JUDICIAL PERFIDIES-18

 

This series was triggered by two questionable court orders-one, by the Gauhati High Court,  dated 15/03/2018 in WP(C) 4224/2016, and two, the apex court order, 08/07/2019, upholding the same in SLP (Civil) Diary Number 18133/2019. What better way to dovetail the break in the main thread due to current events and get back to the main thread, than by updating on the status of implementation of those orders.

 

Let us quickly recapitulate what has been narrated in detail in Judicial Perfidies 1. The issue before the Gauhati High Court was raised by one of its former Acting chief Justices, whose date of birth was 30/07/1936, retired on 29-07-1998 on the eve of his attaining the age of 62 years (1936+62= 1998), demanded enhanced pension, due to pensioners on attaining the age of 80, with effect from 30/07/2015 when by the logic of his retirement age itself, he would have attained 80 years only on 30/07/2016 (1936+80= 2016). His claim was that he had entered 80 years of age on 30/07/2015. The High Court accepted his argument and ordered the government to pay him enhanced pension. The apex court dismissed the Special Leave Petition filed by the Central Government simply stating that they did not want to interfere with the orders of the High Court. It became law.

 

What the courts did not reckon with are the following facts:

The scheme of enhanced pension was introduced in 2006 by the 6^th Central Pay Commission.

It applied to all central government pensioners, as much as to the judges of our high courts and apex court.

Thousands of central government pensioners and hundreds of high court/supreme court judges would have attained 80 years of age and got the enhanced pension between 01 Jan 2006 and 2015 and none of them had raised such a ludicrous claim for obvious reasons. So this verdict becomes applicable to all of them as well as to all those entering 80 years of age on their attaining the age of 79 years itself.

Well, the same logic of entering and attaining an age, should extend to the retirement age also and hence employees who have to retire on attaining 60/62/65 years of age will now have to retire on entering those ages one year in advance.

 

And, as was expected, a central government employees union wrote, on 26 August 2021, to the Central Government to extend this to all pensioners and circulated that letter on social media. That was when this instance of a special dispensation came into public domain.

 

An application, dated 02 Sep 2021, under the Right to Information Act was delivered to the Ministry of Law and Justice on 06 September 2021, seeking the following information:

 1. Have the orders been complied with?

 2. If enhanced pension has been granted to the petitioner with effect from 30/07/2015, along with interest due, provide copies of the relevant file notes and the order granting the same.

3. The date on which payment as per para 2.2 has been made and the arrears paid. The arrears and interest paid should be shown separately.

4. Has the relief been granted to similarly placed pensioners?

5. If the relief has been granted to similarly placed pensioners, provide copies of the relevant file notes and the order.

6. If the order has not been complied with, provide copies of the Contempt of Court petition filed, if any, by the decree holder, the counter filed, the case number and its present status.

 

The reply, dated 30 September 2021 but posted only on 05 October 2021, by the Public Information Officer (PIO) provided the following information:

-that the sanction was issued by the Accountant General Assam and hence the application was forwarded to that public authority

-Department of Justice does not sanction additional quantum of pension to retired judges.

-No contempt petition has been filed

Now, the PIO was required to send copies of the application or its relevant extracts to concerned public authorities for providing information not held with the public authority to whom the application was addressed. This was to be done within 5 working days of receipt of the application and the same had to be intimated to the applicant. This was not done. It had been done only on 5 October along with the copy of the reply provided to me.

Also, as per Section 21 of The High Court Judges (Salaries and Conditions of Service) Act, 1954, it is the President of India who is the competent authority to grant extraordinary pension to a judge.

Further, as per information disclosed under Sec 4(1)(b) of the RTI Act, under Allocation of Business Rules, 1961, it is the function of the Department of Justice to deal with the appointment, resignation and removal, etc. of Chief Justice and Judges of High Courts in States; their salaries, rights in respect of leave of absence (including leave allowances), pensions and travelling allowances.

Though these matters were raised in the first appeal under the RTI Act, submitted on 13 Oct 2021, there was no response from the appellate authority and the second appeal, filed on 31 December 2021 is pending with the Central Information Commission.

Subsequently, a letter, dated 10 January 2022, was received from the PIO of Principal Accountant General (A&E) Assam, informing the following:

-The Enhanced Pension Authority has been issued to PAO, CPAO, New Delhi

-The information sought at para 2 of the application is exempt as per Sec 8(1)(j) of the RTI Act

-Date of payment is not known to the office of the Principal Accountant General (A&E) Assam

-No relief has been granted to similarly placed pensioners

-A contempt of court petition had been filed and bears the number 635/2020.

The first appeal highlighting the deficiencies/defects in the above reply was filed on 08 March 2022 and there has been no response till date. Some of these are:

- Sec 8(1)(j) of the RTI Act exempts only those personal information which has no relationship to any public activity or interest. In this case both the court order and its compliance have public interest to the extent that it affects all pensioners of the central government and its consequent effect on the public exchequer.

-In the matter of information not known/held with the public authority, the PIO should have forwarded the application or relevant part of the application, to the one holding such information.

-Since the Contempt petition is of 2020, the date of compliance of the order is material and it has not been provided even though specifically sought.

It is also surprising that the PIO of Department of Justice had informed that no contempt of court case has been filed, though the Ministry of Law and Justice was one of the respondents along with Principal Accountant General (A&E) Assam in the original case decided by Assam High Court.

It should also be noted that most of the information has not been provided by the two PIOs.

 

Interestingly, I could get a copy of Bill No 144/2021 to amend the High Court Judges (Salaries and Conditions of Service) Act, 1954 and the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 where by an explanation was inserted as “For the removal of doubts, it is hereby clarified that any entitlement for additional quantum of pension or family pension shall be, and shall be deemed always to have been, from the first day of the month in which the pensioner or family pensioner completes the age specified in the first column of the scale.".

 

Now the ages specified in the first column of the scale are as under:

From eighty years to less than eighty five years

From eight five years to less than ninety years

From ninety years to less than ninety five years, and

From ninety five years to less than hundred years.

Here, the question is whether this clarification was actually required or not. Because, given that you celebrate your first birthday when you are one year old, you will celebrate your 80^th birthday when you are 80 years old or 80 years of age. So you add 80 to the year of your birth in your date of birth to get the date when you are 80 years of age. The illustration has already been given at the beginning of this part of the critique. And this happens to be the date on which you enter 80 years of age, because there after you continue to be 80 plus one day, two days, three days…till 80 plus 365 days when you will be 81 years of age. So you complete 80 years of age only on attaining 81 years of age or on your 81^st birthday.

