Op EdsOP. ED.

Introduction

Eradication of political corruption is one of our long sought-after aspirations as a country to achieve an ideal democratic structure. However, in practical terms, these issues are far from being eliminated. Through media reporting, actions that count as an unethical or corrupt practice can also be seen very frequently. One of them is canvassing based on religion. While living in India we proudly adorn the title of being the largest democracy in the world and we also have the privilege of having the greatest democratic elections in human history. Elections in India are known as the Grand Festival of Democracy. However, in a country where elections are so important, there are certain things which make politics in India a dirty game, and Section 123(3) of the Representation of the People Act of 1951[1] (hereinafter referred to as ‘the Act’) is enacted to put a hold on one of the many ill practices.

Article 19(1)[2] defines the much-revered freedom of speech and expression. As mandated by the Constitution, freedom of speech and expression is a natural right which means that citizens acquire this right by birth. All the citizens hold the freedom of speech and expression but, it does not act as an unconditional licence. Therefore, certain reasonable restrictions are placed under Article 19(2) of the Constitution. Section 123(3) of the Act prohibits canvassing by an electoral candidate to woo voters in the name of race, caste, religion, community and language. It also prohibits usage of religious symbols or national symbols or flag for canvassing purposes. Usage of the aforesaid are considered to be corrupt practices. The electoral candidates cannot promise any public policy which they propose to implement on being successful. Article 25 of the Constitution guarantees the citizens of India, freedom of conscience and allows every citizen the right and freedom to profess, practice and propagate the religion of one’s choice subject to public order, health and morality.

The authors have attempted to compare Article 19(1)(a) of the Constitution of India and Section 123(3) of the Act and have studied whether Section 123(3) of the Act is violative of Article 19(1)(a) or not in the context of the demographical feature of India and in the backdrop of the voters of the constituencies.

The Role of Election Commission

The Election Commission of India is a constitutional body, deriving its source of powers and functions from Article 324 of the Constitution of India. Entry 72 of Union List – Schedule 7 provides for the source of power to Parliament to regulate and frame laws with respect to elections to Parliament, State Legislatures and the election of the President and the Vice- President of India.

The Election Commission of India (hereinafter referred to as ‘the ECI’), over the years has passed rigid orders barring candidates like Maneka Gandhi, Azam Khan, and Giriraj Singh from campaigning and canvassing for votes, on the grounds of making communal speeches, which were against Section 123(3) of the Representation of People’s Act, 1951. In all the cases, the ECI reasoned out that the aforesaid candidates acted in contravention to the Model Code of Conduct (‘MCC’) which comes into force after the declaration of election is announced by the ECI and fell squarely within the ambit of ‘corrupt practices’, by appealing in the name of caste or communal feelings to secure votes. MCC stipulates that no political party or candidate can secure votes based on caste and religion. In many constituencies, there are poor people who do not possess the knowledge about the voting rights and the requisite knowledge with respect to corrupt practices, etc.

Some candidates try to take advantage of such public ignorance and use religion as to appeal for votes. The candidates often make hollow promises that, ‘if’ they are voted to power, then they will roll-out every possible schemes and benefits for the people of one distinct religious sect.

The Election Commission endeavours to take all the necessary measures to ensure that free, fair and peaceful elections in the country. However, it has been observed in practice, that the guidelines issued by the Election Commission are not followed strictly, rather there is an attempt to flout the rules, which leads us to an inevitable conclusion, that there is a strong need for electoral reforms in the country. The Preamble of the Indian Constitution states that India is a democratic and a secular nation. The word “democratic” means that we have the right to choose our own representatives. A Government of the People, For the People and By the People. “Secular”, on the other hand, means that our country does not have an official State sponsored religion unlike many other countries of this world. For example, Pakistan is known by the official name – “The Islamic Republic of Pakistan” which clearly indicates that Pakistan has a State religion but, on the other hand India’s Constitution bars any State religion. The election being the most important and integral part of any democracy, should remain sacrosanct and therefore, it is again important to reiterate the fact that the candidates should not appeal for votes in the name of religion or any other class differentiation; it defeats the ethos of a healthy democracy.

Judicial Interpretations

The Indian judiciary has decided multiple cases on the aspect of “corrupt practices”. In S.R Bommai v. Union of India[3], the Supreme Court observed that secularism is a part of the basic structure of the Constitution. A section of people sometimes describes such an attitude of neutrality towards religious belief as compassionate neutrality, although religious freedom is guaranteed to everyone in India, the faith, religion, and belief of a person are immune from the radar of the State. All are equal before the State and have the right to equal treatment. There is no place for religion in machinery and the working of the State.

If the Constitution mandates the State to remain neutral in perception and behaviour vis-à-vis religion, the same requirement applies to political parties and their electoral candidates as well. The Constitution does not recognise, nor, does it allow the mixing of religion and State power. Concerning Section 123(3) of the Act, the Supreme Court in  S.R. Bommai[4] judgment warranted broader interpretation of Section 123(3) of the Act, thereby rejecting the restrictive reading of the provision as limited to the candidate and her or his opponent(s). However, this was an obiter dicta made in the judgment and is a not a part of the ratio of the judgment, as the case of S.R. Bommai was not directly related to Section 123(3) of the Act, but at the same time, favoured and observed the need for a broader interpretation of Section 123(3) of the RP Act, 1951.

It is important to mention that the Supreme Court has already upheld the constitutional validity of Section 123(3) of the RP Act, 1951 way back in the 1950s in  Jamuna Prasad Mukhariya v. Lacchi Ram[5] on the touchstone of fundamental right to freedom of speech and expression.

