July 19th, 2009 at 02:57pm
Under Constitutional Law
We should have a review of our Constitution.
Dalip Singh Wasan, Advocate,
Formerly employment Officer P.E.S. II.
E.Mail. dalipsinghwassan @ Yahoo Co.In.
We must accept that our Constitution had accepted all good items available in Constitutions of other countries and therefore, it is a comperhensive document and shall be guiding us for all the times to come. We have been conducting review and there had been some amendments in this Constitution. Still we need more amendments because uptil now we could not provide that only competent people should come forward in the houses. We could not provide maximum age uptil which they shall be in the houses. It would have been better if people who are more than 70 years age should not be present in the house and we should have abolished all the state level legislative assemblies because one Parliament is enough to represnt us. We are one country and we have got one types of our problems and the situations and conditions are also the same. We have got one nation and when we have a deep look, all the provinces have created so many problems for us. These units have given birth to religious and regional political parties and now these parties are taking more than due place in the centre too. Had there been one Parliament in this country, there were chances that there could have been two to three political parties there were chances that these parties would have taken competent people in them. All and sundary would not have been allowed to enter these two to three parties and there were chances that these parties would have adopted the path of giving us shadow cabinets and we, the people of India would have been given a chance to elect ministers direct. The present system of appointing ministers by the Prime Minister is not healthy because here we are obliged to appoint ministers as their share in the government and merit is no consideration. That is the reason there is no unity in the cabinet and they just work. Since ministers are not appointed on the basis of merits, they are not in a position to hold charge of people working under them. Rather they work under the bureaucracy and in most of the cases orders are passed by the bureaucracy and signed by the ministers. Such government cannot be called a
democracy.
We should think of establishing one Public Service Commission for the whole country and similarly there should be Subordinate Services Selection Board for whole of the country. We should see that the Employment Exchanges are also allowed to function and if candidates appointed through these agencies are found fit their services should be regularised without rooting them thrrough the Subordinate Service Selection Boards. Recruitment to all offices should be made through these agencies and even establishments in private sectors be invited to utilise the services of these organisations. We should not disturb and put into difficulties our unemployed people and they should be tested once and given job as per their performance in the competitive test.
We should abolish all schools and colleges which are estrablished on religious basis and there should be educational institutions as national institutions and none should be allowed to preach his own religion through these institutions. We should limit the religious institutions in the country their numbers be fixed by the state and the state must have an eye on these institution so that they may not be giving birth to fundamentalists who can cause danger to our unity and integrity.
We should have one law for the whole of India so that the people must be in a position to understand law and they also start believing that people of one part are not better placed. Whole of India must be open to all of us and none of the state be allowed to see that people of its own area are getting jobs under the state and people from other states are not allowed to participate in competitions.
We should ensure that each one of us has got proper education, proper training and proper adjustment at work from where each one is carrying adequate income with which he is able to run his family administration. We are more than 100 crore in number and therefore, we need a working force of about 40,00,00,000 and if such an assessment is carried out, we shall be short of workers. There had been some defect in our plannings that we could not develop such a structure in which each one of us should have been at work and none should have been dependant upon others.
We may allow to the people religious libirty, but time has come when we shall have to see that people who are living on charity should not be allowed to increase in number. even to day this number is on higher side and we must try to see that no one is allowed to live on charity alone and everyone should be at work because when a nation has got a large number of people living on charity, more and more people shall be joining this line and thus burdon on working people is increased and this is not a healthy sign. We should have an introspection and must see that this number is decreased.
We should see that people of one religion should not be allowed to concentrate on one place. They must be asked to disperse and locate themselves amongst people of other religions because people of one religion are located at one place, they start demanding something which our Constitution dies notallow. We should have one common civil code in which system of marriage and divorce should be one and similarly we should be having one succession law with us. We should see that the family should be bound to look after the infirm and old people and every child must get proper education and proper training. The nation must look after the child through his or her parents, but none of them should be allowed to go astray.
Till we have one spirit, we shall never become a nation and till we attain the status of a nation all these terrorism and riots shall be hampering our progress and we shall remain a backward country. Therefore, we should see that each one of us must get all these fundamental rightws automatically and is not is compelled to fight for these rights in Courts.
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By Law Article
July 19th, 2009 at 08:56am
Under Constitutional Law
Baseball may be America’s favorite pastime, but liberals have a favorite pastime of their own; stretching and warping the Constitution. They’ve been at it so long that it has become a sport which they excel at and one at which daily practice is strongly encouraged, if not already mandated, for any aspiring leftist.
Of course, they only succeed in this pursuit when discussing the Constitution amongst themselves. When they journey out into the real world they run into people like myself who have spent a lot of time discussing how they distort and down right lie about what is in the document that established our current government. When they try to engage in their favorite sport with normal Americans who are not willfully blind as to what the Constitution says and have a grasp of the English language beyond that of a first grader, they fail miserably with their spin which always leads to interesting, if not ignorant, slogans, rants and shout-fests.
Rep. John “Cut and Run” Murtha may just be finding out that he and his liberal brethren have stretched the Constitution as far as the Constitution is willing to stretch even with a healthy suspension of logic, history and basic English however. Last week, U.S. District Judge Rosemary M. Collyer ordered Rep. Murtha to give a sworn deposition in the case brought against him by Marine Staff Sgt. Frank Wuterich relating to his unwise, ignorant and self-serving comments about the marines in Haditha participating in “cold-blooded murder and war crimes”. It is important to note that the case against these Marines has fallen apart.
Murtha’s defense, which was rejected so far by the judge, was that Murtha was immune from prosecution and even questioning about the incident because those comments were made while acting in his official role as a United States Representative. This is an apparent reference to Article I, Section 6 of the Constitution and his “interpretation” of what it says which might get by people unable to actually read the Constitution. But since I actually can, it isn’t going to fly with me and apparently not with the judge either.
For the record, Article I, Section 6 states in it’s entirety: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
The long and the short of this section is that if you are an elected representative of the United States in either house of Congress you cannot be arrested while the Congress is in session, nor can you be arrested while traveling to or from said session. It also grants immunity from prosecution for any “speech” or “debate” that takes place on the floor by saying that they “shall not be questioned in any other Place”. Which would include a court of law. The exceptions to this are of course given as when the Representative or Senator commits a Felony, Treason or “Breach of the Peace”.