Anyhow, this looks like an effort to seek a simplistic solution to deny the benefit to similarly placed pensioners. But whether it will suffice to deny the benefit granted to an ex Chief Justice of a High Court by the same High Court, and upheld by the apex court, remains to be seen. For that we will have to await the disposal of the pending contempt of court case, which legally need not be concluded in any specific time frame.

Meanwhile here is an extract from a humorous piece written by a former member, Avay Shukla, of the Indian Administrative Service and has been in circulation on social media.

In the early eighties I was posted as a joint secretary in the finance department at Shimla. My duties involved approving claims for medical reimbursement. Those days contact lenses were deemed to be a cosmetic procedure and  their expenses were not reimbursable. One day I received a claim from a High Court judge who had contact lenses fixed. I promptly took the file to the finance secretary. The secretary looked at me with a cunning grin and said: “Approve it!”. I was aghast, just as Moses must have been when he saw the Israelites worshipping the golden calf.

“But the rules, sir ...” I blurted. And then the finance secretary explained: “Avay, you must understand the rules which govern rules. The most important rule in government is the rule of precedents. A precedent, once set, is sacrosanct, notwithstanding all other rules. Once you allow something for one person you cannot deny it to others. So let this judge have his bloody contact lenses—after all, how can a lowly finance secretary refuse a mighty High Court judge? And hereinafter all of us can also have contact lenses!” And that’s how contact lenses are now reimbursable. We now have more IAS officers adorned with the lenses than starlets in Bollywood.

And another one from a blog at http://indiamydreamland.blogspot.com/2010/12/indian-judiciary-dream-unfulfilled.html:

A budding lawyer working with his lawyer dad, exclaimed to his father. “Dad, Dad you must congratulate me on the first major success of my career, because today I have finally settled your 28 years old case, pending since, even before my birth”. The shocked father rebuked his happy son saying, you are a fool. This is the case which helped me, to bring you up from your childhood, and made you a lawyer. This case would have now helped me, to get you suitably married too. In my view you still need to learn a lot, to truly acquire the wisdom, intelligence and the system of functioning of a lawyer.

To conclude this part, the notings in File No A1-3141/2012 of the Kerala High Court on the subject of Post-retiral benefits to Honorable Judges-Government Orders-reg is attached. No comments are being added, except that this is the only information I have got from a court under the Right to Information Act. The ones that had been stonewalled shall be dealt with separately.

 

P M Ravindran/raviforjustice@gmail.com/280422

 

JUDICIAL PERFIDIES-17

 

I had concluded the last part, Judicial Perfidies 16, with a tweet of a view of judge D Y Chandrachud and a reply tweet by another tweeter. It was like Chandrachud saying ‘The army might be important in its own right but the Constitutional court is equally supreme’ and the reply was ‘Army is supreme for the simple reason Supreme Court can sit on a case for decades and life goes on as usual but army can’t postpone its response to aggression by the enemy. If it does there will be no country and no Supreme Court.’ Can the truism in that logic be countered in any manner?

 

There is another equally non debatable logic in another quote. This is what T.R.Ramaswami, had written: 'Let not someone say that the IAS and IPS exams are tougher and hence the quality of the officers better. An exam at the age of 24 has to be tougher than one at the age of 16. The taxpaying citizen is not interested in your essay/note writing capabilities or whether you know Cleopatra's grandfather. As a citizen I always see the army being called to hold the pants of the civil services and the police and never the other way round. That's enough proof as to who is really more capable.'(The complete is available at http://exairwarriorsgroup.blogspot.com/2010/04/read-this.html)

 

Before I go on to analyze the One Rank, One Pension conundrum, let us first understand what it means. Rank is primarily a military term. So One Rank, One Pension basically implies the same pension for those retiring in a particular rank, irrespective of the date of retirement.

 

If it is that simple, then where is the problem? The problem is because of the limited career progression available to the men in uniform compared to their counterparts in the civil administration and the early retirement forced on soldiers due to their tasking which requires a young profile, especially at the lower levels of the hierarchy. While most of the troops have been retiring in the rank in which they join after serving for 15 to 25 years (this appears to have been mitigated to some extent through a Minimum Assured Career Progression offered lately and referred to in the recent OROP verdict of the apex court), the incongruity is glaring at the officer’s level in comparison with their civilian counterparts.

 

 Going back to Ramaswami, this is what he has observed:

 

The 1981 IPS batch have become 3-star generals, the 1987 are 2-star and the 1994 1-star.

In the army the corresponding years are 1972, 1975, 1979. ie a differential of 10-15 years. While the differential is more with the IAS, the variance with the IPS is all the more glaring because both are uniformed services and the grades are “visible” on the shoulders.

He continues…

In the IAS normally everyone reaches Director and in the IPS it is DIG. In the army, given the aforementioned rank and grade rigidities and pyramidical structure, the mode rank cannot exceed Colonel. Thus a Colonel’s gross career earnings (not salary scales alone) must be at par with that of a Director. But remember that a Colonel retires at 54, but every babu from peon to Secretary at 60 regardless of performance. Further, it takes 18-20 years to become a Colonel whereas in that time an IAS officer reaches the next higher grade of Joint Secretary, which is considered equal to a Major General. These aspects and others – like postings in non-family stations – must be addressed while fixing the overall pay scales of Colonel and below. Thereafter a Brigadier will be made equal to a Joint Secretary, a Major-General to an Additional Secretary and a Lt. General to a Secretary. The Army Commanders deserve a new rank -Colonel General – and should be above a Secretary but below Cabinet Secretary. The equalization takes place at the level of Cabinet Secretary and Army Chief.

If this is financially a problem I have another solution. Without increasing the armed forces’ scales, reduce the scales of the IAS and IPS till they too have 20% shortage.

 

Apart from this is a bizarre system, called Non Functional Financial Upgradation (NFFU), invented by the babus, in their pursuit of self aggrandizement as a whole class. As per this system any member of their service will get the same pay and perks as the first one who gets promoted in their batch, irrespective of whatever job the rest are doing. To illustrate, if a member of the IAS of 1990 becomes Cabinet Secretary in 2020, all his batch mates would get the pay and perks of the Cabinet Secretary.  So now every batch mate of a cabinet secretary will get not only the pay and perks of the Cabinet Secretary, they will also get the same pension of the cabinet secretary. And it is not a scale but a consolidated amount; so no minimum, maximum or average. Since a Cabinet Secretary will have tenure of about two years it implies that every member of almost alternate batches of the IAS will be getting the pension of a Cabinet Secretary.