In  Manohar Joshi v. Nitin Bhaurao Patil  [6] the Supreme Court rather opined the opposite. The case came up during the Maharashtra State Assembly elections following the ghastly and the much-detested Mumbai riots of 1992-93, where Manohar Joshi, a prominent face of a political party promised to declare Maharashtra as the first Hindu Rashtra in India, if elected to power. The Supreme Court observed that Hindutva is a “way of life and state of mind”, thus there was no problem with it being invoked during the election. The Supreme Court decided this case in favour of Manohar Joshi by resorting to a debatable reasoning that such an exhortation did not amount to “corrupt practice” and though “despicable”, it can at best be described as a “hope” and “not appeal for votes on the ground of his religion.” This judgment was widely criticised by noted jurists in India and abroad.[7] However, such a practice is in violation of Article 25, as it places reasonable restrictions and the State has the liberty to make any law that restricts such economic, financial, political exhortation or activities which may be associated with religious practices.

Section 123(3) of the RP Act, 1951, strictly prohibits any appeal of votes in the name of religion, along with other caveats. The reason being that, India is a secular nation and it has no official religion, however, if we turn a blind eye to these electoral campaigns which are squarely a part of “corrupt practices” especially wooing voters in the name of religion, shall be against the ethos of democracy and secularism which is a part of the basic structure of the Constitution.

If we try to analyse the verdict of Manohar Joshi[8], from the perspective of a common man belonging to a particular religious sect, such a decision would instil fear in the minds of those people, as it runs counter to the constitutional morality and ethos imbibed by the framers of the Constitution.

In  Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel[9], the Supreme Court stated by a majority of 2:1, that the appeal of a political leader to the mass with respect to the fact that voting for a party will be against the religion does not amount to corrupt practice. The Supreme Court observed that, vide Section 123(3) of the RP Act, the candidate or his or her agent should not appeal to the voters for voting or refrain from voting for any person on the basis of their religion, that is, the candidate’s religion which means, that they should vote candidate on the basis of qualities and not on the religious grounds.

In  Dr. Ramesh Yashwant Prabhoo v. Prabhakar Kashinath Kunte and Bal Thackarey v. Prabhakar Kashinath Kunte [10] an election campaigning speech was made on the grounds of religion and a particular religious sect was maligned. The Court agreed with the High Court, that the speeches were within the ambit of corrupt practices of wooing of voters in the name of religion as covered under Section 123(3) of the RP Act, 1951.

In  Abhiram Singh v. C.D. Commachen [11], a seven-Judge Bench of the Supreme Court held that, calling for votes in elections based on religion, caste, race, community or language, including that of the electorate, would constitute a ‘corrupt practice’ under Section 123(3) of the RP Act, 1951 and  would call for the candidate to be disqualified. The Supreme Court opined that, “Election is a secular exercise and hence a process must be followed.” The relationship between man and God is an individual decision and this should be kept in mind,” ruled the Supreme Court in a 4:3 majority judgment.

The seven-Judge Bench of the Supreme Court held that an appeal in the name of religion, race, caste, community or language is inadmissible under the Representation of the People’s Act, 1951 and would constitute a corrupt practice adequate to nullify the election in which such an appeal was made regardless as to whether the appeal was in the name of the nominee’s religion. It is not an appeal to discuss matters relating to religion, caste, race, community or language which are of concern to voters on those grounds. The issues of constitutional importance include caste, race, religion and language.  The Constitution deals with them and includes provisions based on those features for the improvement of disabilities and discrimination. These are issues of concern to the electorate, especially where large segments of the population have been deprived of basic human rights due to caste and race-based prejudice and discrimination. The majority view was that, a secular State cannot identify itself with any religion or religious domination. This necessarily means that religion cannot play any role in the governance of a country that must be secular in nature at all times. The object of the RP Act, 1951 is to achieve the purity in elections and to ensure that the elections are free and fair, which means that caste, religion, language and community must be kept out of the electoral process.

The dissenting view (minority), held that, “to hold that a person seeking to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices they face on the basis of the characteristics of origin of religion, race, caste, community or language would be remedied is to reduce democracy to abstraction,” which means that if there is a real problem that is related to religion, democracy would be reduced to abstraction.

Conclusion

In secular politics, correct behavior or propriety requires that an appeal for votes should not be made based on the religion of the candidate, which in itself is not an index of the suitability of the candidate for membership of the House.

Article 19(2) allows for the imposition of reasonable restrictions on the exercise of the right conferred by Article 19(1)(a), which means that Section 123(3) of the Representation of the People’s Act, 1951 falls within the scope and ambit of “reasonable restrictions” and Section 123(3) is not an anti-thesis to Article 19(1) (a) as observed by the  Supreme Court in the judgment of Lacchi Ram in 1955[12] and also in the judgment of Bal Thackarey[13].

It can be safely concluded, that even if it is assumed that the Section 123(3) is a fetter only to be saved as a condition under which the candidate has the statutory right to contest the election, however, the fact that the system of separate electorates had been rejected by the framers of the Constitution and that secularism has been recognised to be a part of the basic structure of the Constitution, are relevant considerations to consider the fetter imposed by Section 123(3) of the RP Act, 1951, as a reasonable restriction on freedom of speech and expression, to maintain the code of conduct, required by morality and the propriety of social norms and to ensure free and fair elections which is also a part of the basic structure of the Constitution.

