No need to clarify liquor ban order: SC

No need to clarify liquor ban order: SC
No need to clarify liquor ban order: SC

The Supreme Court today said that there was no need to further clarify its order on prohibiting liquor vends within 500 metre of the national and state highways across the country.

Recently, the apex court has modified its order and allowed the sale of liquor within 500 metre alongside highways in some hilly areas and in Chandigarh, where the highways near the city have been denotified.

“Our Chandigarh order says everything. If states do not understand it, there is nothing we can do,” a bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud said when senior advocate Arvind Datar mentioned the matter and sought clarification.

The notification or denotification of highways was a policy matter and the court would not interfere in it, the bench said.

Earlier, the apex court had dismissed a plea challenging the Chandigarh administration’s decision to allow the sale of liquor by denotifying highways as district roads.

The court had observed that there was slow-moving traffic near cities and the idea behind its verdict, banning the liquor vends, was to ensure that nobody drives fast on highways.

The court, meanwhile, refused the plea for urgent hearing of review petitions, filed by liquor shop, bars and restaurant owners, challenging the verdict in an open court.

In December, the apex court had banned the sale of liquor within 500 metre of national and state highways, except in Meghalaya and Sikkim.

In July, Arunachal Pradesh and Andaman and Nicobar Islands were also exempted from the ban.

Later, some areas in Uttarkhand and other hill states were also exempted from the ban order.

( Source – PTI )

Centre seeks dismissal of pleas on Judges’ appointment

Centre seeks dismissal of pleas on Judges' appointment
Centre seeks dismissal of pleas on Judges’ appointment

Government today sought the dismissal of a batch of petitions on judicial reforms, including appointments of judges in High Courts and Supreme Court, saying there should not be parallel proceedings when the matter is being dealt in the administrative side.

A bench comprising Chief Justice J S Khehar and Justice N V Ramana said the matters have come up before it for the first time and the court would consider them after one month.

Attorney General Mukul Rohatgi, appearing for the Centre, said the matters are being dealt at the administrative side and they should not be taken up on the judicial side.

He said the Memorandum of Procedure for appointment of judges have not been finalised in the last six months.

Rohatgi also said the government has been filing status reports as sought by the SC at different points of time.

The apex court then deferred the hearing on several petitions on the issues for a month.

( Source – PTI )

Justice J S Khehar appointed next CJI

Justice J S Khehar appointed next CJI
Justice J S Khehar appointed next CJI

Justice Jagdish Singh Khehar, who led the five-judge constitution bench in the Supreme Court which had struck down the controversial NJAC Act for appointment of judges, was today appointed as the next Chief Justice of India.

Sources in the government said President Pranab Mukherjee has cleared his name and the notification is being issued shortly.

A copy of the notification will be formally handed over to Justice Khehar by a senior Justice Department official tomorrow morning, the sources said.

He will be the 44th Chief Justice of India.

CJI T S Thakur had earlier this month recommended the name of Justice Khehar, the senior-most judge of the Supreme Court, to be his successor.

He will take oath of office on January 4.

Justice Khehar, 64, will be the first Chief Justice from the Sikh community. CJI Thakur demits office on January 3.

Justice Khehar will hold the tenure for over seven months till August 27 next.

Besides heading the bench in NJAC matter, Justice Khehar has also headed a bench which had set aside the imposition of President’s rule in Arunachal Pradesh in January.

He was a part of the bench which sent Sahara chief Subrata Roy to jail while hearing the matter relating to the refund of money invested by people in his two companies.

Justice Khehar also headed a bench which recently gave a significant verdict holding that the principal of ‘equal pay for equal work’ has to be made applicable to those engaged as daily wagers, casual and contractual employees who perform the same duties as the regulars.

While the turf war between the judiciary and the executive over the appointment of judges for higher judiciary has intensified, Justice Khehar on the occasion of Constitution Day on November 26 had responded to the tirade from Attorney General Mukul Rohatgi by saying the judiciary was working within its “lakshmanrekha”.

“Judiciary is mandated to shield all persons, citizens and non-citizens alike, against discrimination and abuse of State power. Liberty, equality and dignity of citizen have flourished substantially in India due to the pro-active role of judiciary in the country,” he had said.