Notice there is no exemption for acting in your “official role” beyond these limited descriptions. It is important to note at this time that John “Our Troops Are Murderers” Murtha made the statements with regards to our soldiers and promulgated his charges at places other than during a “speech” or “debate” in the House such as at press conferences and on Chris Matthew’s television program.
So is he immune? Should he not be questioned? Should he just be free to continue to make these assertions? Not unless you really, really stretch the meaning of the Constitution and read between the lines by inserting language that isn’t there. Making such statements during Speeches and Debates in the House may be deplorable and anti-American in as much that they were made without evidence and to prejudice the case against the Marines to promote John Murtha’s delusions, but his despicable acts would be protected. However once he steps out of the Halls of Congress he has no more protection.
He is not being arrested either. This is a civil suit, not a criminal matter. So again, Article I, Section 6 does not apply. Now, if he refuses the order to comply he could be faced with an arrestable offense such as contempt of court. In such a case, he had better convince the House to remain in permanent session and always be in a constant state of travel to and from the Capitol when it is to avoid arrest.
You could also make a strong case that his words provided aid and comfort to the enemy since the Haditha incident was used by our enemies against America and freedom seeking Iraqis. And since Treason is a clear exemption to this clause as well as the first amendment I certainly would be looking over my shoulder if I were Mr. Murtha.
But it’s just the Constitution. Right? And since when do liberals actually care about what the Constitution actually says? Since when do Congressmen care that their power is not unlimited? So I am sure that John “Where’s My White Flag?” Murtha will continue to whine and twist and squirm in an attempt to avoid the truth.
All the while his fellow members of Congress can continue to their smoke screen to cover their own failures. They can run cover for him and promulgate abuses of their power by waging a dog and pony show over things Rush Limbaugh didn’t even say with regards to our troops who are serving bravely over in Iraq and slamming General Patraeus and calling our troops NAZIs, stupid and anything else that they can think of. All for what? In order to try and further convince moonbats who naively believe that the troops really do agree with their stance on the war? Despite the fact that they are continually signing up and even re-upping to serve in a time of war for a mission the liberals detest so much?
Perhaps we are finally getting to a point where the Constitution has been stretched as far as it can be by the left to support their ideas and goals. But even if it has, I doubt they will stop trying to stretch it even further. At which point it is only a matter of whether it will snap back like a rubber band and leave a massive welt or completely break.
God help us if it is that latter
By Law Article
July 17th, 2009 at 02:56pm
Under Constitutional Law
By Law Article
July 17th, 2009 at 08:56am
Under Constitutional Law
If you’ve read it, you may have noticed that the U.S. Constitution, in designating how representatives were to be apportioned by population, excluded “untaxed” Indians, and counted each black slave as three fifths of a person. That’s in the first couple paragraphs, by the way. Fortunately it was changed when the 14th amendment was ratified.
Obviously the writers had the prejudices of the times they lived in. The lesson here is that we cannot create a perfect constitution that will stand the test of time. To think so is to think we have nothing to learn. Any document that is so important will need to be changed as we learn more and progress in our political and moral ideas.
Of course it could be dangerous to create an entirely new constitution, given the politics that would go into writing and ratifying it. Still, if we were to do so, what should it include? I can think of many changes that I would like to see, including an electoral process that is less based on geography and more on citizens political beliefs. In such a system, representatives would be elected not by districts but by voters across the country who share common political causes or goals.
But apart from the specific provisions throughout a new constitution, there is one important change that I would like to see right up front: A declaration of purpose and intent. The current document governing the United States is vague enough that there are many “gray” areas. The result is laws that may or may not be unconstitutional, based on differing interpretations. Differing interpretations are inevitable to some extent, but a clearer statement of purpose would resolve much of the confusion. An example follows.
A New Constitution – Preamble
“The government of the United States has only the powers specified in this constitution, and may not do anything which is not explicitly authorized by this document. The intent of this document is to protect the rights of individuals within the country, both citizens and all others, and that is the only valid purpose of government. When the United States government acts outside its borders, it must still act in accordance with this constitution, and refrain from violating the rights of individuals. This is in recognition that rights are not a gift of government, or an earned privilege, but are inherent in every human being.”
The idea here is to state plainly what the intent of the constitution is and what the proper purpose of the government is. This makes it much easier to determine when a law is allowable or unconstitutional. Combined with the clear enumeration of powers laid out in the rest of the document, there would be much less room for mis-interpretation than there currently is.
It also makes it clear that rights are not a matter of citizenship. Any and all who are within the jurisdiction of the government are to have their rights respected and protected. Also, the government cannot violate an individual’s rights just because that person is not within the borders of the country.
Finally, this preamble states that government power is limited. The current United States Constitution is supposed to do this as well, but is vague in many ways. A new constitution should state plainly what the government is allowed to do, and should require that all new laws specify the constitutional clause that authorizes them. This will prevent much of our useless legislation, and help prevent an abuse of power on the part of the government.
By Law Article
July 15th, 2009 at 12:21pm
Under Appeals and Writs
Meaning of Pardon
In narrow view pardon means to excuse somebody for doing something impolite, or to excuse something impolite, but in broader terms it means, to pronounce the official release of somebody who has committed a crime or other wrongdoing from punishment, or the official forgiving of a crime or wrongdoing.
Pardon as a word is derived from old French perdun and pardun, and modern French pardonner which signify in Brittany the feast of the patron saint of a church or chapel, at which an indulgence is granted. Hence the term pardon finds its origin in the meaning as it was used in Brittany.
A pardon is the forgiveness of crime and the penalty associated with it. It is granted by a sovereign power, such as a monarch or chief of state or a competent authority like church. Clemency is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. Today, pardon is granted in many countries when individuals have demonstrated that they have fulfilled their debts to society, or otherwise deserve, in the opinion of the official, of a pardon. Pardon is some times offered to persons who, it is claimed, have been wrongfully convicted.
Justice Marshal of the American Supreme Court put pardon in Wilson’s case in 1833 as ‘an act of grace, proceeding from the power entrusted with the execution of the laws’.
