modi as IPL Commissioner, but the suave former chief of 20-20 cricketing extravaganza can still be seen smiling on the website of Indian Premier League. Moreover, the official website of IPL still mentions Modi as the Chairman and Commissioner of IPL Governing Council and lists out his achievements despite having been suspended by the Board of Control for Cricket in India (BCCI).
"Lalit Kumar Modi is one of the most accomplished cricket administrators in the world.
He is one of the driving forces behind the board''s commercial activities and has been instrumental in pushing its revenues over the USD 4 billion mark," the website reckons.
"But for future generations, his biggest legacy would be the Indian Premier League. He is the man behind the spectacularly successful franchise-based cricket league that has captivated audiences globally," it adds.
On its homepage, the IPL continues to have a ''Modi Tweets'' column, which continuously updates all the tweeter messages of the suspended IPL Commissioner. These messages include Modi mentioning that he "had a restful day (after the finals).
(He has) been in the spa all day. (He had the) much needed rest.
" In other messages Modi thanks his fans and supporters and declares he is "still the chairman of IPL. Just suspended." Modi has not elaborated, but his message, "wait-we have just begun", is being widely interpreted as a threat to expose his detractors.
In one of his earlier tweets, Modi had threatened to expose all the people who have tried to bring the game into disrepute. Yesterday, the BCCI President Shashank Manohar charged Modi with serious financial irregularities in the bid documents of Rajasthan Royals and Kings XI Punjab and rigging the IPL bids of the two new franchises -- Pune and Kochi.
The other charges included irregularities in the broadcast and internet deals and his behavioral patterns for which he has been given 15 days to respond.
Tue, Apr 27 04:34 AM
BCCI president Shashank Manohar on Monday gave details of the five charges that led to Lalit Modi's suspension. This is what Manohar said during the press conference:
Rajasthan and Punjab bids
"There is a chargesheet already issued to him (Modi, by the IT department). There was a company in the UK by the name of Emerging Media IPL. The company was owned by a single individual — Manoj Badale. The company was started four months before the bid. His bid was accepted. However, the agreement is signed with Jaipur IPL (Jaipur IPL Cricket Private Limited). This is a company with only two stakeholders at the time the agreement was signed — Castelinho and Bal Thakur.
"Now, the bid is given by A and the document signed by B, who had nothing to do with the bid. Then, separate companies come in, registered in Mauritius. Modi made a statement that the entire world knows (who the stakeholders) in the franchises are. But even members of the governing council were not aware. As I said, in Rajasthan Royals, Jaipur IPL is the main company. The shares of these two persons are then sold and transferred to certain individuals and companies like Tresco and Blue Waters. Nobody knows what Blue Waters and Tresco are. I did not find in the shareholders' register the names of Mr Raj Kundra and Shilpa Shetty, who claim to be the stakeholders.
"There is a clause in the agreement, entered into with all the franchises, that if you transfer your shares, it has to be with the permission of the IPL and the board is entitled to 5% of the transaction amount as fees. Nothing of this (sort) has happened. So we are asking, if A gives the bid, how do you sign agreement with B? How does (sic) all these people get into this? None of us are aware and we don't know who these companies are."
"In the case of Kings XI Punjab, when the bids were given, it was signed only by Preity Zinta. She said she will form a consortium with three people: Mohit Burman, one Karan Paul and one more. When the franchise agreement was signed by her, she did not have a single share in that company. The shares were transferred to her after signing the agreement. Then Gaurav Burman gets in and the rest (of the things happen). Again the same logic should be applied: you need to have the consent of the IPL and the fee. But nothing happened."
Broadcasting rights
"There are allegations that a facilitation fee was paid. But the board does not have the document. This deal happened between MSM (Multi Screen Media) Singapore and WSG Mauritius, so there is no reason why this document would be with the board. Since I don't have it, I don't see any reason why we should be aware of this. If you take Rajasthan Royals, people are saying there is benami (proxy) funding. If the funds are coming from Mauritius, or from Virgin Islands, I do not have any machinery to find out. Now the IT department and the ED are investigating; we became aware of it only when they gave us the notice.
"We don't have the original documents of the Sony broadcasting deal. The income tax authorities are asking for it but all the documents of the execution are with Lalit Modi."
Rigging of franchise bids in 2010
"There is no question of irregularities with regard to the two new franchises. Because of the bid conditions, which were unreasonable when the first tender was issued, the governing council decided to cancel it. As far as the two new bids are concerned, there is no irregularity as far as the board is concerned. There is a complaint from the Kochi franchise that they were arm-twisted by Modi to surrender their rights in favour of somebody else."
Internet Rights
Manohar wasn't asked anything on this.
Behavioural Pattern
ICC's anti-corruption, security unit chief resigns
Sydney, Apr 27 (ANI): The chief investigator of the International Cricket Council's anti-corruption and security unit, Ravi Sawani, has resigned as the game confronts its most serious integrity issue in a decade.
With Indian Premier League commissioner Lalit Modi suspended amid corruption allegations, and with a disputed report from Indian income tax department reportedly implicating 27 players in spot-fixing at last year's IPL, cricket faces its greatest tests on match-fixing charges.
Sawani handed his resignation letter to his employers. His move comes as Paul Condon, the ACSU's long-serving chairman, prepares to retire in June, leaving a leadership vacuum in the unit.
Condon's replacement is expected to be named within a month, The Sydney Morning Herald reports.
Sawani's resignation is not linked to the scandal engulfing Modi and the IPL, but rather a disagreement with ICC brass.
Security officials fear there has been a dramatic rise in spot-fixing, engineering outcomes within matches, since the advent of Twenty20.
Illegal bookmakers, whose activities were slashed after the formation of the ACSU in 2000, have been emboldened by their advances into Twenty20 and have been seen in increasing numbers around team hotels and functions.
The report about involvement of a famous Australian cricketer who allegedly helped fix Indian Premier League matches played in South Africa last year has been denied by the Indian tax authorities.
Tue, Apr 27 01:49 PM
Enlarge Photo Trade Minister Anand Sharma looks on during a news conference after a G20 ministerial meeting... There is no change in India's policy on opening up retail sector to more foreign direct investment (FDI) as of now, Trade Minister Anand Sharma told reporters on Tuesday.
The current policy allows 51 percent FDI in single-brand retail only.
(Reporting by Rajesh Kumar Singh and Manoj Kumar)
P. Chidambaram
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I don't fear IT probe: Shilpa Shetty
From Royal dream, Shilpa wakes up
Raj, me are co-owners of Rajasthan Royals, asserts Shilpa
Preity, Shilpa: Faces of IPL teams, but names are missing from documents
Shilpa Shetty in IPL suspense thriller
I'm brand ambassador of RR only: Shilpa
Shilpa tweets allegations are untrue
Rajasthan Royals' owners allegedly flouted FEMA
Shilpa: BCCI have insulted us
Bollywood Actress and IPL Ambassador Shilpa Shetty in the Fast Lane
National News
Katrina pairs up with Hrithik in Zoya''s next
Mumbai, Apr 27 (PTI) Katrina Kaif will be seen romancing Bollywood heartthrob Hrithik Roshan for the first time in Zoya Akhtar's film 'Zindagi Milegi Na Dubara'.
- Two students drown in Ganga PTI - 02:02 PM
- UP STF gun down two suspected criminals ANI - 02:00 PM
- Purulia arms drop case: CBI Director hopeful about Danish national's extradition ANI - 02:00 PM
- Pakistan, India signal their prime ministers may meet Reuters - 01:58 PM
- Jaya''s plea for discharge dismissed PTI - 01:44 PM
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Dantewada massacre: Probe panel blames poor leadership
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Dantewada glare on leadership
Rammohan submits inquiry report on Dantewada Naxal attack
Dantewada report submitted
CRPF massacre probe points to security lapse
General
- Nityananda discharged from hospitalPTI - 01:41 PM
Bangalore, Apr 27 (PTI) Controversial self-styled godman Nityananda Swami, arrested on rape and other charges, was discharged from a hospital today, a day after he was admitted following complaints of "severe chest pain".
- Rail, road traffic hit in Kerala; normal life hitPTI - 01:34 PM
Thiruvananthapuram, Apr 27 (PTI) Rail and road traffic in Kerala were badly hit today by the dawn-to-dusk bandh called by the Left and their allies against price rise, causing severe hardship to people paralysing normal life in the state.
- Normal life paralysed in Assam due to bandhPTI - 01:31 PM
Guwahati, Apr 27 (PTI) Normal life was paralysed today in Assam during the 12-hour nation-wide strike called by the Left-led 13-party front to protest against price rise.
- Motivational speaker sells recipe for successPTI - 01:29 PM
New Delhi, Apr 27 (PTI) He is known to have popularised self-help books in India and now motivational speaker and author Shiv Khera is out with a blueprint to sell anything to anybody.