( Source – PTI )

Justice J S Khehar to be the 44th CJI

Justice J S Khehar to be the 44th CJI
Justice J S Khehar to be the 44th CJI

Justice Jagdish Singh Khehar, who led the five-judge constitution bench in the Supreme Court which had struck down the controversial NJAC Act for appointment of judges, was today recommended as the 44th Chief Justice of India.

Chief Justice of India T S Thakur today wrote a letter recommending the name of Justice Khehar, who is the senior most judge of the Supreme Court to be his successor.

Justice Khehar, 64, will be the first Chief Justice from the Sikh community and he will succeed CJI Thakur who will be demitting office on January 3, 2017.

Justice Khehar, who will be sworn in on January 4, will hold the tenure for over seven months till August 27, 2017.

Besides heading the bench in NJAC matter, Justice Khehar has also headed a bench which had set aside the imposition of President’s Rule in Arunachal Pradesh in January this year.

He was also a part of the bench which sent Sahara chief Subrata Roy to jail while hearing the matter relating to the refund of money invested by people in his two companies.

Justice Khehar also headed a bench which recently gave a significant verdict holding that the principal of ‘equal pay for equal work’ has to be made applicable to those engaged as daily wagers, casual and contractual employees who perform the same duties as the regulars.

While the turf war between the judiciary and the executive over the appointment of judges for higher judiciary has intensified, Justice Khehar on the occasion of Constitution Day on November 26 had responded to the tirade from Attorney General Mukul Rohatgi by saying that the judiciary was working within its “lakshmanrekha”.

“Judiciary is mandated to shield all persons, citizens and non-citizens alike, against discrimination and abuse of State power. Liberty, equality and dignity of citizen have flourished substantially in India due to the pro-active role of judiciary in the country,” he had said.

( Source – PTI )

Equal pay for equal work applicable to temporary staffers: SC

In a significant verdict, the Supreme Court has held that the principle of ‘equal pay for equal work’ has to be made applicable to those engaged equal-pay-for-equal-workas daily wagers, casual and contractual employees who perform the same duties as the regulars.

Terming the denial of equal pay for equal work as “exploitative enslavement”, “oppressive, suppresive” and “coercive”, the apex court said that in a welfare state, the principle has to be extended to temporary employees as well.

“In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity,” a bench of Justice J S Khehar and S A Bobde said.

The bench said, “Anyone, who is compelled to work at a lesser wage, does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth and at the cost of his integrity”.

“For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages, as compared to others similarly situated, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation,” it said.

Citing Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966, to which India is a signatory and had ratified it on April 10, 1979, the apex court said, “There is no escape from the above obligation”.

It said in view of different constitutional provisions and the law declared by the Court under Article 141 of the Constitution, the principle of ‘equal pay for equal work’ constitutes “a clear and unambiguous right and is vested in every employee, whether engaged on regular or temporary basis”.

The verdict came as some temporary employees of Punjab government approached the apex court after Punjab and Haryana High Court held that temporary employees were not entitled to the minimum of the regular pay-scale, merely for the reason that activities carried on by them and the regular employees were similar.

The apex court directed the Punjab government to pay the petitioners the minimum of the pay-scale (at the lowest grade, in the regular pay-scale), extended to the regular employees holding the same post.

The petitioners were daily wagers working as Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars.

The court said there is no room for any doubt that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as those being discharged by regular employees.

Supreme Court dismisses Vijay Mallya’s plea in FERA violation case

Supreme Court dismisses Vijay Mallya's plea in FERA violation case
Supreme Court dismisses Vijay Mallya’s plea in FERA violation case

The Supreme Court today dismissed liquor baron Vijay Mallya’s plea seeking quashing of criminal proceedings against him in a case pertaining to violation of foreign exchange rules.

A bench headed by Justice J S Khehar also imposed Rs 10 lakh as costs on Mallya in the case.

Earlier, the apex court had issued notice to the Enforcement Directorate (ED) on the UB Group chief’s plea against the Delhi High Court order turning down his appeal for quashing criminal proceedings in a trial court for alleged “wilful” disobedience of summons issued to him by the ED.

The ED had alleged that Mallya violated the provisions of Foreign Exchange Regulation Act (FERA) in arranging funds to advertise his liquor products abroad over a decade ago.

The agency wanted to question Mallya in connection with a contract signed in December 1995 with London-based firm Benetton Formula Ltd for promotion of the Kingfisher brand abroad.

