The Supreme Court today said that Article 370 of the Constitution which gives special status to Jammu and Kashmir is not a temporary provision.
The Supreme court said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was “not a temporary provision”.
“The issue concerned is covered by the judgement of this court in the 2017 SARFAESI matter, where we have held that despite the headnote of Article 370, it is not a temporary provision,” a bench of justices A K Goel and R F Nariman said.
During the hearing, Additional Solicitor General Tushar Mehta appearing for the Centre said that the matter be heard after some time as similar matters are pending before the court and are to be listed shortly.
Senior advocate Rajeev Dhavan and advocate Shoeb Alam appearing for the Jammu and Kashmir government clarified that other matters which are pending before the apex court relates to Article 35 A of the Constitution and not Article 370 as submitted by the ASG.
Dhavan said that those matter cannot be heard along with the present case, which only deals with Article 370.
The bench then adjourned the matter for hearing by three weeks on the insistence of the ASG.
The top court was hearing an appeal filed by petitioner Kumari Vijayalakshmi Jha, against the Delhi High Court’s April 11, 2017 order dismissing the plea seeking a declaration that Article 370 is temporary in nature.
The petitioner had claimed before the high court that Article 370 was a temporary provision that had lapsed with the dissolution of the Constituent Assembly in 1957.
The petition had said that the continuance of the temporary provision of Article 370 even after dissolution of Constituent Assembly of J&K, and that of J&K Constitution which has never got the assent of the President of India or Parliament or the government of India, “amounts to fraud on the basic structure of our Constitution”.
Supreme Court Judge, Justice J Chelameswar, today asked the youth to value the biggest public policy document – the Constitution of India- which was prepared by people who made great sacrifices for the country as freedom fighters.
“The greatest public policy is the Indian constitution itself and the centre which created it is the Constituent Assembly,” Justice Chelameswar said.
He said the wide range of knowledge of each member of the constituent assembly and the great experience which the members of the constituent assembly had, enriched the constitutional document while creating a structure, giving clear guidelines as to how the country’s political future of the country should be.
Each set of words in the documents reflect their experience and knowledge, he said.
Justice Chelameswar was one of the four Supreme Court judges, who recently virtually revolted against the Chief Justice, raising a litany of problems, including assigning cases in the top court.
He was addressing a gathering at the inauguration of a department in an educational institution here.
Justice Chelameswar said he was aware of the fact that the constitution was amended from time to time depending upon the demands of the time.
“But so long as we are governed by the constitution, our policymaking should be subject to the broader constituents governing us,” he said.
Calling Justice Chelameswar as the ‘Sanyasi’ in the court, former Chief Justice of India Justice M N Venkatachalaiah said “justice, truth and courage are the companions of his soul. It is impossible to assess the dimensions of his personality.
The Supreme Court today said the Constitution provided restrictions on legislative powers of the Union Territory of Delhi amid claims of the AAP government that Parliament’s power to override legislative authority of the states was an “emergency” power.
A five-judge Constitution bench headed by Chief Justice Dipak Misra, which is hearing pleas on who enjoys supremacy in governing the national capital, referred to Article 239AA and said though the Delhi Assembly has the power to legislate on certain subjects under state and concurrent lists while Parliament also has the power to legislate with respect to “any matter” of the Union Territory of Delhi.
“There are restrictions on the power of the Delhi Assembly to legislate,” the bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said.
Senior advocates Rajeev Dhavan, appearing for the Arvind Kejriwal government, said Parliament has the power to override Delhi Assembly, but this is the “emergency legislative power”.
Unlike UTs like Puducherry, Delhi has been given powers by the Constitution and its powers are not a “gift from Parliament”, he said, adding that the constitutional provisions provided that the Delhi assembly “shall have the power to make laws on some subjects under state list and on all subjects under the concurrent list”.