- Woman arrested on spying chargesPTI - 01:23 PM
New Delhi, Apr 27 (PTI) A woman was arrested in the city on charges of spying, police sources said today.
Politics
- ANALYSIS - Monsoon to dispel clouds over sugar, grainReuters - 01:39 PM
A good monsoon forecast strengthens prospects for India to cut sugar imports, free up grain exports and buy more gold as rains boost supplies in the world's leading consumer of most farm commodities.
- Mayawati blames central policies for price riseANI - 01:10 PM
Lucknow, Apr 27 (ANI): Uttar Pradesh Chief Minister and Bahujan Samaj Party (BSP) chief Mayawati on Tuesday slammed the United Progressive Alliance (UPA) Government for pursuing policies leading to price rise, adding that price rise is a big worry.
- Government faces possible confidence voteReuters - 12:49 PM
The government faces a trial of strength on Tuesday with some opposition demanding a parliamentary vote to force it to resign over a hike in fuel and fertiliser prices, causing unease in the Congress-led coalition.
- Shibu Soren hunting for seat to contestIANS - 12:38 PM
Ranchi, April 27 (IANS) Jharkhand Chief Minister Shibu Soren is hunting for a safe seat to contest a by-election to get elected to the state assembly.
- Finance bill: BSP with UPA on cut motionIE - 12:37 PM
BSP supremo Mayawati has decided to support the UPA government on cut motion issue on finance bill.Mayawati hold a press conference, specifically on this issue, in Lucknow to announce the her party' stand.
Features
- Book Talk: Trapped in a quake, they share storiesReuters - Wed, Apr 21
Award-winning author Chitra Banerjee Divakaruni's latest novel about people trapped during an earthquake gets new meaning in a year that has seen devastating quakes hit Haiti, Chile and China.
- Britain's Indian curry comes home in KolkataReuters - Tue, Apr 20
Britain's version of the curry has come full circle in Kolkata, the city that claims to be where it all began, and which is now celebrating the origins of the dish that has become a staple in many households.
- One-stop shop to manage aidHT - Tue, Apr 20
In times of natural disasters, it is natural to want to help. If you don?t know where to go, there is help on hand.
- Chamba steals a march over IndiaHT - Mon, Apr 19
Much before India registered their first win over England, a local team from Chamba, an independent province then, had achieved the feat. Chamba, now one of the 12 districts of Himachal Pradesh, hosted a club team from England in 1940 and beat them hands down at its famous ?chaugan?.
- Friction in friendshipHT - Mon, Apr 19
When Richard Holbrooke, US special envoy for Afghanistan-Pakistan, came to New Delhi in January he was astonished at the scepticism he saw about American President Barack Obama.
Crime
- Gang keeps loot with finance firmHT - 10:15 AM
Robbers are not selling their loot to jewellers anymore. Three alleged criminals arrested on Sunday evening by the Noida Police would deposit them with finance companies in return for eighty per cent of the gold?s value.
- Man on way to bank robbed of Rs 19 lakhHT - 10:10 AM
Two armed men looted Rs 19 lakh from two persons on their way to a bank to deposit the money on Monday.
- Pirates rewrite script for Apple's China iPad launchReuters - Mon, Apr 26
Just three weeks after the global launch, bootleg versions of Apple Inc's hot-selling iPad tablet PCs have begun showing up on the shelves of online and real-world shops in piracy-prone China.
- U.S. lawsuit against pope not legitimate - VaticanReuters - Fri, Apr 23
The Vatican on Friday dismissed as illegitimate a lawsuit filed in the United States against Pope Benedict and his top aides over a case of sexual abuse at a school for deaf boys in Wisconsin.
- Two acquitted of kidnap, rape chargesHT - Fri, Apr 23
The sessions court on Thursday acquitted two people charged with kidnapping and raping a minor girl, after the girl testified that she had married one of the accused and left her father?s house willingly.
Business News
'Attractive' CEOs earn more
Washington, Apr 27 (ANI): A CEO's appearance can qualify the executive for a paycheck higher than his less "executive looking" colleague, according to a new study.
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- FDI stance on retail unchanged - Anand Sharma Reuters - 01:49 PM
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General
- Gur futures gain on poor supplyPTI - 01:39 PM
New Delhi, Apr 27 (PTI) Gur prices gained by Rs 11.40 or 1.23 per cent to Rs 941.60 per 40 kg, in futures trade today after paucity of stocks and poor supply in markets.
- Mentha oil futures hit 4 pc upper circuitPTI - 01:26 PM
New Delhi, Apr 27 (PTI) Mentha oil prices hit the upper limit for the second straight day by surging four per cent at Rs 832.10 per kg in futures trade today on strong local and exports demand amid limited arrivals.
- Cardamom remains higher on buying supportPTI - 01:16 PM
New Delhi, Apr 27 (PTI) Cardamom futures prices remained higher by Rs 31.30 or 2.40 per cent at Rs 1,335.50 per kg in futures trade today on increased buying by traders in view of rising spot market demand.
- Almond futures down on increased sellingPTI - 01:07 PM
New Delhi, Apr 27 (PTI) Almond prices fell by Rs 10 or 2.98 per cent at Rs 325.75 per kg in futures trade today on increased selling by traders.
- Speculation undermined Greek debt measures - MerschReuters - 12:43 PM
The measures taken by Greece to cut its budget deficit this year are "convincing and encouraging", but it has not been helped by market speculators and poor communication, European Central Bank Governing Council member Yves Mersch said in a Belgian newspaper.
India
- Mixed response to strike in Tamil NaduIANS - 01:25 PM
Chennai, April 27 (IANS) The nationwide strike called by 13 parties to protest rising food prices evoked mixed response in Tamil Nadu Tuesday.
- Price rise, cricket stall parliamentIANS - 01:22 PM
New Delhi, April 27 (IANS) Spiralling prices and Prime Minister Manmohan Singh's rejection of a probe into phone tapping and alleged wrongdoings in the lucrative Indian Premier League (IPL) stalled parliament Tuesday, forcing the adjournment of both houses.
- 12-hour strike cripples life in TripuraIANS - 01:19 PM
Agartala, April 27 (IANS) A nationwide dawn-to-dusk strike called by 13 parties against rising prices Tuesday brought life to a halt in Tripura.
- Opposition legislators evicted from Tamil Nadu assemblyIANS - 01:08 PM
Chennai, April 27 (IANS) Legislators belonging to opposition parties were ordered out of the Tamil Nadu assembly Tuesday after they staged vocal protests in the house over rising food prices.
- RCI, Jindal Steel in pact for three projectsReuters - 01:07 PM
Australia's Rocklands Richfield Ltd said on Tuesday it has signed an agreement with Jindal Steel & Power for three projects and will also appoint a nominee of the Indian company on its board.
International
- Dhaka overturns decision to lift ban on Indian filmsIANS - 12:25 PM
Dhaka, April 27 (IANS) A 45-year-old ban on import of Indian films, which a Bangladesh ministry had decided to lift causing protests from the film fraternity, will now continue following a decision by Prime Minister Sheikh Hasina.
- 'Made in China' products faked overseasIANS - 12:24 PM
Beijing, April 27 (IANS) A Chinese technology company says that 'Made in China' products are being counterfeited overseas.
- 'Dragon' conquers box officeIE - 11:07 AM
The movies that have been the biggest movers and shakers for box office collections are quite a varied bunch.
- Spain's debt rose 33.9 percent in 2009IANS - 10:26 AM
Madrid, April 27 (IANS/EFE) Spain's outstanding government debt rose 33.9 percent and totalled 461.99 billion euro ($619 billion) at the end of 2009, official statistics have said.
- India may grow still faster; inflation a 'big worry': RBI chiefIANS - 09:02 AM
Washington, April 27 (IANS) India's economic growth this year may be 'slightly higher' than the currently estimated 7.2 percent but faster inflation is a 'big worry', according to Reserve Bank of India Governor Duvvuri Subbarao.
Personal-Finance
- Indian markets end on flat noteIANS - Mon, Apr 26
Mumbai, April 26 (IANS) Indian equities markets Monday ended trade on a dull note even as blue chip stocks Sterlite and HDFC registered handsome gains.
- Indian markets end on dull noteIANS - Mon, Apr 26
Mumbai, April 26 (IANS) Indian equities markets Monday ended trade on a dull note even as blue chip stocks Sterlite and HDFC registered handsome gains.
- Sensex ends 120 points up, ICICI gainsIANS - Fri, Apr 23
Mumbai, April 23 (IANS) A benchmark index for Indian equities Friday ended 130 points higher than its previous close with gains for stocks from the banking and capital goods space.
