28th APRIL 2016
GS II: POLITY – JUDICIARY
Who can question authority of the Speaker, asks SC
How can the Union Cabinet sitting in New Delhi determine that a Money Bill was not validly passed in the Uttarakhand Assembly and pave the way for imposing President’s rule in the State, the Supreme Court asked the Centre .
Hearing the Centre’s appeal against the Uttarakhand High Court judgment revoking President’s Rule, it extended its stay on the quashing of the Central rule. This means President’s Rule will continue in the State and the April 29 floor test in the Assembly ordered by the High Court will not take place.
“The million dollar question is when the Assembly Speaker said the Money Bill was passed on March 18, how did you say it was not,” Justice Dipak Misra asked the Centre.
The Centre, represented by Attorney-General Mukul Rohatgi, insisted that the non-passage of the Money Bill would have witnessed the State slipping into chaos. “But the Assembly records show that the Money Bill was passed on March 18. If so, who is the authority to question the Speaker? Nobody can question him,” Justice Shiva Kirti Singhobserved.
GS II: SECURITY-NCRB
Govt. to set up sex offenders registry
The NDA government is planning to set up a sex offenders registry in the country, on the lines of those maintained in western countries including the U.S. and the U.K.
Details of sexual offenders even below 18 years of age would be included in the database, which will be put up on the website of National Crime Records Bureau (NCRB), government informed the Rajya Sabha .
The government plans to publicise their photographs, addresses, PAN card details, Aadhaar card number, fingerprints and DNA samples through this registry.
The proposal to set up a registry was first mooted by the UPA government after the 2012 Nirbhaya gangrape case in Delhi.
“Draft guidelines on the proposal to set up Sex Offenders Registry in India are under preparation in consultation with relevant Ministries/organisations, before they are put out for wider consultation with the State governments and the public,” Union Minister of State for Home Kiren Rijiju said during the question hour. The proposal was at a “primary stage,” he added.
MoS (Home) Haribhai Parthibhai Chaudhury told The Hindu “the names and details of sexual offenders, both below and above 18 years of age would be put up only after they have been convicted and completed their sentence in jail. The details will not be included if the case are under trial and are in appeal in a higher court.”
It would be a handy tool for the law enforcement agencies as well.
“It will instil fear in the minds of repeat sexual offenders and the public would be benefited from it,” Mr. Chaudhury said.
This will be an online database of charge-sheeted sexual offenders in the entire country, which people can access through a Citizen Portal in the upcoming Crime and Criminal Tracking Network and Systems (CCTNS) project.
The United States has a similar website called the National Sex Offender Public Website.
Mr. Rijiju said in Rajya Sabha that the initial consultation draft includes the registration of individuals “convicted for offences like rape, voyeurism, stalking and aggravated sexual assault” and includes the possibility of registration of “offenders below and above 18 years.”
Replying to the supplementaries, Home Minister Rajnath Singh said “the Central government has issued these draft guidelines to check sexual harassment. They are still at a very primary stage. The draft guidelines, which have been readied have been sent to Ministries, including the Women and Child Development for suggestions. After this, public comments will be solicited.”
According to the draft guidelines proposed, extensive information on the offender will be collected.
This will include, inter-alia name and aliases, registration of primary or given name, nicknames, pseudonyms, telephone numbers, addresses including temporary lodging information, travel and immigration documents.
Besides, the information on offenders to be collected for the Registry include those related to their jobs, professional licences, information of school, college, institute with which they have been associated, vehicle information, date of birth, criminal history, current photograph, fingerprints and palm prints, DNA sample, driver’s licence, identification card, PAN card number, Aadhaar card number and Voter ID number.
GS II: BILATERAL-(INDIA-US)
‘Make in India’ not at cost of IPR: U.S.
The US Trade Representative’s annual Special 301 report, that identifies trade barriers to U.S. companies and products due to a foreign government’s intellectual property regime, has placed India on the Priority Watch List, the same as last year.
The report identified many measures taken by the government as encouraging in terms of providing a better IP protection regime, but raised multiple concerns, particularly related to the potential erosion in IP standards due to its push for promoting domestic manufacturing.