In 1927 this approach was abandoned and Justice Oliver Holmes, one of the distinguished judges of 20th century said that ‘a pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.’
Need for the Power of Pardon
Writers on law and political science often put the fundamental question, is there need for prerogative mercy? The law commission of India, in its report on capital punishment, examined this question at great length. In its report it discuses several aspects of prerogative. It was argued that in India where death sentence is not mandatory and court is free to consider the circumstances relevant to the question of sentence, the prerogative of mercy is not needed. The commission noted that there are many matters which may not have been considered by the courts. The hands of the court are tied down by the evidence placed before it. The truth of the matter is that law is made for man. Justice is much more than mere codes and precedents. There are occasions when justice and humanity demands that mercy be shown in the matter of sentence.In the American case of Grossman, the Supreme Court pointed out that executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.
Pardon in Indian context
The Central Executive i.e. the President of India exercises very broad and varied functions. It exercises not only executive functions but also, in a limited way, judicial functions as well. The power of pardon is one such very wide power granted to him.
The Article 72 of the Indian Constitution empowers the President to grant pardon, reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases –
(a) where the punishment or sentence is by a court martial:
(b) where the punishment or sentence is for an offence against a law relating to a matter to which the union’s executive power extends; and
(c) of a death sentence.
This however, does not affect the power conferred by law on any officer of the Union armed forces to suspend, remit or commute a sentence passed by a court martial, as well s the power exercisable by the State Executive to suspend, remit or commute a death sentence. The president acts in this matter on the advice of Home Minister.
The Constitution of India is silent as to the manner in which the Presidential pardon is to be exercised. But it seems a reasonable view to take that this power like other powers of the president, is exercised on the advice of the Cabinet.
The exercise of power has not been free from controversy. A number of question have cropped up before the courts as for example-
1. Does the president exercise any personal discretion in the matter or does he acts merely as a constitutional head?
2. Should he give personal hearing to the convict or his lawyer before disposing of the matter?
3. Is the exercise of this power subjected to any judicial review?
The answer to the 1st question is very much known that power of pardon is exercised on the advice of the cabinet. This view was interpreted in Maru Ram’s case. Similarly in Kehar Singh’s case Supreme Court denied that there is any right in the condemned person to insist on an oral hearing before the President, through this, answer to the 2nd query is also clear.
Now remains the most important and controversial question, can pardon be subjected to judicial scrutiny? The court considered it as early as in G. Krishna Gouda v. State of A.P. In this case the President refused to commute the death sentence. They moved a writ petition in High Court and the matter ultimately came before the Supreme Court. The court pointed out that ‘all power, however, majestic the dignitary wielding it, shall be exercised in good faith, with intelligent and informed care and honesty for the public weal’. The court never shows in this case any glaring ground to consider the refusal of commutation as degraded by abuse of power.
Pardon in some European countries
In Canada the pardons are considered by the National Parole Board under the Criminal Code, Criminal Records Act and several other laws. Here once offender is pardoned, a criminal records search for that individual reveals ‘no record’.
The pardoning power in France is vested in President of France. If any one granted with the same the decree of pardon is signed by the President, Prime Minister, Minister of Justice. It can not be published in official journals. But it does not erase the condemnation from the record.
Pardon in Germany is divided between the federal and the state level. The grant of federal pardon lies with the President of Germany, which can be transferred to Chancellor or the Minister of justice. Political crimes like treason or terrorism are tried on behalf of the federal government by the highest state courts. All other pardons are in the jurisdiction of the states. In states it is granted by the respective cabinets, but in most states the state constitution vest the authority in the state prime minister.In UK the power to grant pardon is a royal prerogative of the monarch.
Pardon in United States
The pardon power of federal crimes is granted to the President by the United States Constitution, Article II, section 2, which states that the President shall have power to grant reprieve and pardons for the offences against the United States, except in cases of impeachment. Typically, applications for pardons are referred for review and non-binding recommendation by the office of the Pardon Attorney, an official of the Department of Justice.
Use and abuse of pardoning power
The power of pardon is controversial from the out set; many Anti-Federalist remembered examples of royal abuses of the pardon power in Europe, and warned that the same would happen in the new republic.
Many pardons have been controversial; one such pardon was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct which gave rise to the Watergate scandal. Majority of Americans showed disapproval and he was narrowly defeated in Presidential campaign, two years later. Other cases of such abuse include Andrew Johnson’s sweeping pardons of thousands of former Confederate officials and military personnel after the American civil war, Jimmy Carter’s grant of amnesty to Vietnam-era draft evaders, George H.W. Bush’s pardons of 75 people, including six Reagan administration officials accused in connection with the Iran-contra affair. George Bush’s commutation of I. Lewis ‘Scooter’ Libby’s prison term.
Former President Bill Clinton granted pardon to 140 convicts in different cases on January 20, 2001, his last day in the White House. Clinton himself besieged by controversy, write an article in the New York Times in which he wrote “the vast majority of my Jan 20 pardons went to people who are not well known. Many of these were 1st time nonviolent offenders with no previous criminal records. In some cases I granted pardons because I felt the individuals had been unfairly treated and punished pursuant to the Independent Counsel statute.” More than half of Mr. Clinton’s article was devoted, however, to his pardon of Marc Rich. A billionaire Rich fled the US to escape a massive tax invasion to Switzerland in 1983. Mr. Clinton wrote that many present and former high ranking officials in Israel, as well as leaders of the Jewish community in America and Europe, urged the pardon of Rich because of his charitable contribution and services to Israeli causes, the peace process in the Middle East through education and health programs in Gaza and the West Bank. It was suggested that Rich’s wife, Denis made political contribution which comprise more than $1 million to the Democratic Party; $450000 to the Clinton library etc., whom should America believe? The oral testimony of most charismatic and successful President of America after J.F. Kennedy, or the palpable testimony of donations.This problem may be peculiarly American today but could well be Indian tomorrow, for the pardoning power under the Indian Constitution springs from the same jurisprudential foundations. And the abuse of discretionary power, even at the highest levels of the state, knows no limitation of religion, nationality or culture.