- Sensex ends 101 points up; SBI, RIL main gainersIANS - Thu, Apr 22
Mumbai, April 22 (IANS) A benchmark index for Indian equities Thursday closed 101 points higher than its previous close, after paring intra-day gains, as State Bank of India and Reliance Industries made strong gains.
- Sensex ends flat, broader markets gainIANS - Wed, Apr 21
Mumbai, April 21 (IANS) A benchmark index for Indian equities Wednesday gave up its intra-day gains to end trade on a flat note, though buying took place in midcap and small scrips.
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Markets
- GLOBAL MARKETS - Euro slips on Greece aid uncertaintyReuters - 12:48 PM
The euro slipped on Tuesday after Germany demanded painful new austerity measures from Greece in return for badly needed financial aid, with investors likely set to push high risk European sovereign bond yields up further.
- Reuters Summit - Fed's Hoenig: US must lead reformReuters - 12:24 PM
The United States should lead the way on reforming financial regulation, which will make its banks more, not less, globally competitive, a Federal Reserve official said on Monday.
- Lloyds makes Q1 profit as bad debts dropReuters - 12:03 PM
Lloyds Banking Group, Britain's largest retail bank, returned to profit in the first three months of this year and expects to deliver a profit in 2010 as losses on bad debts continue to fall.
- Pressured yields can lead to crowding out - RBIReuters - 11:34 AM
Upward pressure on yields of government securities and the consequent pressure on interest rates make "crowding out" a potential possibility, the Reserve Bank of India (RBI) governor said in a speech.
- Maruti, Reliance, bank shares dropReuters - 11:26 AM
MUMBAI (Reuters) The BSE Sensex seesawed on Tuesday as investors locked in profits after a five-day rally, with weak global markets clouding the outlook.
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LEGAL RESOURCE CENTRE / COURT JUDGMENTS / LEGAL ARCHIVES
JUDICIAL ACTIVISM- JUDGES AS SOCIAL ENGINEERS
SKINNING A CAT
By Justice B.N. Srikrishna
Cite as : (2005) 8 SCC (J) 3
I. The Activism Versus Restraint Debate Today In the sagacious words of Chief Justice Hidayatullah:
"The first principle to observe is that the wisdom of the law must be accepted. A little incursion into law-making interstitially, as Holmes put it, may be permissible. For other cases the attention of Parliament and/or Government can be drawn to the flaw."1
The traditional role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate before him and renders judgment without ever stepping into the arena of debate. Lately, however, it has become fashionable for Judges to jump into the fray and actively participate in the debate by supporting one side or the other and this process masquerades under the felicitous name "judicial activism".2 In the name of judicial activism, modern day Judges in India have abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of "distributive justice". The legitimacy of such actions needs critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by swimming against the tide.
The term "judicial activism" came into currency sometime in the twentieth century to describe the act of judicial legislation i.e. Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham,3 the credit belongs to a non-lawyer Arthur Schlesinger Jr., for popularising the term "judicial activism". His 1947 article in Fortune4 started the modern debate. It brought into focus the dichotomy observed in the judicial process: unelected Judges versus democratically elected legislatures; result-oriented judging versus principled decision-making; observance versus side-stepping of precedents; law versus politics and so on.5 On the basis of their judicial philosophies, Schlesinger characterised some Judges of the US Supreme Court as "judicial activists", some as "champions of self-restraint" and others as comprising the middle group.6 Scholars of law, practitioners as well as the general public have debated, often fractiously, the correctness or otherwise of this kind of judicial activity, some advocating John Austin's deference to restraint and others Justice Benjamin Cardozo's views which tended towards activism.7
In India, although the activism versus restraint debate existed even in the pre-Constitution period, it did not vigorously take-off till the 1970s when the Supreme Court of India itself became very activist. However, the underlying philosophical issue of the relationship between means and ends has been long debated in Indian philosophy. In recent times, it was Mahatma Gandhi who advocated that the means used for achieving a particular result must also be as acceptable as the result itself.8 As we shall see, the saga of judicial decision-making by the highest court in India indicates that judicial activism or the mere pursuit of ends without regard to the means, has become the dominant approach in judicial thinking.
With this background, it becomes necessary for the Judge to ask, like Hamlet, whether it is nobler in the mind to remain impervious to the dominant discourse around, or to trim the sails of his thinking to the winds blowing around. This is a question of great moment, which must haunt any conscientious Judge. Tradition and good sense demand that, irrespective of the political debate around, the Judge maintains a neutral stance in his decision-making, being guided only by accepted legal principles and the dictates of his conscience. The Judge being human, the social ambience in which he operates is likely to affect his judgment, but the extent to which he disallows this to happen determines his mettle. This is the theme that I propose to explore in this lecture.
II. The Fault Lines in the Debate The discourse of judicial restraint and judicial activism leads to discernment of distinct fault lines that may lead to volcanic upheavals if not repaired in good time. These fault lines can be examined under distinct heads as discussed hereinafter.
A. The relationship between "proper" judicial review and "improper" judicial activism
(i) Improper exercise of the power of judicial review
The judicial branch is invested with the power of being the final arbiter of constitutional disputes under many democratic Constitutions. India, which has modelled its Constitution, to some extent, on the US Constitution, falls in this category.9 One of the fundamental features of such a constitutional set-up is the judicial power to invalidate legislation on the ground of infringement of the constitutional parameters such as legislative incompetence, violation of guaranteed fundamental rights, inconsistency with an express provision or basic feature of the Constitution, etc. The power of judicial review is an exception to the principle of separation of powers, which demarcates distinct areas for the different constitutional organs to exercise their powers. The power of judicial review postulates that, in the event of a dispute as to whether the legislature or the executive has overstepped its constitutional bounds, the judiciary shall decide the dispute by application of well-established constitutional doctrines and principles of interpretation. Although the doctrine of separation of powers is not watertight or immutable, judicial interpretation must not reduce it to a nullity. Indeed, in some areas, our Constitution-framers have created evident and unambiguous barriers against judicial intervention in legislative or executive domains,10 but even these have been breached by the courts eager to assert their authority.
Indeed, nothing can be headier than the power to invalidate another constitutional organ's action. Such great power must of necessity bring in its wake great responsibility. The problem with judicial activism is its proclivity for excessive and legally improper use of this very great power to invalidate arguably lawful and proper legislative or executive actions. In fact, history abounds with instances where overactive Judges have jettisoned well-established principles to produce incongruous results, which they honestly thought were necessary, even if democratically elected legislatures or executive thought otherwise. I now propose to examine some of these instances in the US, India and the UK.
During the period of the Great Depression in the 1930s in the US, the US Supreme Court invalidated a series of legislative measures taken by the Government under the so-called "New Deal" program.11 These legislations were intended to directly address the problems arising from the Great Depression by generating employment, obligating minimum wages, safe working conditions and other social welfare measures. However, these legislations were struck down by a majority of the Judges on the premise that they interfered with the doctrine of freedom of contract and were, therefore, contrary to the then current philosophy of laissez faire.12 The activism of the Judges in striking down such obviously valid legislation contributed to the elongation of the Great Depression leading to unavoidable loss of life and misery for millions of people. This judicial attitude led the US President Franklin Roosevelt to threaten to "pack" the Supreme Court with Judges who would show restraint and accept the legislative wisdom of the "New Deal".13 With this threat hanging over their heads and with the death or retirement of the activist Judges, the US Supreme Court eventually restrained its activism, leading to the famous quip about the "switch in time that saved nine"14—the nine Justices!
Judicial activism has still a darker history as seen in the infamous case of Dred Scott v. Sandford15 where the US Supreme Court virtually supported slavery by denying the power of the Federal Government to abolish this practice. The preposterous reasoning put forward by the Judges, ignoring clear provisions of law, was that black people were not citizens and could not, therefore, claim constitutional protections. Moreover, since slaves were chattels of the slave-owners, freeing them from slavery meant forfeiture of the slave-owner's property without compensation—something, which in the thinking of those activist Judges was unfair and unreasonable.16 As we shall see later as well, this sort of result-oriented jurisprudence requires embarrassing legal gymnastics from Judges.
Turning to India, I wish to point to a recent and disturbing trend of using the judiciary to second-guess unambiguously legislative or executive powers. Indeed, our Judges have succumbed to the temptation to interfere even with well-recognised executive powers such as treaty-making or foreign relations. A Delhi High Court judgment in 2002,17 made a treaty signed by India with another sovereign foreign State virtually inoperable, by striking down an administrative order connected with it, inter alia, on the ground that the Court did not like the policy being effectuated by it. One shudders to think whither this trend could lead—whether, for example, the constitutionality of a declaration of war or peace treaty signed by India could also be questioned in a court of law? If the courts were to strike down the peace treaty as being "unconstitutional", would the armed forces be compelled to prosecute the war under a judicial mandamus? Indeed, the mind boggles at such eventualities, however improbable they may appear, given the new-found enthusiasm for judicial activism in areas that are inarguably no pasaran18 for Judges.