The report comes amid lingering disagreements between the two countries on many trade issues, in the context of India’s efforts to promote local manufacture. “The U.S remains concerned about actions and policies in India that appear to favour local manufacturing or Indian IPR owners,” according to the report.
“From movies and music to green technology and pharmaceuticals, U.S. creators and innovators have a significant competitive advantage in the area of intellectual property. We can’t afford to let countries on the Priority Watch List or Watch List write the rules for intellectual property – rules that are often discriminatory or that discourage creativity and innovation,” said U.S. Trade Representative Michael Froman.
The government of India does not engage with the process as it considers it an infringement on the country’s sovereignty.
Indian official sources pointed out that the categorisation is arbitrary and mostly a political decision, in order to reward or punish a target country.
“India has taken positive steps to address or avoid further erosions of the IPR regime. India’s courts retain their reputation for providing fair and deliberate treatment of both foreign and domestic litigants. However, at the same time, India has not taken the opportunity to address long-standing and systemic deficiencies in its IPR regime and has endorsed problematic policies,” according to the report. The report said India’s domestic policy goals of increasing investment and stimulating innovation must be “through, not at the expense of, IPR protection and enforcement.”
Welcoming the efforts undertaken by the government to promote IPR within India, the report said initiatives such as “Make in India” and “Start-up India” have linked the realization of development goals to IPR creation and protection. The report pegged losses from piracy of music and movies in India at approximately $4 billion per year and the commercial value of unlicensed software at $3 billion
“The U.S urges India to reject policies and practices that amount to barriers that adversely affect not only U.S. companies, but Indian companies as well.”
The USTR report said the U.S continues to monitor India’s application of its compulsory licensing law. “The United States requests clarity from the Government of India regarding the compulsory license decision-making process, as it affects U.S. stakeholders,” it said. It said India was the source of a lot of pirated and counterfeit goods reaching the U.S shores.
GS II: POLITY – JUDICIARY
Courts must cite reasons to back order on bail plea: HC
The Kerala High Court has ruled that lower courts while granting or refusing bail must state briefly reasons to support their decision.
Justice B. Sudheendra Kumar observed recently that it was mandatory that courts record the facts in brief, including the date of arrest/surrender of accused and also the rank of accused, if there were more than one accused in a crime.
The court while disposing of a bail petition pointed out that it was common that many magistrate courts while dealing with the bail applications under Section 437 of the Criminal Procedure Code failed to mention the facts in brief. Section 437(4) of the Cr. P.C. mandates that an officer or a court while releasing any person on bail under sub section (1) or (2) of 437 shall record in writing the reasons or special reasons for doing so. The Supreme Court also had held that courts were required to indicate the reasons for grant or refusal of bail to an accused. The court added that giving reasons were different from discussing the merits or demerits of the application. At the stage of granting bail, a detailed examination of all the materials and elaborate documentation of merits of the case should not be undertaken. However, while granting or refusing the bail, reasons for prima facie conclusion as to why the bail was granted or refused must be indicated in the order.
The court said that the reasons were always based on the facts of the case. Therefore, without mentioning the facts, no reasons could be recorded. This would mean that the reasons were interlinked with the facts of the case. The facts inter alia included the date of arrest/ surrender of the accused and the rank of the accused.
GS II: POLITY – JUDICIARY
Diffusing the judicial burden
The Supreme Court’s request to the Central government to consider the possibility of establishing a National Court of Appeal has elicited mixed reactions from the legal community. Bodies such as the Law Commission of India have given their considered opinion, and from these a solution must emerge.
The issue relates to access to justice, that is at the core of our constitutional values, and thus problems related to the issue have to be understood in their entirety and possible solutions must be deliberated upon and discussed by all stakeholders. The problem is essentially threefold.
The Supreme Court was meant to be a Constitutional Court. However, the sheer weight of its case backlog leaves the court with little time for its primal functions. In spite of recently accelerated rates of case disposal in the Supreme Court (in 2015 it disposed of 47,424 cases compared to 45,042 in 2014 and 40,189 in 2013), the backlog was still a staggering 59,468 cases as of February 2016.