However, in our opinion, an electoral speech cannot, by itself, fall within the scope of sub-section (3) of Section 123, unless it can be interpreted as an appeal to vote for a candidate on the premise that, the candidate belongs to a particular religious community and that he is trying to woo voters based on religion and announcing packages as a part of his speech, or to abstain from voting for the candidate based on his religion. The mere reference to any religion in an election speech does not come within the definition of sub-section (3) and/or subsection (3-A) of Section 123, as a reference may be made to any religion in the context of secularism or to any political party to discriminate against any religious group or, more generally, for the conservation of Indian culture. In short, the mere use of the word ‘Hindutva’ or ‘Hinduism’ or the reference in an election speech to any other religion does not bring it within the scope of Section 123(3) and/or sub-section (3-A) to Section 123, unless the additional elements indicated in the provision, are also present in that speech. It is also essential to see the meaning and significance of the speech, and how it is likely to be perceived by the audience to whom the speech has been addressed.

Therefore, it is a task for the Election Commission to ensure that a strict vigil is kept and also it is also required that the election petitions are decided in a time-bound manner, as there are examples of election petitions getting decided after a period of four to five years, which allows a returned candidate to get away with a perpetration and the concept of free and fair elections are defeated.


*Advocate-On-Record, Supreme Court of India and Senior Associate, L&L Partners, New Delhi

**3rd Year Law Student, MAIMS, GGIPSU, New Delhi

[1] Representation of the People Act, 1951

[2] Article 19 of the Constitution

[3] (1994) 3 SCC 1  

[4] Ibid.

[5](1955) 1 SCR 608

[6] (1996) 1 SCC 169  

[7] https://www.outlookindia.com/magazine/story/endorsing-hindutva/200472

[8] (1996) 1 SCC 169

[9] (1969) 1 SCC 455

[10] (1996) SCC  130

[11] (2017) 2 SCC 629

[12](1955) 1 SCR 608

[13] (1996) SCC 130


Image Credits: Ecuador Times

Case BriefsDistrict Court

Patiala House Court, New Delhi:  While deciding the instant bail application of student activist Safoora Zargar, who was accused of giving inflammatory speeches, thereby inciting riots and violence in North East Delhi and was arrested and taken into custody under the provisions of the Unlawful Activities (Prevention) Act, 1967 [hereinafter UAPA], Dharmendar Rana, ASJ, refused to grant her the bail. Furthermore, pointing out that although no direct violence is attributable to the applicant/ accused, still she cannot shy away from her liabilities.

The Court said that, “When you choose to play with embers, you cannot blame the wind to have carried the spark bit too far and spread the fire”. However, taking note of the accused/ applicant’s pregnancy, he requested the Jail Superintendent to provide adequate medical aid and assistance to her.

The applicant/accused is a student of Jamia Milia University. It was alleged by the prosecution that she delivered an inflammatory speech at Chand Bagh area of North East Delhi. Aftermath of which, riots erupted leading to a great loss of life and property. As per the submissions of the Additional Public Prosecutor, Irfan Ahmed, there is enough evidence available on record to connect the applicant/ accused to the riots. It was further submitted that Section 43D (5) of the UAPA places a statutory restriction on the power of the Courts to release the applicant/ accused on bail. The prosecution further pointed out that certain incriminating materials were seized by the police and if this recovery is viewed against the backdrop of the inflammatory speeches given by the applicant/ accused and statements of the witnesses, then it is clear that the riots were a result of a conspiracy to overawe the government and disrupt the normal functioning of the capital city. Thus under these circumstances, the applicant- accused should not be granted bail.

Meanwhile, counsel for the applicant/accused, Sanya Kumar, contended that the applicant/accused is an innocent woman who has a contrary opinion on the Citizenship Amendment Act (hereinafter CAA) and had simply exercised her fundamental right under Article 19(1)(a) of the Constitution by being involved in a peaceful protest against the CAA. She further pointed out to the court that the applicant/accused delivered her speech on 23-02-2020 and riots started in the afternoon of 24-02-2020. The evidences clearly suggest that the applicant was not present on 24-02-2020, therefore the alleged violence cannot be attributed to her and the provisions of the UAPA have been wrongly invoked against her. The counsel also contended that the applicant/ accused should be granted bail on humanitarian grounds as she is 21 weeks pregnant and suffers from various other medical complications and given the spread of Covid-19, the applicant/ accused is particularly vulnerable.

Perusing the contentions of both the parties, the Additional Sessions Judge observed that freedom of speech and expression is indeed a foundation for strong and vibrant democracy, however the same is not an absolute right and is subject to the reasonable restrictions laid down in Article 19(2) of the Constitution. Considering the provisions of the UAPA, the Court observed that any activity which creates a disorder and disturbance of law to such an extent that an entire city is “brought down to its knees”, constitutes an ‘unlawful activity’ under Section 2(o) of the UAPA. Concurring with the contentions of the prosecution, the Court noted that it cannot ignore the material available on record which clearly suggests that there was a conspiracy to create an unprecedented scale of destruction and breakdown of law and order. Finding no merits, the Court thus dismissed the bail application. [State v. Safoora Zargar, Bail Application No. 1119/2020 , decided on 04-06-2020]

Hot Off The PressNews

With the never-ending controversies and never seen before moves by and against the judges of the top-most Court of the nation, it is safe to say that Indian Judiciary is in deep crisis. In January this year, the senior most judge of the Supreme Court of India, Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference over the controversy relating to assignment of cases by the CJI.

Addressing the nation through the press conference, Justice Chelameswar said:

“With no pleasure we are compelled take the decision to call a press conference. The administration of the Supreme Court is not in order & many things which are less than desirable have happened in last few months.”

The judges had also released the letter that they had addressed to the CJI on the said issue. On the principle of Chief Justice being the ‘master of the roster’, the letter stated:

“The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transaction of the business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.”