Mallya had allegedly paid 200,000 dollars to the British firm for displaying the Kingfisher logo in Formula One World Championships in London and some European countries in 1996, 1997 and 1998.

The money was allegedly paid without prior approval from the RBI in violation FERA norms.

Judiciary independence doesn’t necessarily require collegium system

BJP-ruled states today strongly supported in the Supreme Court the creation of the National Judicial Appointments Commission (NJAC) saying that the independence of judiciary does not necessarily require that judges be appointed by the collegium system.

Senior advocate T R Andhyarujina, appearing for Maharashtra, told a five-judge bench headed by collegium systemthat the independence of judiciary does not necessarily require that the judges be appointed by the collegium system.

“In no country of the world, judges are appointed by collegium/judiciary. Instead it is done by the executive in consultation with judges”, he told the bench which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.
Besides Maharashtra, the counsel for BJP-ruled states, Rajasthan, Chhattishgarh, Jharkhand and Gujarat, also advanced arguments in favour of the NJAC and enabling 99th Constitutional amendment.

At the outset, Andhyarujina    said that the collegium system has “obvious problems”, which were “lack of transparency” due to the “secretive method” of appointing judges, “lack of accountability” and “lack of diversity”.

He said the basic question was whether there was a disruption of the basic structure of the Constitution and independence of judiciary by the NJAC.

The lawyer for Maharashtra said that “there is not a word” in the Constitution that the collegium system is a part of its basic structure or that it is the only method of appointing judges.

“The character of a judge and his independence does not follow from the method of his appointment and a judge is independent because of his oath and character,” he said, adding that the independence of judiciary was not a result of the method of its appointment.

He also gave instances, like that of Justice V R Krishna Iyer, where judges decided cases without any “fear” or “favour”.

“There is no basis that independence of judiciary can be secured only by appointment of judges by judges or by according primacy to their opinion,” he further said.

The bench asked Andhyarujina whether there was a constitution in the world where the independence of judiciary is as “sacrosanct” as in India.

Independence of judiciary is there but the “method of appointment was not the prescription”, he responded.

He also referred the Constituent assembly debates and quoted B R Ambedkar’s views on the issue and said that the architect of the Constitution had termed handing over primacy to CJI, on appointment of judges, as a “dangerous proposition”.

To this, the court said that Ambedkar was also against giving primacy to the President or the union government on the issue.

Attorney General Mukul Rohatgi in response clarified that the Constitution makers’ intention was to have a mix of power instead of vesting it in any one of the three organs of the State – executive, legislature and judiciary.

Andhyarujina said that there was no accountability or transparency in collegium system as it functions in secret and its working is not open to public view.

“In NJAC, there is total accountability and transparency,” he said.

To this, the bench said the Parliament should have laid down a law that working of the collegium has to be open to the public.

Andhyarujina also said that under the NJAC diversity in appointments made to higher judiciary was possible, as this factor was missing presently as there were few judges who were women, SC/ST or belonging to some other minority group.

The state of Jharkhand said “there was no participation of the Supreme Court” in a judge’s removal or impeachment, which does affect independence of judiciary, thus, it cannot have primacy in their appointment.

The bench, however, countered that the apex court is involved in the process as it carries out the enquiry to see whether a judge needs to be removed, after a complaint against him was received.

The Supreme Court Bar Association (SCBA), which has intervened in the matter, told the bench that if the petitions challenging the 99th amendment to the Constitution and the NJAC were allowed, it would amount to “whittling down” the power of Parliament to amend the Constitution.

The state of Chhattisgarh in its arguments said that while NJAC would provide a balance between the three organs, the judiciary was trying to exert primacy (by the collegium system.

The state of Jharkhand also said that in the NJAC, primacy of judiciary would be protected as of the six members of the commission, three would be senior judges of SC including the CJI, one would be the law minister and the other two “eminent persons” would be nominated by a panel of the prime minister, leader of the opposition and the CJI.

It said that while the judiciary may not have primacy in appointment, it would have primacy in blocking an “undeserving” candidate as only two members were required for that.

“So there is no question of an undeserving candidate being bought in. Therefore, primacy of judiciary is maintained under NJAC along with diversity,” the counsel for Jharkhand said.

Additional Solicitor General Tushar Mehta, appearing for Gujarat, said that the inclusion of two eminent persons in the NJAC is the will of the nation.