 

This same benefit had been extended to the members of IPS with a two year delay. That is, when all the members of the IAS batch of 2020 gets a promotion, then all the members of the IPS batch of 2018 will get the same pay and perks. Even then all the other civil services were denied this initially but got it with a delay of 10 years. As of now, only the armed forces officers are denied this.

 

A report, dated 08 March 2021, at https://www.dailypioneer.com/2021/columnists/exorcising-the-orop-conundrum.html informs us that even while this Government opposes OROP for its military veterans, it lost little time in ensuring that all Members of Parliament receive pensions calculated in much the same manner that military veterans have been demanding. In 2018, it amended Clause 8A of ‘The Salary Allowances and Pension of Members Act, 1954’, to provide for an increase in the authorised pension every five years on the basis of the Cost Inflation Index, which clearly links pensions for all former members to what is received by the incumbent.

 

In fact this principle had been implemented in a different form for the MPs earlier too. Paragraph 5 of The Salary, Allowances and Pension of Members of Parliament (Amendment) Bill, 2010 is reproduced below.

Besides Pension the ex MPs are entitled to Rail/Steamer travel and medical facilities as mentioned in enclosed pamphlet on Facilities to Members/ex-Members of Parliament. As per latest debit claim  raised by the M/o Railways, the bill amounting to Rs 2,645/- Crores was settled in respect of  ex-MP during the January 2013 March 2013 quarter.

(Annexure to Lok Sabha Secretariat letter number 1(556)/IC/13 dated 31/05/2013

‘(1) With effect from the 18th day of May, 2009, there shall be paid a pension of twenty thousand rupees per mensem to every person who has served for any period as a Member of the Provisional Parliament or either House of Parliament:

Provided that where a person has served as a Member of the Provisional Parliament or either House of Parliament for a period exceeding five years, there shall be paid to him an additional pension of fifteen hundred rupees per mensem for every year served in excess of five years.

 

Incidentally, this pension is peanuts compared to another expenditure, on rail travel, incurred on our former law makers. Here is a screen shot of a letter dated 31/05/2013 of the Lok Sabha Secretariat (obtained under the Right to Information Act in 2013):

And, the number of pensioner MPs/widows of pensioner MPs? 3857. That works out to an average of Rs 68, 57, 661 per quarter per MP or almost Rs 23 lakhs per month per ex MP.

 

The Pioneer report also informs us that in 2014, when the Supreme Court was passing directions to the Government to correct the anomalies in the pensions of High Court Justices, then Chief Justice of India P Sathasivam directed that “one rank one pension must be the norm in respect of a constitutional office”, a benefit which Justices of the Supreme Court already enjoyed.

 

The facts and figures regarding the pension of our judges in the high courts and Supreme Court are not available. In fact, even the pay details required to be published proactively by the public authorities, under the Right to Information Act, has not been published by the Supreme Court, though such details are available for the other employees of the court from the Secretary General down to the Chamber Attendant.(Last accessed 09 April 2022)

 

Yet another report, dated 29 August 2015, that gives a comprehensive picture of the OROP conundrum is available at https://www.linkedin.com/pulse/soldiers-pride-nations-security-darshan-pandher/. The author, Veteran Lt Gen PG Kamath has narrated the history and the gist is extracted below as:

 

It was post 1971 and the nation was euphoric. Our countrymen were lauding the Indian Armed Forces for a spectacular victory that had changed the geography of the sub-continent. The nation was savouring the victory and more than 97,368 prisoners were in our Prisoners of War Camps. It was the second largest surrender in the Military History.

 

Unknown to the services a band of bureaucrats were conspiring as to how to cut the Armed Forces to size.

 

Firstly, they abolished a separate Pay Commission for the Armed Forces and formulated an equivalence between the Armed Forces and Civilians. It was here that the Pay Commission struck its vilest blow when they considered that ‘a trained infantry soldier with three years of service is below a skilled labour. He is the one who bears the brunt of more than 90% of casualty in all wars and yet he was considered the lowest strata to base their comparison. Rest of the soldiers were equated based on this preposterous formulae?

 

Next step was to reduce the percentage of pension for the Armed Forces. The OROP that was effective till 1972, was annulled after the third pay commission. A soldier then served only for 15 years and went on pension at the ages ranging from 33 years to 36 years of age. In view of this, his pension was 70% of his basic pay. The civilian counterparts were getting only 30% of their basic pay as pension. The wretched Third Pay Commission did not consider the additional 25 years of service his civilian counterpart served and raised their pension to 50% and reduced a soldiers pension from 70% to 50% in order to achieve the so-called parity. Further the government put mandatory 33 years of service for full pension. They further, as a largesse, made a seemingly generous gesture to the Armed Forces by pegging the mandatory service for full pension (50%) to 25 years. Thus the soldier in effect got only 30% of pay after 15 years of service, as extrapolated from full pension of 50% of pay with 25 years of service. Thus the Government ingeniously cut a soldiers pension from 70% to 30% of pay at the same time enhancing the civilian pension from 30% to 50%. Look at the perfidy; how can possibly a Government run down her own Armed Forces? It is indeed a remarkable feat from a nation that was a slave nation for over two centuries, yet disregards her Armed Forces who ensure her hard earned freedom?

 

Our Defence Ministry were hand in glove with the proposals. There was not a whimper of protest to set right the injustice. The soldiers had to pay heavily for having won the war for the country. Their travails were not over; more was yet to come!

 

One would wonder why the soldiers did not protest against the brash injustice perpetrated on them? It would be difficult to believe, as those were the times the officers in particular were told that politics and pay were not to be discussed. They were naïve and had full faith in the government that in the long run no injustice would be done to them. The disarming naivety of our officers appear incomprehensible now; but it was true then. Hence the entire master stroke of cutting the armed forces to size by impoverishing them was done with so much of dexterity, it took us couple of decades to realise its negative impact.

 

They did not even spare the first Field Marshal of independent India, the architect of one of the most glorious victories in military history, while liberating Bangladesh in 1971, and the who re- ignited the national pride.  A PTI report from April 2007 (that is a good 34 years after he was elevated to the rank of Field Marshal) states that an official statement of the defence ministry said that FM Manekshaw and Marshal of IAF Arjan Singh would be entitled to “full salary and allowances equivalent to that for serving chiefs of the two services.” Really? So what about the Field Marshal and Marshal of the Air Force being above the service chiefs? Oh, the same subterfuge in creating an office of the Chief of Defence Staff and keeping it in the same rank as that of service chiefs? No, this time it has gone one step further, the CDS is also the Secretary of the Department of Military Affairs and in that position equal only to the Defence Secretary who is lower in status than the service chiefs.