Earlier, the Court number 1 of the Supreme Court witnessed a high voltage drama when a 7-judge bench headed by the Chief Justice of India, Justice Dipak Misra, assembled for reviewing the 2-judge bench order calling for constitution of a Constitution Bench of the first five judges of the Supreme Court to hear the matter wherein it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam. The bench of J Chelameswar and S. Abdul Nazeer, JJ had given the said order on 09.11.2017 .

In the latest turn of events, Justice Chelameswar has yet again written a letter to the CJI, highlighting the ‘Executive encroachment’ in the judicial matters. In the letter dated 21.03.2018, Justice Chelameswar has said:

“We, the judges of the Supreme Court of India, are being accused of ceding our independence and our institutional integrity to the Executive’s incremental encroachment. The Executive is always impatient, and brooks no disobedience even of the judiciary if it can. Attempts were always made to treat the Chief Justices as the Departmental Heads in the Secretariat. So much for our “independence and preeminence” as a distinct State organ.”

The latest letter that is doing the rounds, Justice Chelameswar has highlighted the issue of ‘executive bidding’ by Justice Dinesh Maheswari, the Chief Justice of the Karnataka High Court for the elevation of Krishna Bhat, a District & Sessions Judge. He said:

“We only have to look forward to the time, which may not be far-off if not already here, when the executive directly communicates with the High Courts about the pending cases and what orders to be passed. We can be happy that much of our burden is taken away. And an Honourable Chief Justice like Dinesh Maheswari may perhaps be ever willing to do the executive bidding, because good relations with the other Branches is a proclaimed constitutional objective.”

Considering the seriousness of the issue, Justice Chelameswar said:

“I am of the opinion that this matter is now ripe for the consideration of the Full Court on the judicial side, if this institution really is to be any more relevant in the scheme of the Constitution.”

Below is the full text of the letter:

To

Hon’ble Mr. Justice Dipak Misra

Chief Justice of India

Lord Bingham in his book ‘The Rule of Law’ said that “there are countries in the world where all judicial decisions find favour with the powers that be, but they are probably not places where any of us would wish to live”. Let us also not live where Bingham loathed to live.

We, the judges of the Supreme Court of India, are being accused of ceding our independence and our institutional integrity to the Executive’s incremental encroachment. The Executive is always impatient, and brooks no disobedience even of the judiciary if it can. Attempts were always made to treat the Chief Justices as the Departmental Heads in the Secretariat. So much for our “independence and preeminence” as a distinct State organ.

Someone from Bangalore has already beaten us in the race to the bottom. The Chief Justice of the Karnataka High Court has been more than willing to do the Executive bidding, behind our back.

I read with dismay and disbelief the “confidential report” sent to the Hon’ble Chief Justice by Shri Dinesh Maheswari, the Chief Justice of Karnataka High Court. To begin with, it was unasked for. Second, it is uncalled for. The confidential report blatantly records the impropriety of the executive directly contacting the High Court to reassess a collegium recommendation of the Supreme Court.

It is a moot proposition that any Principal & Sessions Judge is the administrative head of the district he works in. He has to exercise his supervisory, and “disciplinary” power over all other judicial officers in that district.

From the letter of the Hon’ble Chief Justice, Karnataka, the following facts can be culled out. In 2014, when Shri Krishna Bhat, a District & Sessions Judge, was working in Belagavi district, he sent to the High Court a report concerning the (mis)conduct of Ms. M.S. Shashikala, a Judicial Magistrate of First-Class. The High Court registered a vigilance case (HVC) No.93/2014 but did not choose to act upon the same till 18.02.2016. Till that time, Krishna Bhatt had faced no allegations from any quarter, including his subordinates.

With Shri Krishna Bhatt’s elevation around the corner, Ms. M.S. Shashikala chose to complain against him.

If such retaliatory complaints are entertained, no career conscious judge would ever risk disciplining his subordinates.

From the material available on record, it appears that Ms. M.S. Shashikala offered her resignation in April 2016 and withdrew it in June 2016. The then Chief Justice of Karnataka High Court was asked to provide the details and background of Ms. Shashikala’s resignation. The then Chief Justice, after inquiring into the issue, sent two confidential reports dated 14.10.2016 and 14.11.2016. He asserted that the allegations levelled against Shri P Krishna Bhatt were incorrect and concocted. He has found that Ms. M.S. Shashikala has made her allegations only to malign Shri P Krishna Bhatt.

In the meanwhile, acting on the recommendations of the Karnataka High Court collegium, we recommended his name, along with five others from the service category, for elevation. At that time we were aware of the allegations but we consciously and rightly disbelieved them.

Surprisingly, the Government selectively withheld his elevation and accepted that of the remaining five others’, though all the five are juniors to Shri Krishna Bhatt.

Now comes what is unpredictable and unthinkable. If the government had any reservations or misgivings about Shri Krishna Bhatt’s nomination, it could have sent back the recommendation for our reconsideration — a well-established though long forgotten practice. Instead, it sat tight on the file. In other words, our recommendation still retained its validity and legitimacy.

For sometime, our unhappy experience has been that the Government’s accepting our recommendations is an exception and sitting on them is the norm. “Inconvenient” but able judges or judges to be are being bypassed through this route.

I do not think any of us disputes that elevating a person to be a judge of a High Court is a constitutional concern involving two authorities: the Supreme Court and the executive. The role of High Court ceases with its recommendation. Any correspondence, clarificatory or otherwise, has to be between these two authorities. To my mind, I could recollect no instance from the past of the executive bypassing the Supreme Court, more particularly while its recommendations are pending, and asking the High Court, as if it were an interdepartmental matter, to look into the allegations already falsified and conclusively rejected by us. Asking the High Court to reevaluate our recommendation in this matter has to be deemed improper and contumacious.