Under the Indian context though the issue of pardon has not gained that much of impetus but has been a matter of scrutiny off late. However, it is to be noted that the issue of presidential pardon had been highlighted under certain cases in the past. One of the landmark cases that brought the issue of Presidential Pardon in the lime light was Maru Ram v/s Union Of India In this case the court expressly stated that the power of pardon under article 72 cannot run riot and must keep sensibly to a steady course and that public power, “shall never be exercisable arbitrarily or malafide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power”. A similar opinion was presented by the court in Kehar Singh v/s Union Of India. In this case the court reiterated, “it appears to us clear that the question as to the area of president’s power under article 72, falls squarely within the judicial domain and can be examined by the court by way of judicial review”. While these two cases did not call for judicial intervention, relying on the law laid down in them, the Supreme Court invalidated the remission of sentence by the governor of Uttar Pradesh in Swaran Singh v/s State of UP, because some material facts were not brought to the knowledge of the governor. Under article 161, rejecting the argument that governor’s action under article 161 is beyond judicial scrutiny, the court held: “if such power was exercised arbitrarily, malafide or in absolute disregard of the finer canons of the constitutionalism, the by product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it”.
On a concluding note, a recent case law brought forward the sorry state of affairs in the country regarding the usage of power of Pardon. Famously known as the ‘remission case’ Supreme Court’s landmark verdict somehow changed the scenario by instilling hopes of many people in the judiciary. In Gouru Venkata Reddy v/s State of AP the dramatic remittal of congress activist Gouru Venkata Reddy, who was undergoing a 10 year imprisonment sentence in connection with the killing of the two persons, raised the eyebrows of many apex authorities. Thus after an appeal to the Supreme Court by the sons of the deceased a bench consisting of Justice Arijit Pasayat and Justice S.H. Kapadia overturned the pardon granted by the then governor of Andhra Pradesh Sushil Kumar Shinde, and warned that the exercise of the clemency power would be tested by the court against the maintenance of Rule of Law. Our Hon’ble Supreme Court gave the ruling that the power to grant clemency is subject to judicial review. Now it can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of law is the basis for evaluation of all decisions.
Granting pardon is not an act of grace; rather it is something more than that. It is very much a part of the constitutional design. Pardon should be granted on the basis of public welfare and rule of law, not because of any religious, political or cultural affinity. The ultimate purpose of granting a pardon should be to create a better society to live in. It should be justified on the lines that public welfare will be better served by inflicting less than what the courts have ruled. However, at the same time it should be kept in mind that the power of pardon should fall under the concept of ‘limited freedom’ where it should also be subjected to judicial review. The power that is vested in the President or the Governor is not for the benefit of the convict rather it should be exercised for the benefit of the society at large.
Nilesh Kumar
By Law Article
July 14th, 2009 at 08:56am
Under Constitutional Law
Jonathan M. Feldman, in The U.S. as a “Failed State” (http://www.counterpunch.org/feldman09032005.html), writes, “It’s obvious that the New Orleans tragedy has revealed that urban areas, particularly those housing the poor and African Americans, are regarded as disposable by corporate and government elites. . . . The U.S. went into Iraq to “save it” and now can barely save itself. . . . We now must ask ourselves, isn’t the U.S. a failed state?” And he obviously believes that the answer is, “Yes.” He goes on to say, ”The solution to this crisis requires several forms of remedial action. One such action would be intervention by a consortia of European States who provided not only economic aid, but some kind of political intervention (in the form of think tanks, grants and other material support) to promote and extend democracy in America.”
Bernard Chazelle, in “The Case for a New Progressive Creed” (http://www.counterpunch.org/chazelle04022008.html) provides a great deal of evidence to support the view of America as a failed state: “By virtually any measure, the United States is the least progressive nation in the developed world. It trails most of Western Europe in poverty rates, life expectancy, health care, child care, infant mortality, maternity leaves, paid vacations, public infrastructure, incarceration rates, and environmental laws. The wealth gap in the US has not been so wide since 1929. The Wal-Mart founders’ family owns as much as the bottom 120 million Americans combined. Contrary to received opinion, there is now less social mobility in the US than in Canada, France, Germany, and most Scandinavian countries. The European Union attracts more foreign students than the US, including twice as many from China. Its consensus-driven polity, studies indicate, has replaced the American version as the societal model to which the developing world aspires.” And he provides these neat comparisons:
* (a) The US is the world’s richest nation; (b) the US outranks only Mexico in child poverty among OECD countries.(28)
* (a) America’s GDP per capita is 11 times higher than Sri Lanka’s; (b) life expectancy for African-American men is 3 years shorter than for males in Sri Lanka.(29,30)
* (a) African-Americans have been the force behind this country’s most influential musical genres; (b) one third of all black men will go to prison at some point in their lives.
* (a) The US scoops up more Nobel prizes in medicine than any nation on earth; (b) 18,000 Americans will die this year for lack of health insurance.
But things are really far worse. Not a single political or social institution in America works. The Congress cannot pass effective legislation, the criminal justice and judicial systems routinely convict the innocent, Social Security and Medicare are grossly inadequate and the commercial health insurance system is dysfunctional. The War on Drugs is stalemated. Our borders are sieves. Immigration control is non-existent; not only is illegal immigration prevalent; many who come here legally merely overstay their visas and no one knows who or where they are. We incarcerate more people per capita than the U.S.S.R. placed in gulags. Only about half of our school children graduate. The university system is open to the stupid wealthy but not the bright poor, and it absolutely fails to instill reverence for truth and goodness in the students it graduates. Scholarships go to athletes who are not scholarly, and scholarly students are graduated with heavy burdens of debt. Our churches instill neither piety nor compassion nor moral behavior. Racism, although perhaps regressing, is still a major denier of civil rights. The infrastructure is in severe disrepair, and the business community can neither manufacture nor market products of high quality. Salesmen regularly argue over who can sell products that don’t work best. Governmental agencies, ostensibly created to protect the public, instead protect the very people Americans need to be protected from. When hazardous products are imported from China, there is a hue and cry but not much action. The Chinese, on the other hand, have banned imports of cheese from Italy because of one batch that was poisoned. The Federal Reserve aids and abets fraudulent financial institutions, and when their fraud is exposed and they are about to collapse, it commits taxpayer dollars to bail them out. The press routinely reports governmental lies and fails to report the news that Americans really need to hear. What the president says is reported even when its significance is no greater than reporting that Leona Helmsley’s now famous dog barked, but the number of Iraqi civilians killed by the American invasion goes unreported. Whenever Hamas kills an Israeli, we are told about it, but we’re rarely told how many Palestinians have been killed by the Israelis. We’re also never told how much America is borrowing from China and other countries to pay the aid we give to Israel. We’re aiding foreign governments with borrowed money and fighting two wars with it too. Official lying has become a common practice, and documents are classified not to protect national security but the hide the malfeasance of officeholders. And our electoral process is regularly corrupted by its complexity and inefficient practices; yet we have the audacity to criticize other nations for their corrupt practices.
