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Debatable topics, Now happening, Uncategorized

The Tyranny of Forced discipline

Posted on 18 Dec 201618 Dec 2016 by The Law Blog

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

The Indian Express I opened today looked up at me with a plethora of information and a particular article on the seventh page caught my eye, quite rightly so. “No beard, uniformity must in IAF”, it read.

The Supreme Court on Thursday said that IAF personnel had no right to sport a beard on religious grounds, lest the ‘uniformity and discipline’ of the defence forces be hampered. Citing the power of the Parliament to determine the extent of restriction on fundamental rights among armed forces personnel as provided for in Article 33 of the Constitution, the apex court dismissed the appeal by Airmen Mohammed Zubair and Ansari Aaftab Ahmed. The appeal was put forward challenging the High Court’s dismissal of their plea for quashing the IAF order directing them to shave off their beards. The bench headed by Chief Justice T S Thakur and comprising of Justices D Y Chandrachud and L Nageswara Rao held that the petitioners had failed to show that their case fell within the ambit of Regulation 425(b) which says “personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard.”

According to the court, although India treats every religion equally, such an action is quintessential to a cohesive, disciplined and coordinated functioning of the armed forces.

And while some might find this unrelated, it brought into my mind’s questioning the SC Anthem Ruling that plunged into controversy not so long ago wherein the honorable Supreme Court once more demonstrated that cinema is a soft target for all concerns nationalistic. How is it, if our nation respects all religions, that there is a requirement to strip down one off his unique identity in order to instil a sense of ‘uniformity’ within him? Why does our nation require symmetry in physical appearance or an outward act of patriotism so badly?

Days after it forced the patriotic pill down our collective throats by making the playing of national anthem and standing to it mandatory before movie screenings in all cinema halls, 12 people were detained during the International Film Festival of Kerala for not rising and 8 people, who chose not to rise in opposition, got beaten up in a Chennai cinema hall by a mob of 20.

What needs to be understood is that most of these people who voluntarily choose not to obey such a rule are not doing it out their hatred or lack of love for their nation but as a necessary act of defiance against the compulsory thrusting of nationalism against their will.

Since when does our judiciary require positive acts on our behalf in order to be satisfied of the feeling of patriotism that rests in our heart? How is nationalism being forced down our throats as a compulsion the only manner in which the SC can finally be satisfied with our patriotism? How is the judiciary the only possible protector of our nationalistic feelings now? The questions never end.

Of all places, especially in a country wild about movies, cinema halls are visited by the people to take a break from their lived reality and blow off steam; for the Supreme Court to single out the largest mass entertainment venue for such mandatory “inculcation” reeks of a design to deepen the state’s coercive powers over us. The only ones it has empowered through this order are chest-thumping jingoists and aggressive elements. Literally bashing people who do not consent to be force-fed nationalism, physically and legally, can be pictured in totalitarian, big-brother regimes, but not in the country we call home. Yet it is being allowed to happen.

The Freedom to Speech and Expression being guaranteed by our constitution surely imbibes within itself the right to denial and positively express our intention against something that is being forced on us without any reason. And yet, the forced discipline.

The December book bucket

Now happening, Others

Possible legal issues surrounding the ‘Demonetization’ move

Posted on 15 Dec 201615 Dec 2016 by The Law Blog

This article has been written by Miracline Paul Susi. Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

8^th of November 2016 marked a groundbreaking change in India’s economy. Prime Minister Narendra Modi announced that 500- and 1,000- rupee notes were no longer legal tender. People were given 50 days to deposit them in bank accounts or to exchange them for new notes at banks. The Prime Minister asserted that removal of black money was sole aim behind this revolutionary process. While the economic consequences of demonetization have been extensively debated, the legal validity needs a detailed deliberation.