Now the Chief Justice of Karnataka High Court informs us that he had received a communication from the Ministry of law and justice “to look into the issue.” The Chief Justice, establishing himself to be more loyal than the King, acts on it, convenes a meeting of the Administrative Committee, and decides to reinvestigate the issue, thus burying the previous Chief Justice’s findings on the same issue, given at our asking. He has been gracious enough to inform us, at least now.

A long time ago, an idealist, without knowing the ways of the world, has said this: the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Naïve as it may sound now, that was James Madison in the Federalist Papers No.47.

We only have to look forward to the time, which may not be far-off if not already here, when the executive directly communicates with the High Courts about the pending cases and what orders to be passed. We can be happy that much of our burden is taken away. And an Honourable Chief Justice like Dinesh Maheswari may perhaps be ever willing to do the executive bidding, because good relations with the other Branches is a proclaimed constitutional objective.

We cannot deny Robert H. Jackson’s assertion in United States v. Wunderlich that men are more often bribed by their loyalties and ambitions than by money. Let us also not forget that the bonhomie between the Judiciary and the Government in any State sounds the death knell to Democracy. We both are mutual watchdogs, so to say, not mutual admirers, much less constitutional cohorts.

I am of the opinion that this matter is now ripe for the consideration of the Full Court on the judicial side, if this institution really is to be any more relevant in the scheme of the Constitution.

Since we are a precedent oriented institution, I may be pardoned for quoting a precedent to the Master of Roster that it was exactly a similar letter written by the then Union Law Minister which sparked up a judicial debate in S.P. Gupta.

With Regards,

Yours sincerely,

(J. Chelameswar)

Hot Off The PressNews

In a first, the senior most judge of the Supreme Court of India, Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference at his residence to put an end to the speculations making rounds over the differences between the judges and the Chief Justice of India, Justice Dipak Misra, over the assignment of cases.

Addressing the nation through the press conference, Justice Chelameswar said:

“With no pleasure we are compelled take the decision to call a press conference. The administration of the Supreme Court is not in order & many things which are less than desirable have happened in last few months.”

He further added that being the senior most judges of the institution of judiciary, they owed a responsibility to the institution and to the nation and hence, they tried to persuade the CJI to remedy and measures but since none of their efforts worked, they had to call for a press conference.

He said:

“We met CJI with a specific request which unfortunately couldn’t convince him that we were right therefore, we were left with no choice except to communicate it to the nation that please take care of the institution.”

Stating that it was important for the nation to know what is what, Justice Chelameswar said:

‘All four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will survive in this country, or any country.”

The judges also provided a copy of the letter that they had written to the CJI. On the principle of Chief Justice being the ‘master of the roster’, the letter states:

“The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transaction of the business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.”

Though the judges did not mention the details in the letter, they said that they did so in order to avoid embarrassing the institution but note that such departures have already damaged the image of this intuition to some extent. The judges, through the letter, told the CJI:

“There have been instances where case having far-reaching consequences for nation & the institution had been assigned by Chief Justice of this court selectively to benches ‘of their preference’ without rationale basis. This must be guarded against at all costs.”

It is important to note that earlier, the Court number 1 of the Supreme Court witnessed a high voltage drama when a 7-judge bench headed by the Chief Justice of India, Justice Dipak Misra, assembled for reviewing the 2-judge bench order calling for constitution of a Constitution Bench of the first five judges of the Supreme Court to hear the matter wherein it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam. The bench of J Chelameswar and S. Abdul Nazeer, JJ had given the said order on 09.11.2017 .

The four judges are the senior most judges of the Supreme Court of India after the CJI. While Justice Chelameswar, Justice Lokur and Justice Jospeh are set to retire this year, Justice Ranjan Gogoi is next in line to be the Chief Justice of India after CJI Justice Dipak Misra retires on 02.10.2018.

Case BriefsHigh Courts

Uttaranchal High Court: Addressing the present petition highlighting the apprehensions that are being raised upon the functioning of Electronic Voting Machines (EVMs) and Verifiable Paper Audit Trial (VVPAT) Machines, especially in the light of the recently concluded Legislative Assembly Elections in five States, the Division Bench of Rajiv Sharma and Sharad Kumar Sharma, JJ., observed that, Article 324 of the Constitution has a wide ambit and gives the Election Commission powers to cope up with any unprovided scenarios vis-à-vis smooth conduction of elections. Thus the Election Commission can use its residuary power under Article 324 to fill the vacuum and to “meet unforeseen contingencies”. However the Court noted that off late various political parties have started a systematic campaign to tarnish the image of the Commission by casting doubts upon the EVMs. To this, the Court held that, it cannot allow the national parties to tarnish the image of a Constitutional body such as the Election Commission and that freedom of speech and expression doesn’t permit to level unsubstantiated charges against the constitutional bodies.

The petitioner, a politician had expressed certain reservations regarding the use of EVMs. Counsel for the petitioner Arvind Vashisth contended that the role of Election Commission gets over the moment election results are declared, therefore the proposed “EVM Hackathon” on 03.06.2017 as it has been notified in the Commission’s press release dated 20.05.2017, will affect the outcome of the pending election petitions in this Court and other High Courts. The respondent argued that the EVM is not hackable and it cannot be physically tampered during transportation or at its manufacturing stage and the proposed ‘hackathon’ has been undertaken by the Commission to allay the apprehensions of the political parties.