(ii) Improper non-exercise of the power of judicial review
"Judicial activism", in my view, has both a positive and a negative aspect. It involves both exceeding the judicial sphere as well as refusing to act within the judicial sphere. Improper non-exercise of judicial review is as dangerous as improper overuse of judicial review. Judicial activism of the former variety is best seen in the infamous ADM, Jabalpur v. Shivakant Shukla,19 better known as Habeas Corpus case,19 where the Supreme Court bent backwards to support what was clearly improper executive action in detaining persons without just cause during the "phoney emergency" of the 1970s. It went to the extent of expressing its "diamond-bright, diamond-hard hope"20 that the powers that ought to have been clipped, would not be misused. As we all know, the executive, blessed with the Supreme Court's judgment, did precisely the opposite, confirming Lord Acton's declaration: "power tends to corrupt, absolute power corrupts absolutely".21 This judgment was not, however, totally unexpected because, in previous years, we had seen the spectre of the supersession of "independent" Judges in favour of more politically and ideologically "committed" ones.22 Often judicial independence is compromised at the altar of political or social ideology in the name of activism. Indeed, an activist Supreme Court, eager to jump into the political arena by abdicating its "counter-majoritarian" role as the guardian of the Constitution, almost brought our cherished ideal of a democratic republic to a standstill.
Similarly disingenuous was the judgment of the House of Lords in Liversidge v. Anderson,23 by which the British Government was given virtually unlimited powers to detain persons, even on entirely dubious grounds, during wartime. But, inevitably, there will be conscientious Judges who will not fall prey to such dubious arguments. Thus, Lord Atkin who was the sole dissenter (like Justice H.R. Khanna in Habeas Corpus case19), went on to deplore the majority Judges who according to him:
"When face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive."24
This abdication of the judicial role led one Judge to later comment that from being lions under the throne, the judgment of the House of Lords had "reduced us to mice squeaking under a chair in the Home Office". Thus, we have seen that judicial activism, especially the explosive admixture of law and politics, whether exceeding or abdicating the judicial function, has a thoroughly disreputable history in many parts of the world including India.
B. "Result driven" decision-making and activist interpretations of Article 14
Activist Judges have often ignored or side-stepped binding legal precedents to arrive at preconceived results, which conform to their conception of justice. However honest and bona fide this exercise, its legal legitimacy is open to question, as I shall presently examine.
E.P. Royappa v. State of T.N.25 is a classic example of this kind of activism in the interpretation of Article 14 of the Constitution, which, as a matter of fact, simply deals with "equality before the law or the equal protection of the laws" and nothing more. The classic formulation of the "Doctrine of reasonable classification" in Anwar Ali Sarkar,26 reformulated in Ram Krishna Dalmia27 and in Special Courts Bill, 1978, In re 28 held the field and became formally recognised as the touchstone for testing legislative and executive violations of Article 14. However, all of a sudden, in E.P. Royappa25 the Supreme Court through the concept of "substantive due process", which had been specifically rejected by the Constituent Assembly,29 equated the concept of "arbitrariness" with "inequality". The Court observed:
"Now, what is the content and reach of this great equalising principle? … We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies…. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…."30
From Royappa25 it was a merry ride through Maneka Gandhi,31 R.D. Shetty,32 Ajay Hasia,33 and a host of other cases where the Supreme Court freely struck down actions of the other coordinate branches of the Government on the basis that it was not "reasonable" or was "arbitrary", a standard of judicial review, neither contemplated by the framers of the Constitution nor by the plain text of Article 14.
Indeed, there are numerous other problems with this "New Doctrine" as some have pejoratively dubbed it.34 A noted critic is Mr H.M. Seervai who in his monumental book Constitutional Law of India has found several faults with the "New Doctrine".35
At the outset, Mr Seervai argues that the New Doctrine hangs in the air, because it is propounded without reference to the terms in which the guaranteed right to "the equal protection of the laws" is conferred. Indeed, by obfuscating its true meaning, the "New Doctrine" gives Judges the untrammelled power to strike down legislative and executive action at will with a bald observation that they are not "reasonable". In fact, I would submit that the standard of "reasonability" is no standard at all because what is "reasonable" or "unreasonable" is in the eye of the beholder without reference to any objective examination. It is not the duty of the court to decide whether a certain statute was "reasonable" or not because that is in the policy realm of India's democratically elected representatives. The court's only duty is to examine whether the legislature had the authority to promulgate the statute and examine whether the statute violated one of the Constitution's textually enumerated fundamental rights.
Secondly, the "New Doctrine" involves the logical fallacy of the undistributed middle or the fallacy of simple conversion.36 The "New Doctrine" purports to treat "arbitrariness" and "inequality" as the same thing. In fact, not all arbitrary actions can be termed unequal simply because some arbitrary actions are both arbitrary and unequal. If, for example, all red-haired students are expelled from a school without reason, that action is both arbitrary and unequal vis-…-vis non-red-haired students. If, however, all students irrespective of hair colour are expelled, it is simply arbitrary but not unequal.37 Hence, while "arbitrariness" and "inequality" are conceptually different, this fact is ignored by the activist mindset.
Thirdly, the "New Doctrine" fails to distinguish between the violation of equality by a law and its violation by executive action. Finally, the "New Doctrine", as Mr Seervai argues, fails to analyse certain concepts like "arbitrary", "law", "executive action" or "discretionary power" and fails to recognise the necessary implication of numerous Supreme Court decisions on classification that were arguably binding precedents and certainly settled law.
C. Judicial legislation and separation of powers
(i) "Substantive due process" and Article 21
The Supreme Court, early in its history, in a series of judgments beginning from A.K. Gopalan,38 V.G. Row,39 and others, held that the discredited US concept of "substantive due process" could have no role in the interpretation of Article 21 because it essentially involved substituting a Judge's notion of "reasonableness" with that of the legislature's.40 However, from Maneka Gandhi31 onwards, the Supreme Court introduced into Article 21 the concept of "substantive due process", or in other words, a standard that requires executive and legislative action to be "reasonable" or "fair"—nebulous terms that are totally at the discretion of an activist Judge to use as he pleases. Indeed, as we saw in the examples of the "New Deal" cases and the Slavery judgment in the US, "substantive due process" is a concept with a blackened history. With this in mind, the Drafting Committee of the Constitution of India was not in favour of using the expression "due process" in the text of Article 21 for they were familiar with its misuse in the US context.41 Accordingly, the Drafting Committee while debating the Draft Constitution of India decided that "due process of law" be substituted by "procedure established by law" similar to Article 30 of the Japanese Constitution of 1946.42 What the framers of the Constitution consciously avoided, judicial activism has brought in by the back door.
There are several problems with the use of "substantive due process" in the interpretation of Article 21. The first is the legitimacy of creating fundamental rights through judicial interpretation. With the power of "substantive due process" behind them, the courts have constantly foraged the forbidden fields by creating newer rights by treating them as flowing from the "right to life" in Article 21 of the Constitution. Article 21 simply reads,
"No person shall be deprived of his life or personal liberty except according to procedure established by law."
Article 21 has verily been treated as the cornucopia from which all such newly created rights flow out. Such judicial legislation is only possible by committing violence to the plain words of the article, which, as evident, is only worded in the negative. Founding new rights on Article 21 is, to say the least, debatable. The entire Constitution, in particular Part III, has been designed to provide a framework for regulation of human society in an orderly manner by providing certain specifically enumerated fundamental rights. The argument in favour of judicial legislation on Article 21 is that "new fundamental rights" are intricately connected with the right to life and without these "new fundamental rights" life would itself become meaningless. This argument, however, has a serious flaw. In fact, if these "new fundamental rights" are premised on their intricate connection with the right to life, then the whole of Part III would be redundant, by the same token, as all rights guaranteed therein by specific enumeration would also be similarly connected. In other words, if the judicial legislation argument were correct, the entire scheme of Part III could have been telescoped into only one provision, namely, Article 21!
(ii) Judicial legislation and international law
Judicial activism has even extended to wholesale importation of principles of international law, which are controversial even internationally. For example, principles like "precautionary principle" and "polluter pays" have been made a part of domestic environmental law by the judicial dicta in Vellore Citizens' Welfare Forum v. Union of India43:
"15. Even otherwise once these principles are accepted as part of the customary international law there would be no difficulty in accepting them as part of the domestic law. It is (sic) almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law."44
In fact, these principles have been the subject of much critical debate and there is no unanimity amongst scholars as to their exact content. Even the concept of "sustainable development", which the Supreme Court heavily relied upon, is an extremely nebulous concept, a fact even conceded to in the judgment itself!45 If that is the case, then I wonder what purpose was served by making it the fulcrum of a judgment which would obviously bind all subordinate courts in India who would then inevitably fumble when considering what was "sustainable development" or how it should influence their judgments. Let me make it clear that I am not against "sustainable development" as a legislative or executive policy. In fact, I am personally for it; but I am against the courts dabbling in concepts that are beyond proper legal definition.