“The presence of two ’eminent persons’ in the Commission reflects the unanimous will of the nation and it can never affect the independence of the judiciary. The provision is made to ensure that the appointing body is broad-based and there is a transparency and an accountability in the matter of judicial appointments,” he said.

Senior advocate K Parasaran, appearing for Rajasthan, favoured the NJAC by calling it an “ideal mix” of judiciary, executive and the common public.

“Give it (NJAC) a try and see how it functions. It is better to do the trial and error than error and trial,” he said, adding that in the new system merit will also be considered with seniority.

Senior advocate and SCBA President Dushyant Dave did not support the Centre’s contention that the collegium system cannot be revived even if the court quashes NJAC Act.

At the fag end of the day, Dave started advancing arguments in favour of the NJAC and criticised the collegium system of judges appointing judges.

“I regret with all humility at my command that the majority judgement of the nine-judge bench in 1993 was singularly silent on the constituent assembly debates on the issue,” Dave said.

Dave, however, did not support the Centre’s contention that the collegium system cannot be revived if the court quashes the NJAC Act.

The plenary power of Parliament to amend law cannot be questioned, he said adding that the philosophy behind it was that present generation cannot bind the future generation.

CJI refuses to be part of panel to select NJAC members : SC

dattuIn a new twist, Chief Justice of India H L Dattu has refused to participate in a three-member panel for selecting two eminent persons in the six-member National Judicial Appointments Commission (NJAC) on whose validity a constitution bench began hearings today.

The five-judge constitution bench, headed by Justice J S Khehar, which is hearing the issue of constitutional validity of the new law on appointment of judges to higher judiciary, was told by Attorney General Mukul Rohatgi that Dattu has written to Prime Minister Narendra Modi that he would not participate in the meeting of the panel till the matter is decided by the apex court.

The three-member panel comprises Chief Justice of India, Prime Minister and the Leader of Opposition, who are authorised to select and appoint two eminent persons in the six-member NJAC for appointment of judges to higher judiciary.

When it was brought to the notice of the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, it heard the views of various senior advocates on how to proceed with the matter taking into account that in the immediate future there would be the eventuality of appointment of existing additional judges of the high courts whose tenures are coming to an end.After taking note of their views, the judges retired to their chambers and assembled after 15 minutes.

Justice Khehar said that the bench has decided to continue with the hearing on the merits of the case and if needed it will pass an interim order.

“A consensus has emerged that we will continue with the merits of the case and when it is necessary we will pass an interim order,” the bench said.

The AG submitted that it is mandatory for the CJI to be the part of the panel in selection and appointment of eminent persons in the six-member commission.He said a direction should be passed for the CJI to participate in the meeting.

However, his view was not shared by senior advocate Fali S Nariman, who is appearing for Supreme Court Advocates on Record Association (SCAORA), said that if the CJI is not participating, the bench can direct others to meet and participate.

The apex court also sought the view of senior advocate Ram Jethmalani, who said, that the bench has to see if prima facie, a case for staying the operation of NJAC Act is made out or not.
However, senior advocate Harish Salve, appearing for Haryana government and supporting the new law, submitted that the bench can continue with the hearing as the question of additional judges of high courts will arise only on May 20 and in the meantime if the hearing goes on the judges will get the grasp of what is going to be the prima facie view.
Salve further said that the bench has to, on one hand, consider the sensitivity of the head of the judicial family that is the CJI, and the will of the Parliament which led to the constitution of the NJAC, on the other.
He also said let the matter be heard for seven-eight days and then a view can be taken on the entire issue.
“Today we are at the very initial stage,” Salve said, adding that staying the amendment at this stage will not be the right thing to do.
On April 23, the apex court had said that NJAC will only deal with appointment of existing additional judges of High Courts, whose tenures are ending during pendency of the controversy, after it was assured by the AG that commission will not appoint judges to the higher judiciary and will move the court in such an eventuality.
Earlier, the bench had asked Rohatgi to take instruction from competent authority about the additional judges in high courts whose tenure is coming to an end in the immediate future when the matter will be pending before the court.
The AG had said that barring four-five cases, all recommendations of erstwhile collegium have been accepted.
On the issue of re-appointment or extension of additional HC judges, Rohatgi had said that tenures of two or three judges of Assam High Court, seven to eight in the Bombay High Court are ending in June and hence, the issue be “kept open” till May 11 as the NJAC is likely to be constituted by May 4.
The process to appoint two eminent persons in the six- member NJAC “will commence shortly” and the panel is “likely to commence working on May 4”, he had said.
The bench had said that the NJAC Act has to implemented as it has neither been stayed nor set aside.
Rohatgi had refuted the submission of Nariman that two eminent citizens, who would become part of the NJAC, will be embarrassed if the Act is set aside and said that they would be knowing that a litigation is pending.