The Court held that broad meaning should be given to Article 324 and the Court also must “promote”, “nurture” and “maintain” independence of constitutional bodies and protect them from criticism. It further stated that use of EVM has been ordered by the Commission while exercising the power under Article 324. The Court lastly held that the faith of people must be safeguarded on fair and free election which is a basic feature of the Constitution, therefore in public interest the Court restrained all political parties, NGO’s and individuals from criticizing the use of EVM, till any decision is reached over the pending election petitions and the decision to hold the ‘hackathon’ challenge was left on the discretion of Election Commission with a caveat that the results of the challenge does not in any way affect the decision in the pending petitions. [Ramesh Pandey v. Election Commission of India, 2017 SCC OnLine Utt 676, decided on 02.06.2017]

 

Case BriefsSupreme Court

Supreme Court: In the controversy relating to the Arunachal Pradesh elections where the illegal withdrawal of the nomination of Atum Welly resulted into unopposed election of Kameng Dolo, the Court upheld the decision of the Gauhati High Court wherein the said election was held to be void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951.

Noticing that there were only two candidates in the fray, one from the Indian National Congress and the other from the Bhartiya Janata Party and that the election petitioner while campaigning came to know that his nomination papers were withdrawn that were alleged to be withdrawn by Sanjeev Tana who was neither the candidate himself nor the proposer nor the election agent of the candidate and, therefore, the High Court held that he was not authorized to seek withdrawal of the candidature. It was noticed that though it is a settled law that election of a candidate who has won at an election should not be lightly interfered with but it has also to be borne in mind that one of the essentials of election law is to safeguard the purity of the election process and to see that people do not get elected by flagrant breaches of that law or by corrupt practices.

Refusing to interfere with the decision of the High Court, the bench of Dipak Misra and A.M. Khanwilkar, JJ said that Section 37 of the Act reflects that the legislature has provided number of safeguards before exercising the authority for acceptance of withdrawal of a candidate. The intention of the Parliament is that due care and caution has to be taken in letter and spirit so that no confusion is created. The issue of alert and careful exercise gains more significance when there are two candidates because if one’s withdrawal is allowed in complete violation of the statutory provision, the other candidate gets automatically declared elected, for there is no election, no contest. When in transgression of the statutory provision, a candidate’s candidature is allowed to be withdrawn, it will tantamount to sacrilege of democracy.

The Court noticed that, in the instant case, there was no contest at all and there can be no manner of doubt that there was flagrant breach of Section 37 of the Act leading to unopposed election of the appellant. Hence, the election had been materially affected and accordingly the election result dated 15.03.2014 is void under Section 100(1)(d)(iv) of the Act. [Kameng Dolo v. Atum Welly, 2017 SCC OnLine SC 556, decided on 09.05.2017]

 

Op EdsOP. ED.

The power to make laws in most modern societies lies in democratic institutions. Under the Constitution of India (“the Constitution”) as well, this power is entrusted with the legislature. However, Article 123 of the Constitution allows the head of executive (which is the President under the Constitution) to promulgate ordinances to deal with situations which require immediate attention. It is considered to be a very important provision of the Constitution (with two major constitutional amendments focusing on them)[1], and has come to be accepted despite its obvious and inherently undemocratic nature. This article intends to show that this provision to promulgate ordinances is often misused and needs to be amended.

The President is allowed to exercise legislative powers in cases which require “immediate action”. It would appear, however, that this legislative power is exercised by the President without any urgency. Several ordinances are regularly passed on subjects where no immediate action is required and which would not justify bypassing the democratic process.[2] In fact, the number of ordinances promulgated and the subject-matters dealt therein would make one believe that the Indian legislative system is functioning with President only.

It is obvious that this was not what was intended by the Constituent Assembly when the provision for ordinances was included in the Constitution. The use of the words “immediate action” make this clear. It was also suggested in the Constituent Assembly to change the heading of the Chapter to read “Extraordinary Powers of the President” instead of the current “Legislative Powers of the President” to make it clear that the powers “are extraordinary; that is to say, they are not to be employed in normal times”[3].

It would appear that the provision is often used by the ruling Governments to quickly enact laws that (in their opinion) do not require much debate or attention. This is because the President has to act on aid and advice of the Council of Ministers, and keeping in mind the ordinances promulgated in the past, amendments to the existing laws is often made through ordinances. Ordinances appear to be a loophole that the ruling Governments have found to push laws without bringing much attention or spending time in Parliament.

Romesh Thapar explains, “[government] by ordinance is the pattern these days. Apart from the fact that the speculators have to be curbed, there is no time to go through the tedious procedures in Parliament which permit disruptive lobbies to build, lobbies that paralyse action.”[4] None of this, however, justifies the fact such procedures have practically just become tricks to bypass the ordinary democratic process. In a later article, Thapar agrees, “There is not a situation in India which cannot be handled by the normal law of the land, that is, if the instruments of policy implementation are kept intact and not reduced to disarray by politicians and fawning bureaucrats.”[5]

An inherent premise of the above argument is that if something is undemocratic, it is undesirable. However, there is no reason for this to be true. A good decision can come out of an undemocratic procedure as well. An analysis of ordinances promulgated in the recent past would reveal that most of them are introduced as bills in Parliament and accepted.[6] This would imply that the democratic process has approved of the ordinance as being correct and desirable.

Why, then, is the lack of democracy in ordinance procedure being portrayed as bad in the present article? This is because of several reasons. Correctness of decision aside, the fact, in theory at least, remains that the provision is undemocratic at heart — a State may be ruled by a monarch for a long time, however, that does not justify his exercise of power over other people regardless of the correctness of the decision. Further, such a State does not have any legitimacy attached to it. As several authors have argued, legitimacy of institutions runs to the core of a State, and a failure to justify its legitimacy could directly attack its sovereignty.[7]

Moreover, just because practically a provision is used only to arrive at the correct decision does not mean that this will remain the case in the future as well. Many scholars agree that there is a “[p]ossibility of abuse of the ordinance-making power”[8] and there is “no guarantee that such powers will not be abused in the future”[9].