 

What Ramaswami appears to have missed are two facts: one, while the army has always responded positively and effectively in holding the pants of the civil services and police, the latter has never delivered on the services due to the former, as is due to them as with every citizen of this nation, and the raison d’etre of their very employment.

 

The next thing is that he has distinguished between civil services and the police. Apparently, by civil services he means only the Indian Administrative Service. This may be unwittingly or maybe being very much aware of the differences that really exist, though legally both are civil services and are recruited through a common civil services exam conducted by the Union Public Service Commission. The bizarre case of NFFU has been described in some detail earlier.

 

I remember having tweeted to the Prime Minister once that given the principle of equal pay for equal work, the Sepoy in the Indian Army should get more pay and perks than the Cabinet Secretary. This was on realization that, after the Right to Information Act came into force, the best of the babus of the IAS can pass of for satisfactory clerks, the rest are mere file pushers who cannot even push the files in the right direction. Exceptions, granted.

 

Now, coming to the current judgment, dated 16 March 2022, in Writ Petition (Civil) No. 419 of 2016, the court appears to have reinvented its decisions in two earlier cases- D S Nakra and S P S Vains.

 

In D S Nakra it had been held that payment of pension constitutes a compensation for the service rendered in the past and as a measure of social welfare for providing socio-economic justice to those who have rendered service to the State and that there was no justification for arbitrarily selecting the criteria for eligibility for the grant of benefits under the scheme based on the date of retirement.

 

In SPS Vain, the Court had held that pre and post 1996 retired Major Generals must be treated at par to remove an anomaly in the pension of pre-1996 retired Major generals. The principle in that case was about the removal of anomaly between the ranks of Major General and Brigadier which had arisen due to the implementation of the fifth and the sixth Central Pay Commission.

 

In the current case, the court has held that the decision in Nakra cannot be enlarged to cover within it all the claims made by the pension retirees since the purpose of computation of the pension is different. Now, what is this purpose, only the judges would know.

 

Also, the court held that it was not feasible to undertake an automatic revision. Though the government had accepted the principle of uniformity, it was not unreasonable to define periodicity for ensuring uniformity.

 

The court also appears to have swallowed hook, line and sinker the argument of the government in working out OROP based on the Assured Career Progression Scheme (later Modified Assured Career Progression Scheme) for Junior Commissioned Officers/Other Ranks. This scheme assures upgradation of pay to the next higher rank at 8/16/24 years of service.

 

One absurd illustration, as seen in Para 35 of the Order, is reproduced below:

In other words, a Sepoy with three years of service and a Sepoy who has acquired eight years of service thereby qualifying for MACP are not equated even after OROP purposes since they did not both have the same length of service from the past rank of Naib Subedar.

 

The absurdity in the first part, comparing a Sepoy with 3 years of service to a Sepoy with 8 years of service should be obvious. Given that the minimum pensionable service of a Sepoy was 15 years, what would have been reasonable was comparison of a Sepoy who had retired with 15 years of service before introduction of MACP and after introduction of MACP. Further, given that MACP is simply an incentive to serve longer, at least upto 24 years, with no criteria of any additional qualifications or competence for availing the benefit, it only stands to reason that those who had retired with the prescribed service should ipso facto, be eligible for the benefit, irrespective of the dates of their retirement.

 

Also, one is left wondering how a Naib Subedar could be the past rank of a Sepoy. From the order itself it is clear that it is this is the rank to which a Havildar gets upgraded to after 24 years of service under MACP.

 

And what does the following comparison and the figures, in the same paragraph of the order, mean?

According to the Union Government, if non MACP personnel are grouped with MACP personnel for the payment of OROP, the total financial outflow from 2014 would be in the range of Rs 42,776.38 crores. If non MACP persons were required to be matched with MACP, the financial implication for the period from 1 July 2014 to 31 December 2015 would stand at Rs 13,731.03 crores.

 

But there is more clarity in the financial implications as brought out in this statement, reproduced from the same paragraph:

As noted earlier, it has been stated that when OROP is implemented, the annual financial implication was in the amount of Rs 7,123.38 crores. If non MACP personnel had to be matched with MACP personnel, this figure would stand increased to Rs 9,411.71 crores.

 

These figures highlight two facts:

One, there is a difference in the pension of those who retired prior to introduction of MACP and those who retired with MACP benefits.

Two, the cost of extending the benefit of MACP to all is meager (viewed in the context of government expenses) at Rs 2288.33 crores.  (Just recollect the rail travel expenses of Rs 2645 crores for 3857 ex-MPs for a quarter!) However, this amount would, no doubt, have immensely benefitted a very large number of veteran soldiers.

Now, here are some reports that had appeared in the media, since the case was filed in 2016:

One Rank, One Pension: Is the bureaucracy back to the same old game of delay dilute and deny? (https://timesofindia.indiatimes.com/blogs/In-search-of-propriety/one-rank-one-pension-is-the-bureaucracy-back-to-the-same-old-game-of-delay-dilute-and-deny/)

One Rank One Pension: A Typical Example of Bureaucratic Apathy. OROP is not an anecdote of strive and struggle, but reverence in the form of justice which the protectors of our nation rightfully deserve.( https://blog.ipleaders.in/one-rank-one-pension-a-typical-example-of-bureaucratic-apathy/) Just for the record this blogger is Yash Jain, a third-year student of Institute of Law, Nirma University in 2019 when this blog was published.

The top court had said that whatever it will decide, it will be on the conceptual ground and not on figures. It said, “When you revise after five years, the arrears of five years are not taken into account. The hardships of ex-servicemen can be obviated to a certain extent if the period is reduced from five years to a lesser period”. (https://economictimes.indiatimes.com/news/defence/sc-upholds-govts-decision-on-one-rank-one-pension/articleshow/90255785.cms?from=mdr)

The apex court said that the policy decision of the Centre of OROP is not arbitrary and it is not for the court to go into the policy matters of the government. And, on February 16, the top court had said that Centre's hyperbole on the OROP policy presented a much "rosier picture" than what is actually given to the pensioners of the Armed forces. (https://www.newindianexpress.com/nation/2022/mar/16/one-rank-one-pension-is-policy-decision-suffers-from-no-constitutional-infirmity-supreme-court-2430729.html)

 

I am reminded of a wise quip: we do not get justice in our courts, what we get from our courts is called justice. The question is how long will the citizens be able to accept this situation?