The senior lawyer referred to other constitutional schemes and said that if there was no exclusivity attached to a subject, Parliament would have the power to make laws and if a subject fell under the exclusive domain of the states, the Union government could not the have the legislative powers.
The bench said that with regard to Delhi’s legislative powers, the state and concurrent lists have been merged into one where the state and Union both have legislative powers.
“Does it not mean that more powers have been conferred on Parliament,” the bench asked.
Parliament has been given overriding powers under Article 239AA so that it was not “helpless if the state Assembly passes a ridiculous law”, Dhavan said.
He said that Delhi has a “responsible government” and not a “representative government” like Puducherry as it derived power from the Constitution.
On the issue of limitations on Delhi’s legislative and executive powers, the senior lawyer said that there were restrictions on powers of the Centre and states as well and “the question is are these limitations are so wide? The answer is no”.
He then referred to powers conferred on Panchayats and said, “If a government has to act purely on the basis of law then a government cannot govern…executive power rides with the legislative power.”
Every executive function and power cannot be provided in law, he said, adding that the elected chief minister has executive powers.
The bench said the issue was on a narrow compass as to what could happen in case of difference of opinion between the lieutenant governor and the chief minister and the council of ministers.
It also said that as far as the legislative arena was concerned there was no dispute on the powers of the Centre and Delhi government.
Dhavan said, “The court will have to decide who (Delhi or the Centre) has the primary executive powers.”
The arguments remained inconclusive and would resume on November 21.
Earlier, the apex court had raised a question whether the constitutional scheme on division of executive powers between the Centre and the states can be made applicable to the Union Territory of Delhi.
The Delhi government had accused the LG of making a “mockery of democracy” and said that he was either taking decisions of an elected government or substituting them without having any power.
The court is hearing a batch of appeals filed by the AAP government challenging the Delhi High Court verdict holding that the LG was the administrative head of the national capital.
A bench of Chief Justice J S Khehar and Justice D Y Chandrachud said when the matter deals with public at large, it becomes a constitutional issue.
“We are referring the matter to a five-judge Constitution bench. It is an issue which concerns the larger issue of privacy and Article 21 of the Constitution. When it concerns the public at large, it becomes a constitutional issue,” it said.
Senior advocate Kapil Sibal, appearing for one of the parties, said they have succeeded in the Delhi High Court and it was purely a contractual issue which does not need hearing by a Constitution bench.
“You should raise the issue before the Constitution bench on April 18 and formulate the issues for hearing,” the judges said.
The appeal filed in the apex court by Karmanya Singh Sareen and Shreya Sethi assailed the high court verdict on the ground that no relief was granted for data shared by users post September 25, 2016 and it amounted to infringement of fundamental rights under Article 19 (Freedom of Speech and Expression) and 21 (Right to Life) of the Constitution.
The counsel appearing for the petitioner said that a new WhatsApp policy which enabled it to the share user’s information with social networking site Facebook, not only hampers privacy under Article 21 but also the freedom of speech under Article 19 of the Constitution.
The apex court had earlier indicated that the issue might come up for hearing before a Constitution bench during the summer vacation which commences from May 11.
On January 16, the court had sought response from the Centre and telecom regulator TRAI on a plea that privacy of over 157 million Indians has been infringed by social networking sites — WhatsApp and Facebook — for alleged commercial use of personal communication.
The high court, in its verdict in September last year, had directed WhatsApp to delete the information/data of persons who opted out of the service before September 25, 2016 and not to share it with Facebook or its group companies.
The high court had also directed the Centre and the TRAI to examine the feasibility of bringing the functioning of Internet messaging applications like WhatsApp under statutory regulatory framework.
WhatsApp had earlier informed the high court that when a user account is deleted, the information of that person is no longer retained on its servers.
Repromulgation of ordinances is a “fraud” on the Constitution and a sub-version of democratic legislative processes, especially when the government persistently avoids the placing the ordinances before the legislature, the Supreme Court today ruled.