Further, acceptance of international norms and laws is an exclusively executive function since it is closely associated with questions of national sovereignty. Moreover, even if these particular international environmental law principles are trite for incorporation into domestic law, the Supreme Court's judgment provides for automatic incorporation of all customary international legal principles, whatever their content or validity, into domestic law. This is clearly a judicial overkill.
Similarly, in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd.46 the Court felt that where statutes are silent "it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice"47 Drawing upon this rather debatable "duty", the Court read into the Merchant Shipping Act, 1958, something that was not even provided for by the said Act, but provided for in international conventions and according to the Court was a part of customary international maritime law. This was despite a catena of Indian precedents to the contrary. Guidance from other jurisdictions is always welcome, but not the wholesale incorporation of foreign principles without concern for the actual state of domestic law and the consequences of such incorporation.48
D. Activism, "political questions" and the problem of justiciability
"Political questions" which were meant to be out-of-bounds for the courts have often been thrown into the laps of Judges. Instead of throwing them back, the courts have, with great enthusiasm, essayed into adjudication of such questions, often with unsatisfactory results. We need to explore first the reasons for excluding the adjudication of "political questions" by the courts.
The "political questions' exclusion" doctrine is best stated in Baker v. Carr,49 where the US Supreme Court held that certain questions were non-justiciable in a court of law when there was:
"… a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it;"50
The recent Jharkhand Assembly dispute would probably fall under the first category because there is a constitutional provision, Article 212,51 entrusting the adjudication of such issues to a coordinate constitutional branch, namely, the legislature, which ideally should have been left free to deal with the question, the courts keeping aloof.
Ayodhya Reference case,52 where the President requested the Supreme Court to answer politically sensitive questions like: whether there existed a temple at Ayodhya before the construction of the Babri Mosque,53 fall in the second category, where the matter cannot be resolved by reference to "judicially manageable standards". It would have in fact required the Judges to opine on a point of archaeology rather than law, and thereby step on to a political minefield. The Supreme Court was perfectly correct in refusing to answer the reference. In fact, such questions have arisen merely on account of the failure of the executive or the legislature to resolve their own political problems and are attempts to pass the buck to the judiciary.54 The Supreme Court should stoutly refuse the temptation to crown itself with political thorns.
Yet, despite the dangers of entering the political Eddystone Rocks,55 the philosophy of judicial activism has propelled Judges to sail into uncharted waters. Judges now seem to want to engage themselves with boundless enthusiasm in complex socio-economic issues raising myriads of facts, and ideological issues, that cannot be adjudicated by "judicially manageable standards".
In Sarla Mudgal56 the Supreme Court made wide-ranging observations on the need to bring in a uniform civil code and directed the State to explain the steps it had taken towards the enactment of the same.57 The question of a uniform civil code is undoubtedly an issue fraught with complex political fault lines involving minority rights, personal laws, women's rights and so on, and the Supreme Court's observations not unexpectedly erupted into a major political issue. In a later case, the Supreme Court was forced to back down by explaining away its controversial observations in Sarla Mudgal56 as having been "incidentally made".58 In other cases, Judges have sought to incorporate ideologically grounded concepts such as "Hindutva"59 and "Socialism"60 into their judgment with no credit whatsoever.
Judicial activism has also extended to the use of authorities with political overtones for deciding cases—a wholly improper approach. For instance, in Shah Bano,61 while the final order granting maintenance to a divorced Muslim woman is probably correct, the Supreme Court's approach of relying on unfamiliar non-legal sources (such as the Holy Qur'an itself)62 and making sweeping generalisations, instead of narrow legal reasoning,63 made the Court the target of unseemly political controversies.
It appears that the Supreme Court has slowly begun to realise the futility of entering upon policy issues, especially economic policy, and this culminated in the following observations in BALCO Disinvestment case64:
"47. Process of disinvestment is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to 'trial and error' as long as both trial and error are bona fide and within limits of authority."65
This attitude, presently only extending to the economic sphere, should govern all policy-related disputes that are brought to the courts. Indeed, the answers to many socio-economic and political problems lie with Parliament and in a polling booth and not in a courtroom.
E. Enforceability of activist judgments
Arun Shourie's book Courts and Their Judgments66 is a useful chronicle of the difficulties that arise when the courts attempt to do what the executive is constitutionally required to do. The concept of "continuing mandamus" is an admission of the fact that controversial socio-economic issues need constant monitoring over intricate details to be sustained over a considerable period of time. Frequent resort to such orders, which the courts have neither the time nor institutional mechanism to enforce to their ultimate conclusion, eventually erodes the credibility of the judicial institution. Despite the acclaim showered on Bandhua Mukti Morcha67 orders, as pointed out in Courts and Their Judgments, the results came to nought.68
The courts possess neither the power of the sword, nor the purse; they only have to rely upon the goodwill and respect of the two coordinate constitutional branches as that of the general public, for the enforcement of their orders.69 This argument should, however, not be misunderstood as recommending the pursuit of public popularity, or suggesting that Judges be moved by the hysterias of the day, for even Adolf Hitler was popular in his time. It only means that Judges should be conscious of the limitations of the judicial function and the consequent need to remain within the judicial sphere. Indeed, the only power to enforce activist judgments is the power to punish executive or legislative functionaries for contempt of court, which gets stunted with overuse. Moreover, it is not possible for the Court to keep on exercising this contempt power to implement minute details of its orders, the consequences of some of which may not even be fully realised before their implementation.
F. Erosion of the principle of stare decisis
During the 1980s, there was a tendency to deviate from settled principles of law in the name of "innovative principles"; the objective being to render "social justice". On the other hand, Professor Roscoe Pound has stated "Law must be stable, yet it cannot stand still."70 Similarly, Justice Aharon Barak says, "Stability without change is degeneration. Change without stability is anarchy."71 These wise observations imply that changes in law brought about by judicial interpretation must, more often than not, be evolutionary and not be revolutionary or dramatic.72 As dramatically changed interpretations are error-prone and based only on expediency, it would be wiser to take one step at a time than a quantum leap, particularly into unknown regions.73 There may, however, be situations that call for dramatic or sudden changes in law, but exceptions must be few and far between and not easily resorted to, as stare decisis is yet one of the fundamentals of our legal system.
Judicial activists do not easily accept stare decisis as a fundamental principle and in the 1980s the Supreme Court gave the lead to the process of dismantling stare decisis. The judgment in D.S. Nakara74 is a classic example of this approach. In D.S. Nakara74, the Court observed:
"Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied."75
If the observations of the Court are right, then at any given time the Judge may do what he thinks in conformity with his conception of "social justice" by throwing to the winds established principles of law and binding judgments. Moreover, dramatic changes in law create immeasurable difficulties for the High Courts and the subordinate courts for they are left to flounder in a sea of conflicting precedents. They also create chaos and instability for citizens who have moulded their legal relationships based on the extant law but now find that the goal post has been moved in the middle of the game! Further, when the highest court in the land itself shows scant respect for precedents, it may well encourage the High Courts and the subordinate courts to follow suit, leading to judicial indiscipline and anarchy, which bodes ill for any legal system.
III. Undesirable Consequences Ensuing from Judicial Activism
A. Delay, backlog and abuse of public interest litigation
The judicial system, which is currently unable to handle ordinary litigation, as it faces a huge backlog of undecided cases, has to now contend with non-traditional types of litigation in the form of public interest litigation (PILs) that are attempts to use Judges as "social engineers". Abrogating the principle of locus standi in the name of ushering in social justice and the upliftment of the downtrodden sections of society, the courts opened their doors so wide that they find it difficult to control the influx today. The US Chief Justice John Roberts, writing about the US Supreme Court, which only hears a small fraction of the cases the Supreme Court of India hears, had this to say about the problem:
"So long as the Court views itself as being ultimately responsible for governing all aspects of our society, it will, understandably, be overworked."76
Unmindful of the sobering dicta that Judges have neither the power of sword nor of the purse, the courts have taken upon themselves the duty of monitoring several actions, which fall exclusively within the purview of the executive domain. Often one may not find fault with the final results achieved, but one doubts whether the reasoning by which those results were arrived at is legally supportable.