P M Ravindran/raviforjustice@gmail.com/250422

JUDICIAL PERFIDIES-16

 

The thread of current events that interrupted the original thread of these critiques has to continue since such have been the questionable court verdicts these past weeks.

 

In Judicial Perfidies 15 while discussing Indira Gandi’s election cases I had illustrated how the apex court had held that The basis of the findings on which the High Court held against the successful candidate is removed by Act 40 of 1975 retrospectively. Were the law as it is under the amendments introduced by that Act, the High Court could not have held that the election is vitiated by the two particular corrupt practices. We all know that the culpability of an offender is to be decided by the law as it stands at the time of the alleged commission of the offence and not by a subsequent amendment made with retrospective effect. So can there be anything more reprehensible that the logic used by the judges to exonerate the appellant who had been convicted for election malpractices, that should have been condemned as one of the most abhorable crimes in a democracy? And it is the same court that invented unheard of meanings to the very commonly used term consult to usurp the constitutional power of the Executive to appoint judges of the high courts and the apex court. It also dumped a law, duly enacted by the competent constitutional authorities, to constitute a National Judicial Appointments Commission.

 

In the same critique I had also described the hijab controversy and the litigation that followed it as frivolous. Since it had been analyzed in detail there, the only purpose of mentioning it here is to state that the same case was again presented before the same court leading to the Chief Justice exploding in the court and promising to defrock the advocate. The video had gone viral in social media.

 

But related to this is another case where an ex-head of a Wakf Board had approached the apex court to remove 26 verses from the Koran claiming them to be unconstitutional, non-effective and non- functional on the ground that these promote extremism and terrorism and pose a serious threat to the sovereignty, unity and integrity of the country (https://indianexpress.com/article/explained/quran-unconstitutional-pil-wasim-rizvi-case-judicial-review-7249760/). The claim that it should be religious scholars and not judicial courts that can do it does look logical. But then, the question arises did the apex court follow this principle in its Sabarimala verdict? It is a definite NO. It quoted constitutional provisions of gender equality, and wrongly at that, as will be discussed subsequently, to allow women of all ages to enter the temple. And shockingly, it did not merely dismiss the petition calling it frivolous but also penalized the petitioner with a cost of Rs 50,000/-.

 

 For the uninformed, here is the gist of the arguments of the petitioner, presented to the court through his advocate R K Raizada (https://www.siasat.com/plea-against-holy-quran-sc-dismisses-wasim-rizvis-plea-to-waive-cost-of-rs-50k-as-withdrawn-2160145/):

 

“My submission is that these preachings advocate violence against non-believers. Children are kept at captivity at madrasas at a tender age. Students are not to be indoctrinated. These preachings cannot be in the market place of ideas. I have written to the Central Government for action, but nothing has happened… Central Govt and Madrasa Boards may be called upon to ensure what steps are taken to avoid literal teaching of verses advocating violence”, Raizada submitted.

 

In this global village that the world has become, thanks to technology, we are aware how the beheading of one teacher in France by a religious fundamentalist led to sweeping reforms in the field of education and public conduct of all citizens irrespective of their religious affiliations.

 

Are our courts blind or indifferent to media reports? There is no need to believe that either. In a recent petition filed by Kerala State Road Transport Corporation against excess charges levied by petroleum product sellers, the apex court, no less, had made some comments on an unrelated subject- the pension provided to the personal staff of ministers in Kerala. Incidentally, the subject of this case had already been decided by the same court in 2017 against the petitioners and it had been reported that all state road transport corporations had started buying their fuel from public retail outlets. But not Kerala SRTC.  Reports suggest that this petition was a ploy by KSRTC to justify its losses on this account. To my mind, this was a right case that should have been dismissed with costs.

 

Another case that was dismissed, through questionable logic, by the apex court was regarding the K Rail project of the Kerala Government. The appeal was against a division bench order of the Kerala High Court that had stayed a single judge order staying the survey of land and social impact assessment.

 

As per a report, dated 28 Mrch 2022, at https://www.thehindu.com/news/national/kerala/kerala-silver-line-project-supreme-court-refuses-to-stay-land-survey/article65267454.ece, a bench of judges M R Shah  B V Nagarathna did not interfere with the decision of the Division Bench of the Kerala High Court which had set aside the January 20 and February 7 interim orders of a single–judge Bench. The Kerala Division Bench had held that the State government was vested with adequate powers to conduct the survey and mark the properties with boundary stones emblazoned with the “K-Rail” logo for conducting the social impact assessment study under the provisions of the Kerala Survey and Boundaries Act, 1961. The top court noted that the survey was being conducted only as a preparatory exercise for holding a social impact assessment study which would not have any prejudice to the petitioners.

 

Now here are some facts culled from different reports that have appeared in the media in the recent past, including a leaked Executive Summary of the Detailed Project Report (DPR):

 

The appeal filed by residents and property owners in the Thrissur, Kozhikode and Kottayam districts,

The Silver Line project requires around 1,383 hectares, of which 1,198 hectares are owned by private parties.

It is a proposed 529.45-kilometre rail line  to be built at a cost of Rs 63,941 crores and expected to be completed by 2025,

It is conceived as a stand-alone rail corridor on a standard gauge and can run at a maximum speed of 200 kilometers per hour (kmph), with an average speed of 132 kmph.

The DPR also estimates a “realistic scenario” where there would be a daily ridership of 79,934 in 2025, which would increase to 1,58,946 by 2052. Incidentally, one of the major railway projects in India, between two of the most populated commercial capitals Mumbai and Ahmedabad, the ridership estimate for 2023 is just 36,000.

It even recommends increasing the fare of the existing train services.

The project’s construction is done through large embankments (raised platforms for railway lines) that are as high as eight meters above the Highest Flood Line. This will eventually act as a massive wall that will disrupt the geography, landscape, and most threateningly, the hydrology of the state.

Contradicting their official report, Ajith Kumar, the Managing Director of K-Rail, told the Mathrubhumi Weekly that construction materials for the K-Rail project would be sourced from other states.

Conducting a boundary survey and fixing stone markers on private properties, that too under a State law like the 1961 Act, were alien to the concept of undertaking a social impact assessment study under the Central statute, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act)

Citizens are unable to transact on their property and as such the procedure adopted by the respondents is violative of the requirements of Section 11 (4) of the LARR Act 2013,” their petition argued.

The project, which is a collaborative one with the Centre, had not yet received the approval or sanction from the Union Government.