This potential for misuse arises from the way Article 123 is phrased and the lack of provisos or safeguards thereto. The President may promulgate ordinances if he is satisfied that there are circumstances which make it necessary for him to take action. While the ordinance is amenable to judicial scrutiny, the court would not look into the preconditions of necessity.[10] Moreover, even the concept of mala fide would not apply as legislative intentions are out of judicial reach.[11] Further, it is for the petitioner to prove that necessary circumstances could not have existed.[12] Such a scheme of things is strange — the burden of proof should be on the executive to prove that the undemocratic use of power was necessary, and not vice versa.

One of the biggest factors adding to the potential for misuse is the fact that ordinances can go without adequate legislative review for more than half a year at a time. And even if the ordinance lapses or is repealed by the Legislative Assembly, the ordinance would not be void ab initio. Any legal effect caused by the ordinance in that period would continue to exist. Thus, even if the democratic institutions are to approve or disapprove of the acts later, the fact is that the undemocratic laws can affect the nature of the Indian State quite drastically.

Several authors have argued that any provision for ordinances is unnecessary and should be taken out of the Constitution. A.G. Noorani has argued:

How do countries like the US and Canada deal with such a situation? In the same way that any other country does — summon the legislature urgently. [This power] has been abused not only by the States but also by the Centre with no check by the Supreme Court.… The precondition of urgency has been ignored…. The existence of the circumstances has never been probed into by the courts.[13]

Various other authors support this — “Legislation by ordinances is not extra-constitutional, but improper and undemocratic.”[14] Prof. M.P. Jain agrees with Noorani, saying that “[t]he executive in Britain or the USA enjoys no such power.”[15] In a different article, Noorani argues, “History will be made the day the Supreme Court holds that the very power to make … ordinances is judicially reviewable and is subject to strict conditions”[16].

Such a situation, where the power to promulgate ordinances is completely taken out of the Constitution of India would indeed be ideal. However, if the State is of the opinion that it is necessary to retain this provision (to deal with urgent situations, for instance), it is essential that essential safeguards be put into place.

The time period for which the ordinance is to be in force needs to be reduced drastically, to a few weeks at most. This is because if there is a situation which requires immediate attention, then the legislature needs to be summoned as soon as possible to deal with it. Ordinances should only be used as a temporary measure till the legislature assembles for the emergency meeting.

Further, provisos must be included to the effect that necessity of action or urgency to promulgate action needs to be proved by the executive. Ordinances should only be used for situations of utmost emergency, and having a provision which requires material to be shown to ensure that necessary conditions exist is necessary to balance the provision with at least some responsibility added to the executive. Another provision that could be included to ensure that ordinances are promulgated only in situations of urgency is to include a restriction which says that ordinances can only be issued when emergency has been proclaimed by the President. This would again make sure that ordinances are not issued unnecessarily when a democratic procedure could be followed. Ultimately, the aim should be to reduce the undemocratic elements to a minimum (or, if possible, completely eliminate it), and where in the Constitution it still remains, high requirements be imposed for its usage.

*3rd year student, BA LLB (Hons.), Jindal Global Law School, O.P. Jindal Global University, Sonipat.

[1]  The Constitution (Thirty-Eighth Amendment) Act, 1975 and the Constitution (Forty-Fourth Amendment) Act, 1978.

[2] For instance, Arbitration and Conciliation (Amendment) Ordinance, 2015; Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015; Negotiable Instruments (Amendment) Ordinance, 2015; among many others.

[3]  Constituent Assembly Debates, p. 201

[4]  The Trouble about Ordinances, Romesh Thapar, Economic & Politicial Weekly (13-7-1974).

[5]  Law or Ordinance?, Romesh Thapar, Economic & Political Weekly (23-11-1974).

[6]  Ordinances promulgated in and after 2014 have been considered for this analysis.

[7]  Mithi Mukherjee, An Imperial Constitution?: Justice as Equity and the Making of the Indian Constitution, in India in the Shadows of Empire: A Legal and Political History, pp. 199-201 (Oxford University Press, 2011).

[8]  Introduction to the Constitution of India, Durga Das Basu, Nagpur LexisNexis, (22nd Edn., 2014) p. 207.

[9]  Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[10]  A.K. Roy v. Union of India, (1982) 1 SCC 271; S.K.G. Sugar Ltd. v. State of Bihar, (1974) 4 SCC 827.

[11]  T. Venkata Reddy v. State of A.P., (1985) 3 SCC 198; State of Karnataka v. B.A. Hasanahba, 1998 SCC OnLine Kar 93 : AIR 1998 Kar 210.

[12]  Gyanendra Kumar v. Union of India, 1996 SCC OnLine Del 367 : AIR 1997 Del 58.

[13]  Ordinance Raj, A.G. Noorani, Economic & Political Weekly (12-12-1998).

[14] Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[15]  Indian Constitutional Law, M.P. Jain, Nagpur LexisNexis (6th Edn., 2003) p. 181.

[16]  Supreme Court and Ordinances, A.G. Noorani, Economic & Political Weekly (28-2-1987).

Law School NewsOthers

We, the concerned students, researchers and teaching faculty, of the National Law School of India University, Bangalore express deep condolences on the sad demise of Mr. Rohith Vemula, a PhD scholar in Science, Technology and Society Studies Programme at the University of Hyderabad (UoH).