Those are the facts, and the United States of America is, by every definition, a failed state. It is a nation built around an 18th Century ideology trying to become a 19th Century empire in the 21st Century.
Yet no one has isolated the reason for this failure. It is that the American Constitution has been nullified by an end run by non-constitutional institutions that have taken control of the nation—faction, which the Founding Fathers thought they had rendered ineffective, lobbying which is erroneously justified by citing the Constitution’s right of the people to petition the government for the redress of grievances, not advantage, and by the Supreme Court’s decision that makes political contributions a form of speech, thereby making metaphorical interpretation an accepted practice. So much for strict construction!
How could this have happened? After all, the Federalist Papers more than adequately demonstrated the dangers of faction. Why did those in government who succeeded the Founding Fathers ignore entirely their teaching and arguments?, a question which, of course, is impossible to answer. But the way of fixing America is not through the intervention of foreign nations, it lies in merely controlling these three misguided institutions.
Faction is the Dark Vader of constitutionalism. The Founding Fathers wrote into the Constitution what they thought was a system of checks and balances, but when one faction controls all three branches of government, there are no checks and therefore no balances. When the need for money to finance political campaigns is predominant, Congressman are easy marks for the corrupting influences of special interest. The government then ceases to function as one “of the people, by the people, and for the people.” But even controlling the influence of faction, lobbying, and campaign financing is not sufficient. The Congress must change its ways.
Membership in the Congress is predominantly held by members of the legal profession. Not a single one of these attorneys would advise a client to sign a contract without reading all of it’s fine print; yet they routinely vote on legislation they have not read. This practice is absurdly insane! Laws that the Congress produces are so voluminous that no one can be expected to have read them. Certainty and promulgation are necessary characteristics of law if it is to be effective. But no one who hasn’t read a law can be certain of its provisions, and huge laws can never be adequately promulgated. Being told to obey laws that no one knows the provisions of is an oxymoronic absurdity. Such laws provide the unscrupulous with an infinite number of possible ways to game the system. And indeed the system has been gamed, the Constitution has been subverted, and the result is that America is a failed state.
No, foreign intervention can not change things. What’s needed is seriousness on the part of Americans. As long as we allow factionalism and its consequences to endure, as long as we allow the Congress to enact legislation that is ineffective even in form, the nation’s future will be grim. Unfortunately seriousness does not appear to be a characteristic of American culture.
© 2008 John Kozy
Retired professor of philosophy and logic who blogs on social, political, and economic issues at
http://johnkozy.mindsay.com and
http://www.jkozy.com. Tries to avoid mere opinion and propaganda and emphasizes logic, facts, and evidence. All or any part of his articles can be cited or distributed.
By Law Article
July 13th, 2009 at 08:57am
Under Criminal Law
SOURCES OF HINDU LAW
India is a huge country not only in terms of its geography but also its population, which has various religions, customs and practices. However, India has two main personal laws i.e. Hindu law and Muslim Law. Before moving ahead, I would like to define the Law – ‘Law is a large body of rules and regulations based mainly on general principles of justice.’
Hindu Law is a personal Law (Law of Marriage, Divorce, Adoption, inheritance etc) evolved through long period of time from many sources (mentioned below) by Hindu religious community of India. Therefore, I love to call it ‘Sedimentary Law’ because Laws from various sources Sedimented and consolidated into Hindu Law. The important sources of Hindu Law are:
1) Ancient Source
2) Modern Source
Ancient source is the main source of Hindu Law, which further subdivided into viz –
a) Sruti: the literal meaning is – ‘what was heard’, and it is originated from Vedas i.e. Rig, Yajur, Sama, and Atharva Vedas. Basically, it is praise in the forms of hymns of the earliest Hindu tradition which deals – types of marriage, adoption, partition etc.
b) Smriti: literally means – ‘what is remembered.’ It is also known as ‘Dharma Sutras’ and available in the prose from. The important Smritis are ‘Manu Smriti, Yagnavalkya Smriti, Narada Smriti etc and, it deals the civil and criminal law, procedural law, marriage Law etc.
c) Commentaries: the discrepancy between above two gives rise a third one i.e. ‘Commentaries, which later on beget two schools i.e. Mitakshara (Vijyaneshwara school) and Dayabhaga (Jimuthvahana school) associated with particular areas.
d) Customs: it is a set of rules and norms, practice by particular society for a long period of time. However, ‘customs arise whenever a few human beings come together as no association of human beings can exit permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations’ (Vinogradoff, Collected Papers). “Indeed custom is coeval with the very birth of the community itself.” (Jurisprudences).
Modern Source refers to the rules and regulations established through legislation by educated and intellectual people. These laws almost codified laws such as –
a) Hindu Marriage Act (1955),
b) Hindu Succession Act (1956),
c) Hindu Minority and Guardianship Act (1956) and
d) Hindu Adoptions and Maintenance Act (1956)
After independence (15 August 1947), India constituted its own Constitution, where India defines itself as a secular country, like this given space to flourish all religions with its own customs and laws. Therefore, the Indian Legal System is a Common Law-cum-Civil Law. Apparently, Hindu Law is a personal law and applicable to person and family relations only.