‘Metro Man, E Sreedharan, estimates that this project would require an expenditure of at least Rs 1,10,000 crore. He has gone on record to term the project “ill-conceived, badly planned and very badly handled.”

The NITI Aayog had also raised concerns that the project cost would go up to Rs 1,26,000 crore.

The Railway Board and the Union had categorically asserted before the High Court that it was “advisable that the proceedings of land acquisition for this project shall be stopped at this stage, as even feasibility of the present alignment has not been agreed by the Ministry of Railways”.

Ultimately, refusing the right to critical information that affects the public is always an indicator of misdeeds.

           

That much for published media reports. Now, we all know what it takes to get a bank loan for constructing a house or for education. So let us take a look at the performance of the Government of Kerala and its competence to complete this project.

 

Firstly, the per capita debt of a Keralite is reported to be near Rs 1 lakh, one of the highest in the country. Also the State is reportedly surviving on borrowings of more than Rs 100 Cr per day.

Sabari Rail, to link Angamaly, already on the rail map, to Erumeli, a pilgrim center enroute to Sabarimala, was sanctioned by the Railway Board in 1998. To cut the politics and other details out, today the 111 km project in on a limb after the first 7 kms, between Angamaly and Kalady, had been completed years back. The land acquisition has not been completed and the initial project cost pegged at Rs 550 Cr has been revised to Rs 2815.62 Cr in 2021. 900 landowners are unable to sell their land or use it for any financial dealings.

On August 4, 2007 about 300 landless families occupied over 145 hectares of land, reportedly illegally held by a plantation, Harrison Malayalam Limited, demanding five acres for farming and ₹50,000 in cash towards initial farming expenses to each of the families. They pitched tents on the occupied land, tapped latex from the rubber trees at the estate and later turned to agriculture to eke out a living. While the High Court ordered their eviction without bloodshed, the government failed when the male protestors climbed on trees with noose around their neck and threatened to commit mass suicide. The women followed with kerosene cans in their hands. On 27 September 2006, the Chief Minister of Kerala, V.S. Achuthanandan, had given a written assurance that the government would allot land to a sizeable number of landless families by 31 December 2006. However, this promise was not honored. 1,495 eligible landless people at Chengara were allotted 831.03 acres of land across 10 districts. But, only 78 families got habitable land and others returned to Chengara alleging that the land was too rocky to start farming. Even now (the report at is dated 23 September 2021 and is available at https://www.newindianexpress.com/states/kerala/2021/sep/23/laha-gopalan-champion-departs-midway-of-chengara-mission-2362473.html), 587 families live in Chengara estate.

In 2008, 316 families were evicted from 7 villages in Ernakulam for developing the Vallarppadom Container Terminal in Kochi. Their rehabilitation is not completed still. Quite a few families who have allotted alternate land have not been able to use the unusable land.

Thomas Pulickal, a 72-year-old farmer from Kottiyoor of Kannur district, who lost his land and house after acquisition by the government for an elephant corridor project in 2012, said, “I gave one acre of land and a really good house. Then, the market value was Rs 10,000 per cent, and the government offered Rs 1,208 per cent, which is around one tenth of market price. I got only Rs 6 lakh. Though a lower court ordered for more compensation a few years ago, the government has appealed against that order in a higher court.”

Two tunnels, each less than one kilometer, on the National Highway between Palakkad and Thrissur, had been under construction for over 15 years. Due to this, the existing road had never been regularly maintained during this period, leading to even bus operators suspending services for prolonged periods and the consequent harassment suffered by commuters on this route. There have been many vehicles that had serious breakdowns, leading to even more serious accidents and traffic jams throughout this period.

A survey had revealed that the Kerala State Road Transport Corporation is the worst managed State Road Transport Corporation in the whole country. There are many video reports of most of its buses, including the AC, low floor buses provided by the Centre, under the Jawaharlal Nehru Urban Renewal Mission, being garaged. An application under the RTI Act, seeking information, which should have been on the fingertips of the Chairman cum Managing Director, was stonewalled. It is considered one of the two white elephants in the State, the other being Kerala State Electricity Board.

Recent reports inform us that even the Beverages Corporation, the government operated, monopolistic vendors of Indian Made Foreign Liquors in the State, is in the red when it is an open secret that the government and the Kerala economy is surviving on sale of lottery tickets, liquor and foreign remittances. The reason is said to be manipulation of accounts and funds to keep the State surviving on overdraft.

And the scams that follow every government activity where big money of the tax payers is involved. In this case there are two: one, Ernakulam District Congress Committee President has actually dissected one of the K Rail branded survey stones to come up with the allegation that it actually costs only Rs 431.75 to make one of the stones, weight for weight, dimensions for dimensions and material for material and labor cost and it should cost only Rs 2 Cr for installing 20000 stones (obviously it includes transportation to the site and the labor cost for planting the stone). But the government is allegedly paying Rs 5500/- per stone. Thus there is a loss to the exchequer to the tune of Rs 9 Cr only in this element of cost of the project. He has concluded the video message by just requesting the public to be aware of this and imagine the extent of corruption that can happen in the estimated project cost of Rs 67,000 Cr. Does this revive memories of the CWG scam involving hiring of chairs at more than their cost price?

The other allegation that has come up is in the context of the alignment of the project itself. As was bound to happen, there are many allegation of the alignment being changed to suit influential people, including one minister of the current government led by the CPM.

 

So the question remains, if it is the authority of the government and the ‘misplaced’ grievance of the petitioners are the only relevant factors to be considered do we need courts, with such powers and the onerous responsibility to ensure the right to dignified life of the citizens, to sit in judgment?

This also reminds one of the ludicrous state of affairs, when Mayavati, the then  Chief Minister of Uttar Pradesh, had many sculpted elephant parks set up in different parts of the state at the exchequers cost. When questioned in court, the verdict was that since the cabinet had approved it, there was no need for judicial intervention. Later, during the elections the Election Commission had all those sculptures covered with tarpaulin or such material as the elephant was the election symbol of the ruling party.

 

This series interruptus cannot be complete without mentioning one more questionable verdict of the apex court in recent times. On One Rank, One Pension demand of the veterans of the armed forces. It has to perforce wait for the next time.  Meanwhile enjoy this tweet…

 

P M Ravindran/raviforjustice@gmail.com/190422

 

 

 

JUDICIAL PERFIDIES-15

 

The break, necessitated by the thread getting entangled with current events, continues…

 

Recently 4 citizens of this country have been provided additional security by the government. Three of them are judges of Karnataka High Court and the last one a film director, Vivek Ranjan Agnihotri, who brought the genocide of Kashmiri Hindus and their exodus that followed, on celluloid.