The first legal issue revolves around the Reserve Bank of India Act, 1934. The RBI Act gives the RBI the sole authority to operate the country’s currency and credit system. It gives the RBI the exclusive right to issue banknotes[1] and gives power to the central government and the RBI to decide on the non-issuance of banknotes[2]. The November 8 circular issued by the Finance Ministry demonetizing 500- and 1000- rupee notes was based on Section 26 sub-section (2) of the Reserve Bank of India Act, 1934. The section says that “on recommendation of the central board of the RBI, the central government may, by notification in the Gazette of India, declare that with effect from a date specified in the notification, any series of bank notes of any denomination shall cease to be legal tender.” The power of demonetization arrived at by this section constitutes an “essential law making function” which cannot be delegated to be fixed by the central government on its own determination. Only if the government is able to demonstrate that this was done based on a recommendation made by the RBI’s central board of directors it is legally valid, otherwise it would amount to gross “delegation of power”.

Secondly, the demonetization is not very new; it has taken place twice before, in 1946 and 1978, with the same goal of addressing unaccounted money. Unlike 2016 demonetization, both in 1946, and in 1978, the demonetization was authorized by an ordinance. In so far as Article 300A of the Indian Constitution is concerned, the state may deprive an individual of property only pursuant to the authority of law, that is, by an Ordinance or an Act of Parliament. The government’s failure to issue an Ordinance to extinguish its debt to the people thereby depriving them of their property impermissibly violates Article 300A.

“Public debts” are property and “the extinguishment of such a debt owing from the state amounts to compulsory acquisition of that debt”[3]. In Jayantilal Ratanchand v. RBI[4], in the context of the 1978 demonetization, the Supreme Court held that insofar as the demonetization wiped out the RBI’s debt to the bearer of notes declared illegal, it constituted compulsory acquisition of property. It is settled law that, state acquisition of private property is allowed provided the requirements of ‘public purpose’ and ‘compensation’ are satisfied. In arguendo, the demonetization had been sanctioned by an Ordinance, the validity is assured only after the investigation of the court, if it met a public purpose and whether those who were deprived of their property were reasonably compensated.

Thirdly the demonetization violates the fundamental right “to practice any profession or to carry on any occupation, trade or business[5]”, because of the hastiness and the resultant consequences. It cannot be claimed even by the government that only those with black money, fake currency notes or intent to aid terrorism are bound to suffer because of the notification. The government, of course, would rely on article 19(6), which says that nothing in Article 19(1)(g) shall affect the operation of any existing law in so far as it prevents the state from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the rights conferred by the sub-clause. But the exception of article 19(6) is not available to the central government as the notification is beyond “police powers”. The grounds cited cannot justify the adoption of extreme measures like invalidating 86% of printed currency in circulation overnight[6].

Fourthly, the demonetization also discriminates between holders and non-holders of bank accounts thus violating Art.14 of the constitution. Prior to the issuance of this overnight notification, the government failed to ensure that 100% of the population had bank accounts. Though the government may argue that such a classification is necessary to achieve their objectives, such the classification may be set about as arbitrary and violative of the right to equality under Article 14.

Lastly, it can be argued that issuing Rs 2000 currency notes clearly shows that it has no rational nexus with the object sought to be achieved by the demonetization.

[1] Section 22 of the Reserve Bank of India Act, 1934.

[2] Section 24(2)) of the Reserve Bank of India Act, 1934.

[3] Madan Mohan Pathak vs Union Of India & Ors 1978 AIR 803, 1978 SCR (3) 334.

[4] JT 1996 (7), 681 1996 SCALE (5)741.

[5] Article 19(1)(g) of Constitution of India.

[6] Five Reasons Why the Recent Demonetization May Be Legally Unsound, 20/11/2016 available at http://thewire.in/81325/demonetisation-legally-unsound/.

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Critical Analysis, Now happening

The Diminishing Lakshman Rekha: the ongoing executive and judiciary tussle

Posted on 1 Dec 20161 Dec 2016 by The Law Blog

This article has been written by Abhipsa Upasana Dash. Abhipsa is a third-year student at Symbiosis Law School, Noida.