By Law Article
July 13th, 2009 at 02:58am
Under Constitutional Law
Congresswoman Michele Bachmann is rocketing up the Obama Administration’s enemies list because she is asking questions no liberal wants asked and making points they certainly do not want made. Yes indeed she is. For while asking questions of Timothy, smartest man in the room, America cannot survive without him at Treasury, Geithner about past actions and current plans to allow the federal government more power to seize and manage the assets and contracts of businesses it deems, “too big to fail,” Ms. Bachmann no doubt caught the ear of Big Brother himself over in the White House. For you see, Ms. Bachmann did something that always catches the ears of liberals and lefty politicos busily scribbling words on to paper in order to secure themselves more and more power.What is this thing she did? Why, she cited the Constitution of these United States. And for yet another brief moment in a growing long line of brief moments it became clear once again that Timothy Geithner was indeed not the smartest man in the room.You could hear the uneasiness in Geithner’s voice as he was forced to attempt to answer an actual question of substance. You could also imagine at how at the same time as he was trolling for an answer in that vast, empty sea of a brain of his that he was making mental notes about who he would have to contact to make sure no such substantive questions would ever be raised again.Here is how it went down and how Geithner struggled:BACHMANN: “What provision in the Constitution could you point to … to give authority for the actions that have been taken by the Treasury since March of ‘08?”GEITHNER: “Oh, well, the — the Congress legislated in the Emergency Economic Stabilization Act a range of very important new authorities.”BACHMANN: “Sir, in the Constitution. What — what in the Constitution could you point to to — to give authority to the Treasury for the extraordinary actions that have been taken?”GEITHNER: “Every action that the Treasury and the Fed and the FDIC is — is — has been using authority granted by this body — by this body, the Congress.”BACHMANN: “And by — in the Constitution, what could you point to?”GEITHNER: “Under the laws of the land, of course.”Note that not once did Mr. Geithner ever actually answer the simple question posed to him. When asked to cite the Constitutional authority for any of the actions taken by the Treasury since early last year he simply responded that Congress had given the Treasury certain powers and that they are “under the laws of the land.” But his response is a non-response. The smartest man in the room was flabbergasted and unable to answer a question that he knew that if he answered truthfully would doom all the current, past and future plans of he and his fellow travelers. Perhaps he should have borrowed President Obama’s teleprompter and had his remarks prepared for him by a speech writer.But let’s explore his non-answer answer further. Is citing Congress doing something good enough of an excuse? Is Congress’s power to make law absolute under the Constitution? Of course we all know that it is not. If it were then what powers would be reserved to the states and the people under the Tenth Amendment exactly?Geithner’s response, had it been truthful, would have been that there was no such authority for the vast, vast, vast majority of what the Treasury has done in the last year. But to answer truthfully it would mean that he would have to admit that he and his fellow liberals, both Democratic Party socialists and Republican Party socialist-lites, had violated the Supreme Law of the Land. So truthful answers to these sorts of serious questions are never things you will get from the blowhards inside the beltway.We all know that just because Congress makes a law that the law is not de facto Constitutional. If it were, no law would ever be stricken as being unconstitutional. But since many laws have been it puts the lie to any notion that just because Congress decrees from on high that the order should be accepted and obeyed. We can even go very absurd to prove this point if you like. If Congress were to, for example, pass a bill that stated all people who have blond hair and blue eyes were inferior and not subject to the same rights as people with other combinations of hair and eye colors would it be a Constitutional law? Even if everyone accepted the law would it still be Constitutional? No.Now say that we do not have to worry about Congress being so absurd all you like. That is not the point. And besides we all know that many absurd laws have indeed come out of Congress. Add to that the fact that liberals throughout time and all over the world have espoused the same sort of social and economic philosophies and have indeed sought to treat people very differently based on how they looked . The point is that if Congress did make a law stating such it would not be Constitutional just because Congress made such a law.But Mr. Geithner and the liberals in charge of our government probably have little to fear from the American public recognizing this fact. Because they know that most Americans do not have a clue what our Constitution says and that they will not understand the importance of this exchange between Geithner and Congresswoman Bachmann. Instead they will carry on in blissful ignorance as the nation burns and President Obama fiddles.
By Law Article
July 12th, 2009 at 12:20am
Under Appeals and Writs
Name: Sukant Vikram
Class : 5th Year BBA LLB
College : Symbiosis Law School, Pune , India
Topic—- Judicial Accountability- An illusion or a reality
Introduction —-
“Rex non potest peccare” —- The King can do no wrong
In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system. The accountability must be comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with public power. Power and position in the society come attendant with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty.
Accountability of the judiciary at every level, in a democracy cannot be doubted. The need of an effective mechanism for the enforcement of judicial accountability, when needed, is a felt need and must be accepted.The method by which judges are selected has become a matter of considerable concern for the citizens of our state. Although judicial elections may always has been important and vital process, the selection process is now coming under particular scrutiny. Some believe that although imperfect, the process in place works well enough to need only minor adjustments; others claim that a major overhaul, even scrapping, of the system is necessary. Certainly attention to the issue is warranted: The provisions in place for judicial accountability all threatened by the spread and deepening of problems that, if left unattended, will erode the public’s confidence in our judiciary.Objective —- A democracy is highlighted by the fact that each and every part of it is accountable to each other. In this situation, an independant judiciary which is the backbone of the efficient functioning of the democracy in India has come under a lot of scrutiny. How far do we go to ensure the independance of judiciary when transparency is the shrill and persistent demand of the Time. The judiciary – especially the higher judiciary – has put itself up on Cloud Nine, wrapping itself in a cloak of inviolabilityHow are Judges appointed? Why are they appointed? What are their short-comings? How are these dealt with?These are some questions, the answers of which we would endeavour to reach analysing the various relevant provisions of The Constitution Of India.
Main Text —-
Appointment of Judges—
The High Court judges are appointed by the president after consulting the chief justice of India, the governor of the state concerned and, in case of appointment of a judge other than the chief justice, the chief justice of the high court to which the appointment is to be made as provided by the article 217(1).
Every judge of the supreme court shall be appointed by the president after consultation with such of the judges of the supreme court and of the high court’s as the president may deem necessary for the purpose as laid down under article 124(2).
The words “appointed by the government in consultation with the Chief Justice” in the Constitution were interpreted as “appointed by the government on the advice of the Chief Justice” in the various judgments by the Supreme Court as cited:-
S. P Gupta—-
A seven Judges Bench of Supreme Court extensively considered the issues of Independence of Judiciary in relation to the appointment and transfer of Judges, the issue of appointment of the Additional Judges of the High Court, the issue of the privilege of the Government against disclosure of State documents and the scope of judicial review of the powers exercised by the President.