A seven-judge Constitution bench, by a majority of 6:1, held that repromulgation is constitutionally “impermissible” and “defeats constitutional scheme” under which a limited power to frame ordinances has been conferred upon the President and the Governors.
Justice D Y Chandrachud, who wrote the majority verdict on behalf of Justices S A Bobde, A K Goel, U U Lalit and L Nageswara Rao, said, “The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process.”
“Repromulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes,” Justice Chandrachud said.
Chief Justice T S Thakur, who wrote a concurrent but separate judgement, said that “repeated repromulgation of the ordinances was a fraud on the Constitution especially when the government of the time appears to have persistently avoided the placement of the ordinances before the legislature”.
The lone dissenting judge, Justice M B Lokur, was of the opinion that the repromulgation of an ordinance by the Governor of a state is not per se a fraud on the Constitution.
“There could be exigencies requiring the repromulgation of an ordinance. However, repromulgation of an ordinance ought not to be a mechanical exercise and a responsibility rests on the Governor to be satisfied that ‘circumstances exist which render it necessary for him to take immediate action’ for promulgating or repromulgating an ordinance,” he said.
The verdict came on a plea against a series of ordinances issued by the Bihar Governor between 1989 and 1992 regarding the taking over of 429 private Sanskrit schools by the state.
“We hold and declare that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power,” the verdict penned by Justice Chandrachud said.
The judgements of the Constitution bench of Supreme Court since its inception have been compiled in two volumes by a senior lawyer, who says the apex court was now playing the role of an appellate adjudicator more than its primary role of being a constitutional arbiter.
“Nobody has dealt with all the constitutional bench judgements of the supreme court in past 66 years,” claimed the author and senior advocate Govind Goel.
“Constitutional bench verdicts in the Supreme Court are now an endangered species and the court has embraced the role of an appellate adjudicator more than its traditional and primary role of being a constitutional arbiter or as perennial source of authoritative law of comparitively greater longevity,” he said here.
The ‘Statement of Indian Law’ deals with the evolution of law in India through constitution bench judgements since the inception of Supreme Court.
“The first volume under the head of constitutional law itself has been categorised into seven broad areas– from fundamental rights as also issues pertaining to all the constitutional organs and a large omnibus residue of other constitutional issues,” Goel said.
The second volume deals with evolution of law by Supreme Court benches of five or more judges in respect of non-constitutional and residual issues, such as administrative law, laws relating to services under the state, industrial laws and law of taxation, he said.
Total of 2294 judgements have been covered in the two volumes, including the famous verdicts of National Judicial Appointment Commissions (NJAC) and Keshvanand Bharti.
Chief Justice of India T S Thakur in the foreword of the book said “Goel’s book sums up an array of judgments of the constitution benches of Supreme Court right from inception and comes as a much needed and long awaited publication for the bench, the bar and the students of law alike.”
Former Chief Justice of India M N Venkatachalliah said “the work is a tribute to the sterling contribution of the apex court to the process of transformation of a feudal social order into a modern, egalitarian industry society, a transformation that could, but for the inspiring role of the court as an agent of change, become painful and violent as witnessed in other parts of the world.”
Noted legal luminary N R Madhava Menon said that it was an unusual book which one would not find in the market shelves. “It deals with the evolution of law through constitution bench judgements and will be very useful to researchers, accademicians, lawyers and experts,” he said.
Founding director of Chandigarh Judicial Academy Virender Kumar said Goel’s work essentially contains compiled, annotated, chronologically classified Constitution Bench decisions of the apex court since inception.
Two petitions have been filed in Bombay High Court seeking liberty to people who practise “atheism” to take oath in the name of Constitution in the courts, instead of swearing in the name of God.
Currently, as per Oath Act, 1969, a witness or any person who deposes in the court, can swear in the name of God or by placing hands on a religious book.