Articles 32, 136 and 142 of the Constitution invest extraordinary powers in the Supreme Court. Correspondingly, Article 226 invests the High Courts with the all-powerful writ jurisdiction. By abandoning the principle of locus standi, Judges have now become roaming knights-errant on white chargers tilting at windmills of injustice to defend the honour of the Dame of justice.77 Extraordinary powers must be reserved for extraordinary occasions. Its frequent use detracts from its efficacy and produces an incongruous effect. As is said in a well-known subhashita:
""vfrifjp;knoKk lUrrxeuknuknjks HkofrA
ey;s fHkYyiqjU/kzh pUnur:dk"""BfeU/kua dq:rsAA"
("Overfamiliarity breeds contempt and overvisitation results in inhospitality, just as the Bhil woman in the Malaya mountain burns sandalwood for fuel.")
There are a substantial number of bogus litigations, which sneak in as public interest litigation and can simply be collusive, profiteering, or speculative. In my view, the Supreme Court should not be using Justice Felix Frankfurter's words, an "… umpire to debates concerning harmless, empty shadows".78 In fact, the 'P' in 'PIL' often represents "profit", "publicity" or "persecution" as more and more manipulative litigants use the court's shoulder to fire at rivals.79 Frequent use of public interest litigation for dubious purposes, may have a chilling effect on entrepreneurs, who would become wary of venturing into business with the threat of liberally granted injunction order obtained by their business rivals.
B. Expediency and judicial error
The legislative and the executive wings of the body politic, which possess the core competence and specialisation in dealing with complex socio-economic problems, are getting progressively marginalised. The judicial organ of the State, the least equipped to deal with socio-politico-economic issues, has occupied the centre stage, and has got bogged down in more and more of such cases. Sheer expediency or the urge for immediate justice in an abstract sense is hardly a justification for taking on problems with myriad fine details that the court is ill-equipped to handle.
Fine-tuning of administrative details is beyond the capacity of the courts, but unfortunately it is something that they have engaged in with enthusiasm. Judicial forays into policy issues through trial and error, without necessary technical inputs or competence, have resulted in unsatisfactory orders that have been passed beyond "judicially manageable standards". The reliance on affidavits tendered or even placing reliance on a report of a court-appointed Commissioner can hardly supplant a judgment made by a competent executive officer with regard to the actual ground realities.
C. The credibility of the institution
As we have seen, the tendency of the Supreme Court to pronounce on issues, which require purely political decisions, has led to situations where the Court has had to subsequently back down. The most embarrassing instance has been in the case of the directive for a uniform civil code legislation, as we have already seen, where the Court had to later downplay its initial activist observations.
In my view, while activist judgments may bring immediate and transitory succour, if, in the long run, the judgments do not strike at the root of the problem, what follows is loss of credibility and respect for the institution among the other constitutional branches and the general public.80 As Justice Felix Frankfurter said in Baker v. Carr:81
"There is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope."82
Indeed, Justice Frankfurter could well have been talking about the bonded labourers and the Supreme Court of India after Bandhua Mukti Morcha67 orders.
D. Diversion of institutional resources
Instead of playing the role that has been constitutionally assigned to it and utilising its resources towards such role, the assumption of a non-traditional, activist role by the Supreme Court has led to the diversion of its attention and resources. As in cases of "continuing mandamus", where it has to exercise continuous monitoring and supervision over executive authorities, judicial activism strains the institutional resources of the Court. It also diverts the time, talent and energy of Judges into channels that they are neither required to navigate, nor equipped to, for lack of competence, skill or resources.
E. Personality driven rather than institutionalised adjudication
Judicial activism creates labels for Judges such as "pro-labour", "anti-labour", "pro-tenant", "anti-tenant", "progressive", "conservative" and so on.83 This is so because the scope and the extent of judicial activism ultimately depends on the personal predilections of the individual Judge and his/her own conception of what "social justice" ought to be. In effect, the result becomes personality-oriented rather than oriented towards "justice according to law", which is the duty of a Judge. Personality-driven adjudication provides avenues for "forum shopping" by lawyers and litigants. Instead of "justice according to law", the courts would administer justice according to the propensities of the Judge, harking back to the days of justice at the Chancellor's foot in England.
IV. Arguments against Judicial Restraint
A. "Judicial restraint is a 'rightist' ideology"
One of the criticisms of judicial restraint is that it is "pro-government", "pro-rich" and "anti-social justice" and hence a "rightist" ideology. It is a misconception to think that judicial activism arises from "left" or "right" oriented philosophies, two terms with hazy meanings at best. Judicial activism is nothing but jumping the fence. The fact that it is done from the "right" or "left" is hardly of significance because to an activist Judge what he considers to be the correct philosophy matters, "leftist" or "rightist" being sheer coincidence. In fact, as we have seen earlier, the "New Deal" cases, the Habeas Corpus judgment, the "Hindutva" judgments and the pro-slavery judgment are instances of activist Judges with a so-called "rightist" ideology.
More often than not, the individual philosophy of the Judge becomes tailored to the dominant discourse. A Judge is enjoined by the Constitution to often perform a counter-majoritarian role to prevent unjustified executive or legislative incursions into the textually enumerated fundamental rights of citizens, or to prevent abuse of representative democracy. By entering into the political thicket, as evidenced in the Habeas Corpus case, judicial activism can wholly erode judicial independence and run contrary to the Judge's constitutional duty to decide cases "without fear or favour".
B. "Judicial restraint is an activist philosophy in itself"
There can be no difficulty in accepting judicial restraint or legal centrism as a judicial philosophy in itself. But this philosophy is very different from judicial activism that I have spoken against. Despite the high-sounding words, "judicial restraint" only means that the Judge shall stick by the law and decide legal controversies strictly in accordance with established principles of law without foraging the constitutionally forbidden territories reserved for another branch of the government. In my view, that precisely is the role a Judge is called upon to play by reason of the oath that he undertakes. A Judge is not free to render justice as he thinks, but is required to render "justice according to law". As Times of India in an editorial has aptly commented:
"Judges are meant to act as humble interpreters of law, not pose as emperors who adjudicate on a whim. We need faceless, impassive Judges, compassionate but disciplined legislators and an executive that acknowledges the supremacy of the legislature and independence of the judiciary. Sadly, technical Judges are not easy to come by in India. Some arrange marriages between rapists and their victims. Others turn into committed municipal authorities. Courts are meant to be more serious than Bollywood makes them out to be."84
Conceded that in a few cases "justice according to law" may produce less-than-perfect results, but more often than not, "justice according to law" produces an outcome that is in line with crystallised public opinion. Indeed, if "justice according to law" was so abhorrent, then we would have seen a revolution in India and a scrapping of the Constitution. The fact that this has not happened is positive proof that "justice according to law" and "justice without fear or favour" is the correct approach.
C. "Judicial restraint would have meant no Kesavananda Bharati85″
There may occur occasions in judicial history, when Judges must make dramatic, sudden and even revolutionary changes to law, by marginalising the "justice according to law" principle. Exceptional situations may call for drastic steps, but that can happen only exceptionally. In fact, in fifty-odd years of our Constitution, I can only think of one such situation. This was when the executive and legislature in collusion sought to use the Constitution to destroy the Constitution itself. Therefore, in my view, the "Basic Structure Doctrine" evolved by the Supreme Court in Kesavananda Bharati85 is, if at all an exercise of judicial legislation, a justifiable one, because without it there would have been no Constitution and no independent judiciary worth the name. After all, as the maxim goes, necessitas non habet legem.86 That is a different kettle of fish from the activism of the 1980s and 1990s where judicial legislation was resorted to at the drop of a hat to address every socio-economic problem of the day, however unfortunate, but nevertheless lacking the imperative urgency facing Kesavananda Bharati85 court. The Queensberry Rules87 are to be strictly observed except when your own life is at stake!
V. Conclusion
Fortunately, the fervour for judicial activism, which engulfed the courts during the third and fourth decades seems to be ebbing with the progressive realisation that it is preferable to tread the "highways" of justice instead of resorting to the "bye-lanes" of activism in the hope of expeditiously reaching the goal of justice. As I have pointed out, deviation from the well-trodden path frequently leads to wholly unjust outcomes. The wholesome admonition of the Garuda Purana in this respect is worth bearing in mind:
";ks /kzqokf.k ifjR;T;k/kzqoa ifj"ksorsA
/kzqokf.k rL; u';UR;/kzqoa u"Veso pAA"
("He who forsakes that which is stable in favour of something unstable, suffers doubly; he loses that which is stable, and, of course, loses that which is unstable.")88
I began with Chief Justice Hidayatullah and would like to conclude by referring to his quip on judicial activism and restraint:
"There are many ways of skinning a cat. You can do it quietly or you can do it ostentatiously."89
In my view, it is preferable to do the judicial skinning quietly and unostentatiously and in accordance with positive law.