A ‘substantial question’ of constitutional law has to be heard by five or more judges. According to a study by Nick Robinson titled “A Quantitative Analysis of the Indian Supreme Court’s workload”, in the 1960s it was common for the court to decide over 100 such cases a year. He points out that in the past decade, because of the unreasonable workload borne by the court, the average is now fewer than eight constitution benches a year. In effect, therefore, the functions of the Supreme Court as a Constitutional Court have been seriously impaired.
Ease of access
Geographical proximity to the court is definitely an aspect of access to justice. The fact that the Supreme Court sits only in New Delhi limits accessibility to litigants from south India. Mr. Robinson’s study reveals that of all the cases filed in the Supreme Court, the highest numbers are from high courts in the northern States: 12 per cent from Delhi, 8.9 per cent from Punjab and Haryana, 7 per cent from Uttarakhand, 4.3 per cent from Himachal Pradesh, etc. The lowest figures are from the southern high courts: Kerala 2.5 per cent, Andhra Pradesh 2.8 per cent, Karnataka 2.2 per cent and a mere 1.1 per cent from Madras High Court. There is therefore an urgent need to find a solution to such an inequitable state of affairs.
The Supreme Court, it must be acknowledged, has played its role as sentinel qui vive of the Constitution with aplomb. This does not, naturally, go down well with the other organs of the state and while their present proclivity to abide by the orders of the Supreme Court is creditable, it is but natural that attempts may be made to curtail the constitutional powers of the court. The problem of backlog may be a convenient handle for the other organs of the state to seek drastic curtailment of the court’s powers. Well-regarded leaders in stable democracies have attempted this in the past.
Franklin D. Roosevelt saw nothing amiss in using his presidential powers to attempt to ‘reorganise’ the American Supreme Court when it consistently dealt death blows to many of the legislations brought in under the rubric of the New Deal. The pendency of cases before the Supreme Court was at that time cited as the ostensible reason for the ‘reorganisation’ plans. In pursuance of the same, Senators William H. King and Warren Austin called upon Chief Justice Charles Evans Hughes to appear as a witness in the Senate hearing and to outline the court’s ability to deal with its docket. Chief Justice Hughes refused, and instead sent a note which ultimately played an important role in thwarting the President’s plan to reorganise the court.
An institution which on a daily basis hauls up several other bodies for defects and deficiencies must place itself well above criticism of any nature. It is only such an unassailable stature that can add to its effective functioning.
A reasoned solution
In considering the issues posed by the Supreme Court to it, the Central government has a rich repository of information which it must refer to in order to reach a well-reasoned decision. The 229th report of the Law Commission of India delved into this problem in depth and came up with the suggestion of retaining the New Delhi bench of the Supreme Court as a Constitutional Court and the establishment of Cassation Benches of the Supreme Court in the four regions at New Delhi, Chennai/Hyderabad, Kolkata and Mumbai. The 2009 report pointed out that since Article 130 of the Constitution provides that “the Supreme Court shall sit in Delhi or such other place or places as the Chief Justice of India may with the approval of the President, from time to time, appoint”, the creation of Cassation Benches of the Supreme Court would require no constitutional amendment. It also pointed out how this basic model with appropriate variations has worked very successfully in countries such as Italy, Egypt, Ireland, the U.S. and Denmark.
In coming to its conclusions and recommendations the report had also made extensive reference to the 95th report of the Law Commission titled “Constitutional Division within the Supreme Court — A proposal for”; the 125th Law Commission report titled “The Supreme Court — A Fresh Look”; reports of the parliamentary standing committee on personnel, public grievances, law and justice as also the 120th report of the Law Commission on “Manpower planning in judiciary”.
In addition to the above, Mr. Robinson’s report referred to earlier is also available to guide the deliberations of the government.
The Supreme Court has earlier rejected suggestions to have benches of the Supreme Court in other parts of the country. Given this fact, it is imperative we look at other options to the problem and seriously debate the possibilities. The solution may not even be the National Court of Appeal but a completely different idea which emerges during the course of deliberations and is found acceptable to the government, the Supreme Court and the stakeholders. It is, however, important that whatever may be the consensus, it must find a solution to the problems mentioned earlier.
As the saying goes, if we do not do something because it has never been done before, we will go nowhere. The law will stagnate while society advances, which is not good for both.