 

The three judges are the ones, including the Chief Justice, of the Karnataka High Court who upheld a Government of Karnataka order on uniforms in educational institutions. Based on these orders some institutions had banned the wearing of hijab, a head covering generally used by Muslim girls and women, in class rooms. This had led to threats on the life of the judges from some fundamentalist organizations. While the security of these judges were promptly stepped up, a leader of Thauheed Jamaat had also been arrested for the threat.

 

That apart, the question that bothers one is the day to day hearing conducted over a month, given the frivolous nature of the petition. The issues decided by the court, as per a report in India Today, dated 16 March 2022 (https://www.indiatoday.in/india/story/karnataka-hijab-controversy-high-court-1926036-2022-03-16) are:

 

Whether wearing a hijab is an essential part of religious practice in Islam? And, is it protected under Article 25 (Right to Freedom of Religion) of the Constitution?

 

Whether prescribing a uniform by school administration is legal or does it violate the fundamental rights of the petitioners as guaranteed under Articles 19 (Right to Freedom) and 21(Right to life and personal liberty)

 

Whether the government order of February 5 that led to ban on wearing hijab on the campus was incompetent, arbitrary and issued 'without application of mind'? And, would it amount to violation of the fundamental rights of equality before law (Article 14) and protection against discrimination on the ground of religion (Article 15)?

 

Whether the principal, teachers and the panel members responsible for banning hijab in classrooms committed a wrong against the students by implementing the school uniform rule?

 

The court concluded that hijab was not an essential part of religious practice in Islam, prescribing uniform was only a reasonable restriction permitted under articles 19 and 21, there was no case made to invalidate the government order or to initiate disciplinary action against the authorities who enforced the order.

 

Are these frivolous issues? To my mind, yes. Let us look at the issue from an ordinary citizen’s perspective and logic.

 

If it was an essential religious practice shouldn’t we be seeing all Muslim girls and women in hijab or burkha? Is that how it is around us?

 

How many Muslim women have we seen acting in our films? Have they ever been seen, even in real life, wearing a hijab or a burkha?

 

How many of us have seen any photograph of women Prime Ministers of Muslim countries like Pakistan and Bangladesh in hijab or burkha?

 

Are all Muslim women in our police and among judges and advocates seen in hijab or burkha always?

 

In fact there are enough photographs of muslim women, even in Saudi Arabia and elsewhere, without hijab or burkha, appearing in the print and visual media to nail the claim that it is an essential religious practice. 

 

Arif Mohamed Khan, currently Governor of Kerala, is on record having said that hijab was not an essential religious mandate in Islam. In fact, he has gone to the extent of saying ‘I’m opposed to minority commissions, rather strengthen the human rights panel that can take care of everybody’ (https://indianexpress.com/article/idea-exchange/idea-exchange-arif-mohammad-khan-governor-of-kerala-7818356/, 14 Mar 2022)

 

Also Dr Fazal Gafoor, President of the Muslim Educational Society, that manages 150 educational institutions, including medical, engineering and other professional colleges, is on record that burkhas and veils are banned in classes in all their institutions.

 

Also, Pillars of Islam, listed at https://www.britannica.com/topic/Pillars-of-Islam, are as follows: shahadah, the Muslim profession of faith; salat, or prayer, performed in a prescribed manner five times each day; zakat, the alms tax levied to benefit the poor and the needy; sawm, fasting during the month of Ramadan; and hajj, the major pilgrimage to Mecca, if financial and physical conditions permit.

 

Next, is the issue of personal liberty. This is a virtual minefield, especially when considered in the context of uniforms. After all it is not only Muslims girls who can have such liberty. In any case, once hijab is acknowledged as not being part of any religious mandate, there was absolutely no need to take up this issue separately.

 

The other issues- competence of the government to issue such orders and initiation of disciplinary proceedings against those who enforced the government’s orders are, on the face of it, simply a mockery of judicial proceedings.

 

Anyhow, the verdict has been challenged in the apex court almost immediately after it was announced. And the court has reportedly observed that there was no need to consider it urgently.

 

Incidentally, ever since the controversy, if it should be called one, erupted in Udupi, Karnataka, there have been many reports in the media of similar issues being dealt with by the courts earlier. Here are some of them.

 

In Fathema Hussain Sayed v Bharat Education Society, decided by the Bombay High Court in 2002, in the context of wearing hijab to a girls’ school, was since it was an all girls’ school this issue was irrelevant;

 

The Madras high court in Sir M. Venkata Subba Rao Matriculation Higher Secondary School Staff Association v Sir M. Venkata Subba Rao Matriculation Higher Secondary School, decided, in 2004, in favor of the school management which had imposed a dress code for teachers.

 

The same court in Kamalam v Dr. M.G.R. Medical University decided in favour of a medical intern, in 2009, who had questioned the College Management which had prescribed saree as dress code for interns; and  

 

In Fathima Thasneem v State of Kerala, decided by the Kerala High Court in 2018, in the context of wearing hijab to a Christian managed institution, had held that the (minority) institutional right prevailed over the personal right;

 

In his book, Landmark Judgments that Changed India, former judge of the Supreme Court Ashok K Ganguly has discussed the controversy over the Parliament's right to amend the Constitution and the Supreme Courts power to review those amendments. In doing so he writes this controversy emerged prominently in at least six judgments:

-Sri Shankari Prasad Singh Deo v Union of India and State of Bihar (AIR 1951, SC 458)

-Sajjan Singh V State of Rajasthan (AIR 1965 SC 845)

-IC Golaknath and others v State of Punjab and another (1967 SC 1643)

-Kesavananda Bharati Sripadagalvaru and others v State of Kerala and another (1973 4 SCC 225)

-Indira Nehru Gandhi v Sri Raj Narain and another (1975 Supp SCC 1) and

-Minerva Mills Ltd and others v Union of India and others (AIR 1980 SC 1789)

 

In Shankari Prasad, it was unanimously held that in the context of Article 13 'law' would not mean amendment to the Constitution made in exercise of constituent powers. This upheld the 1st amendment to the Constitution in 1951 whereby the 9th Schedule was introduced in the Constitution to keep the laws listed therein beyond judicial scrutiny.