While deciding the issue of the locus standi of the petitioning lawyers who had challenged the Circular of the Law Minister and short-term extensions of Additional Judges on ground of attack on the independence of the judiciary, Justice P.N. Bhagwati while upholding their right to do so held that where the effected persons are really helpless, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause. The Court will readily respond even to a letter addressed by said individual espousing the public cause.
A bunch of cases were decided together in the present case which were raised in two batches of writ petitions filed in different High Courts which were transferred under Article 139-A to the Supreme Court since they raised common issues of great constitutional importance. One writ was also filed in the Supreme Court. Several more related issues were raised and discussed during the hearing. Each of the Judges delivered a separate judgment.
Supreme Court Advocates-on-Record Association Vs. Union of India
This case directed to constitute a Bench of nine Judges to examine the two questions referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation primacy, and justiciability of fixation of Judge strength.
Impeachment—-
Removal of judges can be done through an impeachment procedures provisioned in the article 124 hereinafter stated as -:
Article 124 (4) of Indian Constitution: A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
But the practical problems faced during the impeachment of any judge has been highlighted in the following instances.
The first ever impeachment—-.
Justice V. Ramaswami
The first-ever impeachment motion against a SC judge, Justice V. Ramaswami, was signed by 108 MPs in 1991. A year later, an inquiry found Ramaswami “guilty of willful and gross misuses of office… “While serving as the Chief Justice of the Punjab and Haryana High Court”. Ramaswami survived the impeachment process as Parliament got divided along regional lines, southern MPs strongly supported him. Only 196 members of Parliament, less than the required two-thirds, voted for his ouster.
Justice M.M. Punchi
This charge sheet was prepared by the Committee on Judicial Accountability in 1998, when Justice Punchhi was a judge of the Supreme Court of India. It was signed by 25 MPs of Rajya Sabha. However, before it could get the signature of the requisite number of 50 MPs of Rajya Sabha, Justice Punchhi was appointed Chief Justice of India. After this, it became virtually impossible to get the Notice of Motion signed by any MPs. Consequently, Notice of Motion could not be presented to the Speaker. The imp lesson of this exercise was that it is very difficult to get the MPs sign the impeachment motion unless three conditions are satisfied. Firstly, the charges must be very serious; secondly they must be provable by documentary evidence which is annexed to the Notice of Motion and finally, the charges must have been given substantial publicity in the media.
In the absence of all the three conditions been satisfied, MPs are afraid and reluctant to sign a charge sheet against a sitting judge. It is normally exceedingly difficult to get documentary evidence to prove charge against sitting judge, particularly in the absence of a statutory investigation by an agency having powers of investigation. Moreover, the bulk of the main stream media is afraid to publicise charges against the sitting judge for fear of contempt. In Ramaswami’s case, the above three conditions were satisfied. Documentary evidence was available against Ramaswami because of the report of the Accountant General who audited the purchases made by Ramaswami as Chief Justice of Punjab and Haryana High Court. This is why, impeachment of judges, however corrupt they might be, is not a practical remedy in discipling them.
Investigation—-
Free and fair investigation is one of the basic pre-requisite of a free democracy. In consonance with this principle, the free and fair investigation of judiciary has become of an immense significance in contributing to the public faith in the effectiveness and impartiality in of the judiciary.
Justice K.Veeraswamy the then Chief Justice of Madras High Court was charged for possession of assets disproportionate to his known sources of income and a case was filed against him by the CBI under the Prevention of Corruption Act. The High Court of Madras dismissed his Petition for quashing of the Case against him and referred the matter to the Supreme Court for deciding certain questions of law. The Supreme Court while deciding the case against the delinquent Judge laid down strict guidelines to protect the independence of Judiciary according to which no F.I.R. can be registered against a Judge or Chief Justice of the High Court, or a Judge of the Supreme Court without the sanction of the Chief Justice of India in the matter. It was held that the Supreme Court is not a court of limited jurisdiction of only dispute settling, and that the court has been a law maker and it is the courts responsibility and duty to apply the existing law in a form more conducive to the independence of the judiciary. It was also said that any complaint against a Judge and its investigation by the CBI, if given publicity will have a far reaching impact on the judge and the litigant public therefore there is need of a judicious use of taking action under the Prevention of Corruption Act.
Right to Information & The judiciary—-
There was a time when the Courts in India, particularly the Supreme Court waxed eloquent about the “Right to Information”, being a part of the Constitutionally enshrined right to speech and expression. It was on the basis that the Right to Information is a fundamental right of people, that the Court ordered that even candidates contesting elections would be obligated to publicly disclose information about their criminal antecedents and their income and assets etc. Yet, though the courts general pronouncements on the right to information have been very liberal, it’s practices have often not been in conformity with the declared right. The double standards of the Courts on Right to Information have become even more obvious after the Right to Information Act has come into force. Though the Act clearly applies to Courts which are obviously included in the definition of Public Authorities, most High Courts did not even appoint Public Information Officers (PIOs) even months after the Act came into force. The Supreme Court has recommended to the government that so far as the Supreme Court is concerned, the decision of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. They have further recommended that the Chief Justice should have the unfettered right to interdict the disclosure of any information, which in his opinion, might compromise the independence of the Judiciary. The Chief Justice has already gone on record to say that even the disclosure of income and assets by judges or the formation of any independent disciplinary authority over judges, would compromise the independence of the judiciary. Going by this, it is obvious that no information about complaints against judges or about their incomes and assets would be available under the Right to Information.
Conclusion
Middle class Indians love their Judiciary.If someone were to draw up a list of institutions that they still believe in, I suspect only two would qualify — the Indian Army and the judiciary. If soldiers protect the nation’s physical well-being, the courts are the gatekeepers of its conscience. And we hate our politicians so reflexively that in any battle between the government and the judiciary, even if we don’t quite follow the contours of the debate, we cheer the courts on.
Small wonder then that we blindly support every attempt by the judiciary to insulate itself from external control. This is because we believe in the independence of the judiciary.
But should this independence mean freedom from accountability?
It may be a worn-out cliché, but after all these years, it’s a question still in search of an answer: who will judge the judges?