–
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* Adapted from a speech delivered at the Sesqui Centenary Celebrations of the Government Law College, Mumbai on 1-10-2005. Return to Text
** Judge, Supreme Court of India. Ed.: This is a continuation of the debate initiated through two articles published earlier viz.: Justice M. Hidayatullah, Highways and Bye-Lanes of Justice, (1984) 2 SCC J-1 and Justice V.R. Krishna Iyer, Democracy of Judicial Remedies—A Rejoinder to Hidayatullah, (1984) 4 SCC J-43 Return to Text
- Justice M. Hidayatullah, Highways and Bye-Lanes of Justice, (1984) 2 SCC J-1 at p. 5. Return to Text
- For an "anthropology" of "judicial activism" and its contours, see Upendra Baxi, The Avatars of Indian Judicial Activism, Explorations in the Geographies of InJustice, in Fifty Years of the Supreme Court of India: Its Grasp and Reach (S.K. Verma & Kusum, Eds., 2000) at pp. 156-207. Return to Text
- See Brian Bix, Positively Positivism, 85 VA LR 889 at p. 907 n. 108 (1999) (book review) cited from Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism", 92 CALIF LR 1441 (2004) who discusses the divergent philosophies of Blackstone (who favoured judicial legislation) and Bentham (who despised it as "miserable sophistry"). Return to Text
- See Arthur M. Schlesinger Jr., The Supreme Court: 1947, FORTUNE, Jan. 1947, at pp. 202, 208 cited from Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism", 92 CALIF LR 1441 (2004). Return to Text
- See also Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism", 92 CALIF LR 1441 at pp. 1444-50 (2004), who discusses the origins and first use of this term. Return to Text
- Id. Return to Text
- Austin's theories and their interpretation over the years has been discussed in W.L. Morrison, Some Myths About Positivism, 68 YALE LJ 212 at p. 214 (1958); Justice Cardozo's own views are best exemplified in his book, Nature of the Judicial Process (1921). Return to Text
- Writing in Young India, 17-7-1924, he says: "They say, 'means are after all means'. I would say, 'means are after all everything'. As the means so the end. … There is no wall of separation between the means and the end. Indeed, the Creator has given us control (and that too, very limited) over means, none over the end. Realisation of the goal is in exact proportion to that of the means. This is a proposition that admits of no exception." Return to Text
- Indeed, unlike the US Constitution, where the power of judicial review has been judicially evolved by the famous judgment in Marbury v. Madison, 5 US 137 (1803), in India, the power of judicial review is textually provided in the Constitution by a combined reading of Articles 13, 32 and 142. Article 13(2) provides: "13. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." Articles 32 and 226 give any person the right to move the Supreme Court or the High Court, respectively, for the enforcement of fundamental rights guaranteed in Part III of the Constitution. Finally, Article 142 provides that the Supreme Court "may pass such decree or make such order as is necessary for doing complete justice in any cause or matter" and such decree or order is "enforceable throughout the territory of India". These constitutional provisions leave little doubt that the power of judicial review of legislative and executive action is textually vested with the superior courts in India. Return to Text
- For e.g. Articles 122 and 212, specifically prohibit the courts from inquiring into proceedings of Parliament and the State Legislature but even this express prohibition has been disregarded in many cases. Return to Text
- For an excellent analysis of the law, politics and judicial activism surrounding the "New Deal", see Archibald Cox, The Courts and the Constitution (1987, 1989 Indian Reprint) at pp. 145-55. Return to Text
- The most famous case being that of Lochner v. State of New York, 198 US 45 (1905), which has led to the modern derogatory epithet of "Lochnerism" to describe any "activist judgment". Return to Text
- See Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990) at pp. 53-56 (hereinafter Bork). Return to Text
- A quip that is sometimes attributed to Abe Fortas a future Judge of the US Supreme Court. See NY Times, 15-6-1937, at p. A-19 cited from op. cit. fn 13. However, there is some debate about whether it was President Roosevelt's threat that made the Court change its stance or whether it was simply the death/retirement of the Judges that caused the change, but this is not particularly relevant here. Return to Text
- 60 US 393 (1857) Return to Text
- Bork, supra fn 13, at pp. 30-31. Return to Text
- Shiva Kant Jha v. Union of India (sub nom Azadi Bachao Andolan), (2002) 256 ITR 563 (Del) : 2002 Tax LR 735 (Del), overruled by the Supreme Court in Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1. These cases were concerned with the Indo-Mauritius Double Taxation Avoidance Treaty. Return to Text
- No pasaran, which is Spanish for "they shall not pass", was the slogan of the anti-fascist movement in Europe in the 1930s. Return to Text
- (1976) 2 SCC 521 Return to Text
- Ibid., at p. 679 (para 421), per Chandrachud, J. Return to Text
- Lord Acton, in a letter to Bishop Mandell Creighton, 1887. Return to Text
- See Glanville Austin, Working a Democratic Constitution: The Indian Experience (1999) at pp. 278-92 who in Chapter 12 titled "A Grievous Blow: The Supersession of Judges" describes in vivid detail the circumstances and political rationale for the supersession of certain senior Supreme Court Judges and the elevation of A.N. Ray, J. as the Chief Justice of India. Indeed, later Ray, J. was the Chief Justice of India when Habeas Corpus case was heard and decided. Return to Text
- 1942 AC 206 : (1941) 3 All ER 338 (HL) Return to Text
- Ibid., AC at p. 244 : All ER at p. 361 B, per Lord Atkin. He went on further to add, id.: "In this country, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority, we are now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I." (All ER p. 361 C-E) Return to Text
- (1974) 4 SCC 3 : 1974 SCC (L&S) 165 Return to Text
- State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 Return to Text
- Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538 at pp. 545-46 (para 11) Return to Text
- (1979) 1 SCC 380 Return to Text
- The reason for its rejection was aptly stated by Sir B.N. Rau, the Constitutional Advisor to the Constituent Assembly: "The Court, manned by an irremovable judiciary not so sensitive to public needs in the social or economic sphere as the representatives of a periodically elected legislature, will, in effect, have a veto on legislation exercisable at any time and at the instance of any litigant." Cited from T.R. Andhyarujina, The Evolution of Due Process of Law by the Supreme Court, in Supreme but not Infallible: Essays in honour of the Supreme Court of India (B.N. Kirpal et al., Eds., 2000) at p. 195. Return to Text
- (1974) 4 SCC 3 at SCC p. 38, para 85, per Bhagwati, J.
(emphasis supplied). Return to Text
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248 Return to Text
- Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 Return to Text
- Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258 Return to Text
- See e.g., H.M. Seervai: Constitutional Law of India (Vol. 1, 4th Edn., 1991) at p. 436 (hereinafter Seervai). See also T.R. Andhyarujina, op. cit. fn 29 at pp. 205-11 (hereinafter Andhyarujina). Return to Text
- Seervai (Vol. 1), ibid., at p. 438. Return to Text
- An example would be trite in this context. If, we say a door half-open is also half-closed we may be correct. But this cannot lead us to say that because a door half-open is also half-closed, a door fully closed is also fully open! Return to Text
- See Andhyarujina, supra fn 34, at p. 207 for this example. Return to Text
- A.K. Gopalan v. State of Madras, 1950 SCR 88 Return to Text
- State of Madras v. V.G. Row, AIR 1952 SC 196 : 1952 SCR 597 Return to Text
- Patanjali Sastri, C.J. in a remarkably insightful observation in V.G. Row, ibid., at pp. 199-200, para 15 (AIR), while discussing the standard to be adopted while examining the reasonability of measures impinging on fundamental rights, states: (SCR p. 607) "In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable."
- See Andhyarujina, supra fn 34, at pp. 195-98 Return to Text
- Id. Return to Text
- (1996) 5 SCC 647 Return to Text
- Ibid., at SCC p. 660, para 15, per Kuldip Singh, J.
- Ibid., at p. 658 (para 10). Return to Text
- 1993 Supp (2) SCC 433 Return to Text
- Ibid., at SCC p. 465, para 64, per Thommen, J.