 

In Sajjan Singh, Chief Justice Gajendragadkar had held that the dictionary meaning of amend cannot be relied on for construing the word amend in Article 368. It was held that the power to amend in the context of Article 368 was a very wide power and cannot be controlled by the literal dictionary meaning. And the author has observed as follows: while making such sweeping observations the learned chief justice did not support it with any discernable kind of reasoning except by relying on the reasons in Shankari Prasad which upheld the 1st Amendment to the Constitution. This he had claimed was far from being cogent. In this case, which upheld the 17^th amendment of the Constitution, judges Hidayathulla and Mudholkar had reservations on the idea of amending the fundamental rights and it led to the introduction of the concept of a basic structure of the Constitution.

 

Both the above decisions came under scrutiny in IC Golaknath and others v State of Punjab and another. Here, in a six to five majority decision it was held that Parliament will not have any power to amend any provision of Part III of the Constitution or to ‘take away or abridge fundamental rights, enshrined therein. The author asserts: Thus, Golaknath started the great war, as opposed to the earlier skirmishes in Sajjan Singh, between Parliamentary and judicial supremacy.

 

The Kesavananda Bharati case was filed in 1970 under Article 32 of the Constitution. Even as it was pending there were three amendments of the Constitution. The 24^th amendment, in 1971, was explicitly to get over the judgment in Golaknath. This case was heard by a 13 member bench from November 1972 to April 1973, when the apex court had only 15 judges. It was decided with 10 of them holding that the Golaknath case was wrongly decided. Six of the thirteen judges, even while upholding the amending powers under the 24^th amendment, held that the amending power could not be utilized to emasculate the basic structure of the Constitution, which, inter alia, included the fundamental rights.

I have always wondered what is this basic feature of the Constitution, that has been touted by the judiciary for quite some time now. In the context of Kesavananda Bharati judgment, Ganguly, quoting judges Shelat and Grover, has listed it as:

The supremacy of the Constitution;

The republican and democratic form of government and the sovereignty of the country;

The secular (my observation: the term secular was introduced in the Preamble in 1976, by the Constitution 42^nd Amendment Act) and federal character of the Constitution;

The demarcation of power between the legislature, the executive and the judiciary;

The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare state contained in Part IV; and,

The unity and integrity of the nation

 

And, there is a rider too…that the basic features could never be exhaustively indicated.

 

As per Ganguly, the issue of basic structure came up again in the Indira Nehru Gandhi v Sri Raj Narain and another, case. This is the infamous case where Indira Gandhi had appealed against her conviction by the Allahabad High Court in the election case. V R Krishna Iyer, a doyen among jurists, was sitting during vacation and had stayed the high court verdict till the appeal was finally disposed of. But before the appeal could be heard, Emergency was declared, Election laws were amended and within a span of five days the 39^th Constitutional Amendment Act was passed which was virtually directed towards the disposal of the pending appeal by holding that the election of the appellant is declared valid as per the amendment. Quixotically, the apex court invalidated the amendment that introduced Article 329A, but nevertheless set aside the Allahabad High Court judgment too.

 

The author, while dwelling a lot on individual judgments and the nuanced stands taken by the judges on the amending power issue had not dealt with in detail about the reasons setting aside the high court judgment. But one sentence that got my special attention is an observation made by one of the judges to the effect that the classification of the Prime Minister or the Speaker for excluding any challenge to their election under the impugned amendment did not satisfy the Doctrine of Reasonable Classification and amounted to favoured treatment and that may outrage the sense of justice of common men which sustains a democracy. Indeed, it did and continues to do so, that is outrage the sense of justice of common men.

 

But, still looking for the exact reasons I looked for the copy of the judgment at the website of the apex court and failed. But luckily I got one from https://indiankanoon.org/. And this is what I got to read at paragraph 694 of the order having 696 paragraphs:

 

These Acts effectively put an end to the two appeals before us for they answer the totality of the objections which were raised by Shri Raj Narian against the election of Smt. Indira Gandhi. The basis of the findings on which the High Court held against the successful candidate is removed by Act 40 of 1975 retrospectively. Were the law as it is under the amendments introduced by that Act, the High Court could not have held that the election is vitiated by the two particular corrupt practices.

 

And weren’t we under the impression that the law that applies is as on the date of the commission of the alleged offence?

 

The Minerva Mills case is another one where the apex court held the 42^nd amendment of the Constitution invalid as it overrode the basic structure doctrine but the nationalization of the Mill was upheld because the Nationalisation Act had been included in the 9^th schedule of the Constitution, which barred judicial review.

 

Just for the record, it was in April 1976 that the apex court gave its now infamous verdict in the ADM Jabalpur case.

 

https://en.wikipedia.org/wiki/ADM_Jabalpur_v._Shivkant_Shukla informs us that:

 

This judgment received a lot of criticism since it reduced the importance attached to Fundamental Rights under the Indian Constitution. Going against the previous decision of High Courts, the bench which included P. N. Bhagwati concluded in favour of the then Indira Gandhi government while only Justice Hans Raj Khanna was opposed to it. Bhagwati openly praised Indira Gandhi during the Emergency period, later criticized her when Janata Party-led government was formed and again backed Gandhi when she got re-elected to form government in 1980. Bhagwati was criticized for these change of stands, favouring the ruling government, which were deemed as to have been taken to better his career prospects. Bhagwati, later, in 2011, agreed with popular opinion that this judgement was short-sighted and "apologised".

 

An article ‘The darkest hour: ADM Jabalpur was a test for SC. Only the dissenter passed it’, dated 29 Auguest 2019, at  https://indianexpress.com/article/opinion/columns/supreme-court-adm-jabalpur-the-darkest-hour-5945825/ informs us as follows:

 

YV Chandrachud was among the four SC judges who sat on the five-judge Habeas Corpus bench for 37 working days from December 1975 to February 1976, and ruled that personal liberties in India were not to be necessarily upheld in the face of the executive after declaring Emergency.

 

On Independence Day 2019, his son, D Y Chandrachud, now judge of the same apex court, after annulling the above judgment, made a revealing personal statement: “I know he (former Chief Justice YV Chandrachud) believed through his life that ADM Jabalpur was wrong.”

 

I remember an advocate friend telling me that one of the first lessons taught in their law classes is argue the law when facts are against you, argue the facts when law is against you and yell like hell, if both the law and facts are against you. Of course, I can imagine what yelling can result in a real court room though some can be seen on silver screens. But what is important here is how it applies to bench. Cannot be any different, can it?

 

We all know that there are two parties to any case before a judge. Both have some facts, some laws and some case laws to present and it is left to the judge’s discretion as to which facts, laws and case laws to accept. And, no prizes for guessing how this discretion can be exercised.

 

P M Ravindran/raviforjustice@gmail.com/040422