Populism based on opposition between an elected legislature and the judiciary does not bode well for a democracy based on rule of law.The American social scientist Edward Shils, had shown, a long time ago, that populism is based on this opposition between the legitimacy of the elected politician and the legality enshrined in a Constitution whose custodians are the judges. Democracy without the rule of law quickly degenerates in mobocracy and eventually, even elections cannot be organized fairly.

Once in power, the Modi government introduced a bill in Parliament, which was intended to put an end to the collegium system (in a nutshell, this involved judges appointing judges) and to create a National Judicial Appointments Commission (NJAC). The commission would have comprised the Chief Justice of India (CJI), two other senior judges of the Supreme Court, the law minister and two other “eminent” persons appointed by a committee consisting of the Prime Minister, the CJI and the leader of the opposition. The NJAC would have been responsible for the appointment and transfer of judges to the higher judiciary. The Commission was established in August 2014 through the 99th amendment to the Constitution of India. The Bill was passed and approved by more than 16 states. But in October 2015 the Supreme Court decided to strike down this reform and to revive the collegium system in the name of the independence of the judiciary.

A collegium is a group of five of the senior-most judges of the Supreme Court – including the Chief Justice of India – who decide the appointments and transfers of judges to the apex court and the high courts. The Constitution of India, however, does not sanction this system.

Article 124 of the Constitution stipulates that judicial appointments to the Supreme Court must be made by the President in consultation with the CJI and other senior judges of the SC and the high courts. Similarly, Article 217 says that high court judges are to be appointed by the President, the CJI and the governor of the concerned state. This balance between the executive and the judiciary began to see-saw after 1981, when the first of the legendary “Three Judges Cases” on judicial appointment systems took place. In that first case, the Supreme Court had ruled that the CJI’s recommendations of judges could be refused if the president had “cogent reasons”. This tipped the scales in favor of the executive, giving it a greater say in the appointments of judges.

The second of the three cases concluded in 1993, when a nine-judge SC bench that included Justice JS Verma overturned the 1981 judgement. The bench ruled that the Chief Justice of India must have a “primal” role in the appointments of judges and that the executive could not have an equal say, or else it could lead to “indiscipline” in the judiciary.

This verdict led to dissent and confusion within the judiciary, but it also gave birth to the collegium system, which was further reinforced by the third of the “Three Judges Cases” in 1998. This judgement came through another nine-judge bench, which emphasized the judiciary’s upper hand over the executive in judicial appointments.

What is the National Judicial Appointments Commission system?A growing dissatisfaction with the collegium system, which completely pushed aside the President and the government in the process of appointing top-ranking judges, eventually led to the proposal of a National Judicial Appointments Commission as a more balanced alternative in line with the Constitution. Collegiums, all through their existence, had been accused of favoritism and corruption of failing to fill in the many vacancies of judges in the Supreme Court and high courts – which was adding to the huge backlog of unheard cases in Indian courts.

The NJAC, on the other hand, was proposed as a body that would comprise the CJI (as the chairperson), two senior SC judges, the union minister of law and justice and two other eminent persons nominated by the Chief Justice, the prime minister and the leader of the opposition (or the leader of the single largest opposition party). Collectively, they would represent both the executive and the judiciary while selecting judges for top appointments.

The National Judicial Appointments Commission Act was swiftly passed by both houses of Parliament in August 2014, and was given the President’s nod in December 2014. By April 2015, the NJAC Act was notified along with the Ninety-Ninth Constitutional (Amendment) Act, which amended Article 124 A of the Constitution to accommodate the Commission. While the NJAC Act was being passed, however, opposition to the new system began piling up in the Supreme Court in the form of protest petitions, which are now being heard by the five-judge bench under Justice Khehar.

Regardless of the collegium and the NJAC, a gaping 47% vacancies in the major courts across the country raises serious debate over the motive of government behind raising such issues. Hence the tussle of the judiciary over supporting the collegium or the NJAC is going to be more dramatic in coming months.

The December book bucket