- I draw support from the position taken by O'Connor, J. (dissenting) in the context of the majority judgment of the US Supreme Court in Roper v. Simmons, 03-633 (decided on 1-3-2005) (Rehnquist, C.J., O'Connor, Scalia, Thomas, JJ. dissenting). The majority judgment held that the execution of juvenile criminals was unconstitutional because world opinion had found the practice abhorrent. In contrast, O'Connor, J. (for herself) observes that while it was correct to refer to international precedent: "… I do not believe that a genuine national consensus against the juvenile death penalty has yet developed. … I can assign no such confirmatory role to the international consensus described by the Court … the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact." (emphasis in the original judgment) This, in my view, draws the correct balance between use of international precedent and the needs of domestic law. Return to Text
- 369 US 186 (1962) Return to Text
- Ibid., at US p. 217, per Brennan, J. Return to Text
- Article 212(1) unequivocally states: "212. The validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure." Further Article 212(2) states: "212. (2) No officer or member of the legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." Return to Text
- M. Ismail Faruqui (Dr.) v. Union of India, (1994) 6 SCC 360 (Special Reference 1 of 1993 was heard alongside connected matters). Return to Text
- Ibid., at pp. 384-85. Return to Text
- See the interview of noted jurist Mr Fali Nariman, commenting on the Jharkhand Assembly orders, quotes an unnamed Chief Justice who says, "Why do politicians approach courts. To solve their problems", in Supreme Court should Rationalise its Action, FRONTLINE, 12-3-2005 to 25-3-2005. Return to Text
- A rocky islet of southwest England in the English Channel south of Plymouth. It has been the site of a strategic lighthouse since the 1690s to guide ships away from treacherous rocks. Return to Text
- Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569 Return to Text
- Ibid., at p. 651 (paras 37 and 38), per Kuldip Singh, J. Return to Text
- Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573 at p. 582 (para 14), per Venkataswami, J. Return to Text
- Three Supreme Court judgments are often referred to as the "Hindutva judgments", namely, Ramesh Yeshwant Prabhoo (Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130; Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169; Ramchandra G. Kapse v. Haribansh Ramakbal Singh, (1996) 1 SCC 206. The observations therein on "Hindutva" must be compared and contrasted with the definition of "Secularism" in the seminal judgment of S.R. Bommai v. Union of India, (1994) 3 SCC 1. In fact, as is pointed out in Vikram Banerjee and Sumeet Malik, Changing Perceptions of Secularism, (1998) 7 SCC J-3 at pp. 6-8 not only has the Supreme Court taken conflicting opinions on the meaning of "Secularism" and "Hindutva" but even individual Judges have vacillated in their own views from case to case. Indeed, such problems can only be avoided if Judges avoid reference to ideological conceptions that defy definition by proper and accepted legal construction. Return to Text
- References and discussions of political ideologies in judgments often lead to inconsistent and gratuitous philosophical debate by Judges. For e.g. in D.S. Nakara v. Union of India, (1983) 1 SCC 305 at SCC pp. 325-26, para 33, Desai, J. observes: "33. Recall at this stage the preamble, the floodlight illuminating the path to be pursued by the State to set up a Sovereign Socialist Secular Democratic Republic… What does a Socialist Republic imply? Socialism is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramifications. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. … This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism." Compare this with the recent dictum of Sinha, J. (dissenting) in State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26 at SCC p. 148, para 307 who takes the diametrically opposite view: "307. Socialism might have been a catchword from our history. It may be present in the preamble of our Constitution. However, due to the liberalisation policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away." Return to Text
- Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : 1985 SCC (Cri) 245 Return to Text
- As commented upon in Badar Durrez Ahmed, Mohd. Ahmed Khan v. Shah Bano Begum: A Critique, (1985) 4 SCC J-9 at p.14 (hereinafter Ahmed): "The honourable Judges of the Supreme Court are men of great learning and legal acumen however they do not possess a complete knowledge of Arabic, of the Qur'an, the hadis and amal of the companions of the Prophet. The Supreme Court in its role of a qazi can certainly apply the Shariat. It cannot however change it or interpret the Qur'an on its own. … What the Supreme Court has done is to have expressed its 'ra'y' or private opinion or interpretation of the Aiyats. This is highly arbitrary and extremely dangerous. If this is permitted then the entire Shariat, nay, even the meaning of the Qur'an could be twisted. It is this act of the Supreme Court that has caused such a stir amongst the Muslims of India."
- As is pointed out in Ahmed, ibid., at p. 11, to arrive at the legal result the Court did, there was no need to interpret the Shariat or the Holy Qur'an. This issue could simply have been decided by relying upon the provisions of the Code of Criminal Procedure, 1973 that the Court had anyway found to be secular in nature and therefore, directly applicable to the case. Reference to the Holy Qur'an was, in other words, wholly gratuitous and unnecessary for the disposal of the case. Return to Text
- BALCO Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 333 Return to Text
- Ibid., at SCC p. 362, para 47, per Kirpal, J. Return to Text
- Arun Shourie, Courts and Their Judgments: Premises, Prerequisites and Consequences (2001) (hereinafter Shourie). Return to Text
- Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389 Return to Text
- Shourie, supra fn 66, at pp. 13-61. Return to Text
- See the dictum of Frankfurter, J. (dissenting) in Baker v. Carr, 369 US 186 at p. 267 (1962) who says: "The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction." Return to Text
- See Roscoe Pound: Interpretations of Legal History (1923) at p. 1. Return to Text
- Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV LR 16 at p. 29 (2002) (hereinafter Barak). Return to Text
- See Roger J. Traynor: The Limits of Judicial Creativity, 29 HASTINGS LJ 1025 at pp. 1031-32 (1978) who says aptly: "The greatest Judges of the common law have proceeded in this way, moving not by fits and starts, but at the pace of the tortoise that steadily advances though it carries the past on its back." Cited from op. cit. fn 71. Return to Text
- As Barak, J. correctly says: "Likewise, we must ensure consistency. In similar cases we must act similarly, unless there is a proper reason for distinguishing the cases. This rule does not bar departure from existing precedent, but it does ensure that departure from precedent is proper; that it reflects reasons and not fiat; and that it is done for proper reasons of legal policy, so that the contribution the change makes to future law outweighs any harm caused by changing the old law, including the instability and resultant uncertainty inherent in change. Indeed, deviation from Supreme Court precedent is a serious matter and must be undertaken responsibly. Precedent is not immutable, but bucking established case-law is not a goal in itself. Departures from precedent should be the exception, not the rule." See Barak, op. cit. fn 71, at p. 31 (emphasis supplied; internal footnotes omitted). Return to Text
- D.S. Nakara v. Union of India, (1983) 1 SCC 305 Return to Text
- Ibid., at SCC p. 330, para 41, per Desai, J. Return to Text
- Judge John Roberts as quoted in Nancy Gibbs, 5 Things to Know About John Roberts, TIME 5-9-2005, at p. 26, prior to his confirmation as Chief Justice of the US Supreme Court. Judge John Roberts said in reply to the US Senate's questionnaire, Judges, "do not have a commission to solve society's problems". Return to Text
- I draw this analogy, if only in contrast, with the views expressed by Krishna Iyer, J. in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at SCC p. 342, para 94 where he observes: "Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knights-errant of 'executive excesses'—if we may use a current clich‚—can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law: 'Be you ever so high, the law is above you.' " Words that on first blush I cannot but agree with. In reality, however, the real import of this observation is quite different. As we have seen, equating "inequality" with "arbitrariness" only substitutes executive or legislative fiat with judicial fiat. Indeed, it is quite debatable as to what is more undesirable—the ipse dixit of a democratically elected legislature or executive or the ipse dixit of an unelected activist Judge. In fact, the observation really means: "Be you ever so high, a Judge is above you." Return to Text
- Poe v. Ullman, 367 US 497 (1961) cited from Henry J. Abraham: The Judicial Process (3rd Edn., 1975) at p. 358. Return to Text
- See e.g. the expression of caution by the Supreme Court on the abuse of PILs in cases such as Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295 at pp. 334-35; Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 at pp. 501-02; Malik Bros. v. Narendra Dadhich, (1999) 6 SCC 552; Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590; Sanjeev Bhatnagar v. Union of India, (2005) 5 SCC 330. Return to Text
- As Bharucha, J. has correctly commented: "This Court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It is counter-productive to have people say, 'the Supreme Court has not been able to do anything' or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and it is, therefore, of cardinal importance that orders that are incapable of obedience and enforcements are not made." See Justice S.P. Bharucha, Inaugural Lecture of Supreme Court Bar Association's Golden Jubilee Lecture Series, in Supreme Court on Public Interest Litigation (Jagga Kapur, Ed.), cited from Ashok H. Desai and S. Murlidhar, Public Interest Litigation, in Supreme but not Infallible: Essays in Honour of the Supreme Court of India (B.N. Kirpal et al., Eds., 2000) at p. 182. Return to Text
- 369 US 186 (1962) Return to Text
- Ibid., US at p. 270, per Frankfurter, J. (dissenting). Return to Text
- Justice Hidayatullah also makes a similar observation, see Hidayatullah, supra fn 1, at p. 3. Return to Text
- Editorial, The Interpreters: Judiciary should not stray from the rule book, TIMES OF INDIA, 17-9-2005 at p. 24. Return to Text
- Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 Return to Text
- Latin for: "Necessity has no law". Return to Text
- The Marquis of Queensberry Rules are a code of popularly accepted rules in the sport of boxing. They were named so because the 9th Marquis of Queensberry publicly endorsed the code. The Rules were meant to persuade boxers that they "must not fight simply to win; no holds barred (was) not the way" and that they "must win by the rules". Return to Text
- Garuda Purana, 110. Return to Text
- Hidayatullah, op. cit. fn 1, at p. 7. Return to Text
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