Rohith was one among the five Dalit students who were expelled from their hostels and were not permitted to participate in the student’s union elections, enter administration building and other common places in groups on account of an earlier alleged altercation with a member of another student organization in the University. However, in the process, the present administration ignored the discrepancies and inconsistencies in the findings and recommendations of the Proctorial Board. Rohith and his friends were vocal about the instances of caste-discrimination on campus, and have been fighting against the insensitive attitude of the administration, which has shown blatant disregard for social justice and human dignity.

This horrifying incident cannot be viewed in isolation. Our educational institutions are becoming increasingly exclusionary with time. This is also a reflection on the shrinking democratic spaces within our institutions, with dissenting voices being brutally suppressed and termed as ‘anti-national’. It is significantly an onslaught on the freedom of speech and expression guaranteed by the Constitution of India.
The Police registered an FIR on Rohith’s suicide, against few individuals, which includes the current Vice Chancellor, Prof. Appa Rao Podile. FIR was registered under IPC section 306 (Abetment of Suicide) and Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Further, the students seeking end to discrimination against Dalits on campus, including Rohith, had spoken about the vindictive nature of the administration on previous occasions. We therefore demand that those who are responsible for Rohith’s suicide and social boycott of the students be made answerable and an impartial investigation must be conducted to look into the issue.
We stand in solidarity with the agitating academic community of UoH. It is our responsibility to strongly condemn any such violations of human rights and uphold the spirit of the Constitution. We condemn any attempt to shrink democratic spaces within educational institutions.
Signatures:
1. Deepankar
2. Osho Chhel
3. Gaganjyot Singh
4. Aditya Mehta
5. Karundeep Singh
6. Shreyas Satadeve
7. I.R. Jayalakshmi
8. Vijay Kishor Tiwari
9. Neenu Suresh
10. Sonali Charak
11. Chirayu jain
12. Simranjit Singh
13. Spadika Jayaraj
14. Kaushik Prasad
15. Rajini Murugeshan
16. Annie Jain
17. Apurva Wankhede
18. Rohan Gupta
19. Arti Kumari
20. Vani Sharma
21. TVS Sasidhar
22. Abhishek Kumar
23. Noaman M
24. Harsha N
25. Mukta Joshi
26. Megha Mehta
27. Ayush Singh
28. Divij Joshi
29. Beena
30. Elizabeth V.S.
31. Mathavi
32. Reeya Singh
33. Nandini Biswas
34. Pankhuri Agrawal
35. Dharma Teja
36. Nikita Garg
37. Pradeep Ramavath J
38. Jyotsna Sripada
39. Paldron Tenzin Tsering
40. Aditya Vardhan Sharma
41. Vikas Gautam
42. Sukhbeer Singh
43. Siddharth Raja
44. Protyush Choudhury
45. Hafsa Bashir Bhat
46. Neha Rajpurohit
47. Akash Meena
48. Aishwarya Gaur
49. Prachi Singh
50. Kriti
51. Aakarshi Agarwal
52. Pooja Singh
53. Yogesh Dilhor
54. Sanjana.M
55. Meghana Muddurangappa
56. Harjas Singh
57. Aditya Patel
58. Swati Mohapatra
59. Saumya Maheshwari
60. Padmini Baruah
61. Thangminlal Haokip
62. Devashish Yadav
63. Satya S. Sahu
64. Manmeet Singh
65. Aswin Vinodan K
66. Dr. Anuja. S
67. Abhijit Singh
68. Aneesha Johny
69. Ashwajit Gautam
70. Neeraj Panicker
71. Noaman M
72. Arvind Ghimray
73. Sneha S K
74. Ashwin Pantula
75. Anarghya Chandar
76. Shruthi Raman
77. R Jagannath
78. Dr.D.S.Makkalanban
79. Atulaa Krishnamurthy
80. Surbhi Ajitsaria
81. Bilal Anwar Khan
82. Nimoy Sanjay Kher
83. Simi Sunny
84. Anjali Shivanand
85. Kunal Ambasta
86. Shrikant Wad
87. Shibu Sweta
88. Samuel Sathyaseelan
89. Aditya Mukherjee
90. Sharvari Kothwade
91. Sharmila R.
92. Akshat Agarwal
93. Sharda S
94. Sharwari
95. Nupur Raut
96. Parth Singh
97. Dhruv Jadav
98. Aman Shukla

Supreme Court

Supreme Court: Rejecting the practice of causing delay in the conclusion of the trial of an election petition which leaves an impression that the elected candidate has the skilfulness to enjoy his full term without being concerned or bothered about the challenge to his election, the bench of Dipak Misra and P.C. Pant, JJ held that the same defeats the very object of expeditious disposal of election petition as envisaged in Section 86(7) of the Representation of the People Act, 1951 (the Act). The Court said that the fundamental purpose for expeditious disposal of an election petition is to sustain the purity of parliamentary democracy.

Considering the case at hand where the elected candidate has been taking time at his own pleasure and leisure and filing applications as he desired giving vent to his whim and fancy and the Court has granted adjournment in an extremely liberal manner, the Court, going into the legislative intent of the provision in question, said that engrafting a provision in the nature of Section 86(7) of the Act, the legislative intendment is clear that the Court has to endeavour to dispose of an election petition as expeditiously as possible and not to allow the parties to take resort to unnecessary adjournments or file vexatious applications.

Laying emphasis on fundamental values of democracy, the Court said that a voter casts his vote as a responsible citizen to choose the masters for governing the country, hence, it should be election candidate’s sanguine effort to become free from the assail in the election petition and work with attainment and not take shelter seeking adjournments with the elated hope that he can be triumphant in the contest by passage of time. Pukhrem Sharatchandra Singh v. Mairembam Prithviraj,  decided on 01.10.2015