Justice Khehar to head the Constitution bench

Justice J S KheharSetting at rest issues, the Supreme Court on Wednesday cleared the decks for commencing the hearing on the validity of the new law on appointment of judges with a Constitution Bench rejecting demands for recusal of judges.

“Justice J S Khehar will not recuse himself from hearing,” Justice J Chelameswar said on behalf of the five-judge bench which overruled the objection on Justice Khehar heading the bench. Justice Chelameswar said the reasons for the non-recusal of Justice Khehar will be delivered later.

The bench, also comprising Justices Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, besides Justices Khehar and Chelameswar, said it will commence the hearing on April 27 to examine the validity of the new law–National Judicial Appointments Commission Act–which has been notified. It replaces the two-decade-old collegium system of appointment of judges to the higher judiciary. The court issued notices to the Centre, all state governments and union territories asking them to be ready with the matter which “purely involves the questions of law”.

The bench also asked Attorney General Mukul Rohatgi to take instruction from competent authority about the judges, particularly about additional judges in high courts whose tenure is coming to an end in the immediate future when the matter will be pending before the court. It said it will hear the matter tomorrow and after knowing the stand of the Centre. It will pass an interim order as this is a matter of concern and their fate cannot be kept in limbo.

Justice Khehar made it clear that the bench headed by him would like to complete the hearing and dispose of the matter in a particular time frame. 14 working days, starting from Monday onwards, would be sufficient to conclude the arguments and if required a day or two will be used during the summer vacation, he said.

A consensus was evolved that the petition filed by the Supreme Court Advocates on Record Association (SCAORA), in which senior advocate Fali S Nariman is appearing, will be the lead case among the batch of petitions challenging the validity of Constitution (99th amendment) Act 2014 and the NJAC Act, 2014, which pushes out the two-decade old collegium system of appointment of judges by the judges.

 

MP HC judge be divested of administrative and supervisory role: SC

The Supreme Court today asked the Chief Justice of Madhya Pradesh High Court to divest one of his colleagues, accused of sexually harassing a former woman Additional District and Sessions Judge (ADSJ), from undertaking all administrative and supervisory functions.
A bench headed by Justice J S Khehar also held that the Chief Justice of the MP High Court travelled beyond his jurisdiction by constituting a two-judge committee to look into the allegations of the woman subordinate judge.

“The Chief Justice of Madhya Pradesh High Court, in the present case, travelled beyond the jurisdiction. The two-judge committee should have been formed at the second stage of investigation,” it said.

The bench also said that the second stage of in-house inquiry proceedings have to be commenced by the Chief Justice of India.

It said that “to ensure the fair and just inquiry, it is imperative to divest respondent number 3 (the judge concerned)” of supervisory and administrative functions.

The apex court said that the Chief Justice of India may re-initiate the in-house proceedings or may ask the Chief Justice of other high court to do the same.

Earlier, the apex court had restrained the media from covering the proceedings in the case. It, however, had said that the judgement can be reported.

The Supreme Court had on August 29 stayed an August 8 order of the Chief Justice of Madhya Pradesh High Court setting up a judicial panel to probe the allegations levelled by the former woman judge.

The former Gwalior judge, who had resigned alleging sexual harassment by the HC judge, had moved the apex court raising questions over the judicial panel to look into her complaint.

In her plea, she had said that her resignation is a “constructive termination” and she be reinstated with all consequential benefits.

She had said the HC order of August 8 constituting a judicial panel should be quashed as she felt it will not do justice to her. She had earlier also raised objections to the inclusion of an MP High Court judge in the committee set up to go into her complaint.

She had said the judge, who had harassed her sexually, was still discharging judicial and administrative functions over the staff who were working with her and have witnessed her victimisation.

The Gwalior judge had also objected to the summons being sent to her husband and daughter to be present at the inquiry.