In a PIL, a Pune-based couple, Sunil Mane and his wife Laxmikanta, cited a couple of cases in Maharashtra at Bhivandi Magistrate Court and Pune District Court wherein senior government officials have told the court that they do not believe in God and expressed their willingness to take oath in the name of Constitution but unfortunately they have not been permitted, the PIL said.
In another petition, an officer of Bhiwandi Municipal Corporation has made a similar plea.
Both the petitions are slated to come up for hearing in due course, High Court sources said.
“The Oaths Act, 1969, needs to be declared as violative of Articles 14, 19 and 21 of the Constitution,” the Pune-based couple said in the PIL.
They urged the court to issue directions to the Union and state governments that persons who are not willing to take oath in the name of God or by putting their hands on any religious book should be allowed to take oath in the name of Indian Constitution.
“People who are not believers of God but have full faith in the Indian Constitution are getting denial during judicial proceedings at various levels in Maharashtra when they request that they be administered oath in the name of Indian Constitution,” the PIL said.
“It is high time to make the oath system suitable to democracy and in accordance with the spirit of Indian Constitution,” the PIL states.
Advocate Asim Sarode, through whom the PIL has been filed, said, “People, who are non-believers of God, are not allowed to swear in the name of Indian Constitution or placing hands on the rule book.”
He said that a person of any religion would not have objection to taking oath in the name of Constitution as it is his or her duty to abide by the Constitution.
“This will help avoid flaring of communal thoughts and feelings and it will also not create problems for people who are atheists,” Sarode added.
Hours after the Government suffered a blow on the National Judicial Appointments Commission (NJAC) Act, Attorney General Mukul Rohatgi said the collegium system, which became re-operational with today’s Supreme Court verdict, is not found in the Constitution and is not appropriate as it is an “opaque” system.
However, Rohatgi ruled out the option of seeking review in the matter saying, “I don’t think it is a case for review at all as the verdict is detailed and runs into over a thousand pages.”
Though the Attorney General denied any confrontation between the government and the judiciary over the issue of appointment of judges to higher judiciary, he was of the view that the appointments would not be fully transparent.
“Appointments will continue to be made in an opaque system where all stakeholders will not have a voice. The collegium system is not found in the Constitution and according to me, the system is not appropriate,” he said.
“Whether collegium system will be changed or not is in the wisdom of the court. But if it needs to be improved, it means it wasn’t correct in the first place,” he said while responding to the question that the five-judge bench has posted the matter for further hearing inviting suggestions on improving the collegium system.
On being asked whether the verdict was a blow to the Centre, Rohatgi said the law was approved by Parliament and not just by the ruling party.
“This law was not of the Centre. It was made by the Parliament and approved by all parties,” the AG said, adding that it is for the government and Parliament to decide if they wish to put another amendment “after removing defects from this amendment.
The Bombay High Court has held that an accused does not have an inherent right of appeal against his conviction and the same has to be conferred by a statute.
Justice Abhay Oka and Justice Sadhana Jadhav observed that the legislature can confer the said right or can make available the said right conditionally. It (legislature) may withdraw the said right by amending the statute which confers the right of appeal
The judges gave the ruling on a petition challenging a provision in Criminal Procedure Code (CrPc), which restricts the right to appeal in small cases in which the punishment is less than the stipulated period of imprisonment or amount of fine.
The petition, filed by three convicts, sought a direction from the High Court to declare 376 (b) and (c) of CrPc as unconstitutional and ultravires the Constitution as it takes away the right to appeal.
It also prayed for quashing an order of a sessions court which ruled that such an appeal was not maintainable in view of clause 376 (b).
Two petitioners were asked to suffer imprisonment for a day until the rising of the court in a cheque bouncing case, while all the three were ordered to pay compensation of Rs 15 lakh to the complainant within three months.
They filed an appeal in a sessions court which rejected it in view of clause (b) of 376. Against this, they filed a petition in the High Court.
The judges observed that there is no inherent right of appeal. If statute creates a right of appeal against an order of conviction, any Act which prevents an accused from preferring an Appeal may be in violation of Article 21 of the Constitution.
But a legislation cannot be struck down on the ground that there is a violation of Article 21 as a result of failure to provide for an Appeal against a conviction.
Thus, there is no merit in the prayer that clauses (b) and (c) of 376 of CrPC are illegal, the judges said while upholding their validity and legality.
The petitioners argued that the right to appeal against an order of conviction is conferred by Section 374 of CrPc. They, however, said by virtue of section 376, the said right is curtailed and by the said provision, unreasonable, arbitrary and discriminative conditions have been imposed based only on territorial jurisdiction of a court.
Their counsel Ashutosh Kumbhkoni submitted that the right to appeal is made restricted or conditional on whether the magistrate, who passed the order of conviction was presiding over a court in a metropolitan city or not.
He argued that such distinction made for taking away right of appeal in case of certain orders of conviction passed by a metropolitan magistrate was unconstitutional.
Kumbhkoni said by virtue of section 376(b), the right of an appeal against orders passed by metropolitan magistrate of imposing a sentence of imprisonment for a term not exceeding three months or of fine not exceeding Rs 200 or both such imprisonment and fine, has been taken away.
He urged that such discrimination and restriction brought about by the impugned provision is violative of the Petitioners’ fundamental rights under the Constitution. If a right to appeal is available to a citizen convicted in a non metropolitan area, then same right by law, must be made available to a citizen in a metropolitan area also, he argued.
Kumbhkoni submitted that several other consequences follow from a conviction. Not only that the person’s liberty taken away, but the conviction renders a stigma on the convict. He submitted that the right to life under Article 21 of the Constitution is wide enough to cover the right of a convict to file an Appeal against an order of conviction.
The petitioners submitted that the right to file an appeal against an order of conviction is a fundamental right guaranteed under the Constitution. Such right is inherent in Article 21 and cannot be taken away or conditioned or in any manner scuttled or impaired by any provision of law.
Additional Solicitor General Darius Khambata argued that there is no vested right of an Appeal and a right of Appeal is always created by a statute. He said it is for the Legislature to decide whether right to Appeal should be conditional or unconditional.
On Thursday morning to the Bigg Boss home Angry Dalits from different parts of the state marched demanding eviction of one of its inmates, cartoonist Aseem Trivedi, a Republican Party of India (RPI) member said. “About 5,000 marchers, led by RPI chief Ramdas Athavale, have gathered here from Mumbai, Thane, Pune, Nashik and other parts.” party spokesperson Mayur Borkar also said. “Last week, Athavale had raised objections to Colors TV channel including Trivedi in its reality show, Bigg Boss, as he had committed insults to various symbols of India and denigrated the constitution.
He had given one week’s time to the TV channel to evict him or face action.”
Since the channel failed to remove him, the RPI led a march Thursday to seek his eviction from the Bigg Boss house, being shot in a bungalow in the hill town of Lonavala, about 100 km from Mumbai.
Bigg Boss is a reality show where contestants are locked inside the house for 98 days, away from the comforts of their everyday lives, and without any communication with the outside world. They have 70 cameras prying on their activities 24×7.
Borkar told that Trivedi had been unknown till he targeted various Indian symbols like the tricolour, the Ashok Chakra, parliament and the constitution.
“While the Maharashtra government may have let him off, he is still unanswerable to us as he has denigrated the constitution of India, penned by the great Dalit leader, Babasaheb Ambedkar”
Two months ago, Trivedi hogged the limelight after the Maharashtra government slapped sedition charges on him for sketching obscene cartoons denigrating Indian constitution and other symbols, during last year’s Anna Hazare-led anti-corruption crusade in Mumbai. Trivedi was thrown in jail but after a public outcry, was released. The sedition charges against him were quietly dropped.