Recently the cabinet approved a Bill to amend the Judges Inquiry Act and to create a National Judicial Council that will examine all complaints of corruption and misdemeanours against judges. It has been sold as an example
of cleaning up the system and making it more transparent. But other than some stray comments by a handful of lawyers, no one has dared question the new terms by which India’s judges will judge themselves. There is going to be a setting up of a judicial council.It is to be made up of five senior judges of the Supreme Court, who will handle complaints related to the Supreme Court. Three Supreme Court judges will be assisted by two chief justices of the high courts for all other cases of corruption.
In other words, the judiciary will remain answerable only to itself.
Then, there are the omissions in the new Bill: the Chief Justice of India is entirely exempt from the scrutiny of the judicial council and the council’s powers will not extend to complaints against retired judges.
But for the short comings of the composition of the commission it may be very easily said that it is an absolute necessity to put in place a transparent system for selecting judges for appointment. They should also have an investigative machinery at their disposal, through which they can evaluate complaints against judges and proposed candidates investigated. Such an institution is more likely to result in the selection of proper candidates and would introduce at least a modicum of urgently needed accountability in the judiciary. So maybe we can have a way of treating corruption in higher judiciary. Such measures have to be
institutionalised. And they can be only institutionalised without damaging the general
credibility of the judiciary as a body by having in place (with almost immediate
effect) an office called the office of “Judicial Ombudsman”. I believe this is the only way in whic h we can accommodate the need for keeping
clean and bright the image of our High Judiciary.
Once people know that legitimate complaints are being entertained in confidence,
they will be made to the authority concerned in confidence. And once they see
something is done we will no longer have to see the sorry spectacle of
scandalous and un-substantiated allegations being made openly in the press
about individual Judges.
However, one must appreciate that the immunities provided to ensure judicial independence are intended for the benefit of the litigants in particular and the citizens in general. Therefore it is also acknowledged that judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. Relying on the strong tradition of sharing of ideas and experiences amongst the judiciary across the commonwealth is perhaps one of the optimum methods of arriving at such a balance.
So, it becomes even more imperative that the men and women we trust so implicitly should not be scared of our collective judgment.
Explaining the decision to drop the archaic and colonial prefix of ‘Your Lordship’ from the court rulebook, India’s Chief Justice famously said, “The Lord is only one and he is God above all of us. I am not God, judges are not gods.”
Let’s take that image further. Only God is above the law. All human beings — even those we admire and respect — must be held accountable.
And finally, judges are as human as you and me
5th year BBA LLB
Symbiosis Law School,
Pune
By Law Article
July 11th, 2009 at 12:20pm
Under Appeals and Writs
Introduction:
The passing of the Forty Second Amendment to the Constitution of India in 1976, tribunals became key dramatis personae in the justice delivery system. In order to achieve the objectives of the amendment, which was to ensure speedy disposal of cases, an array of tribunals were set up. These included the Administrative Tribunals, the Rent Control Tribunals and also Tax Tribunals. The constitution and functioning of these tribunals have been controversial and intensely debated. The Constitution of the National Tax Tribunals, through the passing of the National Tax Tribunal Act, 2005 in pursuance of Article 323-B (1) (a). The Act provides a machinery for the adjudication by the National Tax Tribunal of disputes with respect to levy, assessment, collection and enforcement of direct taxes and also to provide for the adjudication by that Tribunal of disputes with respect to the determination of the rates of duties of customs and central excise on goods and the valuation of goods for the purposes of assessment of such duties as well as in matters relating to levy of tax on service. The Act is bound to raise constitutional issues of immense significance as to validity of conferral of the power and functions of the Tribunal, the exercise of such powers and functions, and the concept of judicial review under the Constitution.
The Edict Machinery of Tribunals in India:
The concept and the constitution and functioning of the Tribunals established under Administrative Tribunals Act. The exclusive jurisdiction hitherto have the benefit of by the Tribunals in service matter and distinguish the High Courts was put at stop partially by the Supreme Court of India in its landmark judgment in ‘L.Chandra Kumar Vs.Union of India and others. The Supreme Court diversified and re-distributed the jurisdiction of service matters etc in between these Tribunals for which purpose they have been established and High Courts as per the spirit of the Constitutional mandate enunciated by the framers of the Constitution, keeping in
view the ‘Basic Structure Theory’ and the provisions contained under Article 226,227, 32 and Articles 323 A and 323 B of the Constitution of India.
The salient feature of our Constitutional system that whenever new legislations or enactments are passed, either by Parliament or Legislative Assemblies, it is generally found that, they, being tested in courts of law, either on their validity as a whole or certain provisions of such acts if they are offending any provisions of Constitution, any public policy or established legal principles. Therefore, no exception was shown to the ‘Administrative Tribunals Act, 1985, enacted in terms of Article 323 –A of the Constitution of India. Consequent upon the establishment of service Tribunals in the country ‘under the Administrative Tribunals Act, 1985, a string of litigation had erupted before the High Courts of several States and also in Supreme Court, questioning the validity of certain provisions of the Act and also ultra vires of Articles 323-A and 323-B. Firstly, the ‘Apex Court’ by a Five Judge Constitution Bench, headed by the then Hon’ble Chief Justice, Justice P.N. Bhagwati, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others3 said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal. Thereafter, a seven Judge Constitution Bench of the Supreme Court in ‘L. Chandra Kumar case’ while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in ‘S.P. Sampath Kumar’s case’, but also held that, the Tribunals are supplementary in their role and the power of ‘Judicial Review’ vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the
‘Administrative Tribunals Act, 1985′ which excludes the jurisdiction of High Courts. The Supreme Court in the above case further held that: “The Tribunals created under Article 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a ‘Division Bench’ of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunal will, nevertheless, continue to act like Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It will not, therefore, be open or litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” In the same case, when an argument was advanced for the superintendence over the Tribunals by the concerned High Courts, the Supreme Court categorically held as follows: “To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them”. Therefore, in view of the law laid down by the Supreme Court in ‘Chandra Kumar’s case’(emphasis furnished supra) this Tribunal is now functioning as a ‘Court of first instance’ like any other Tribunal in the country established under Article 323-A of the Constitution of India. It is also to be noted that the ‘Judicial Review’ propounded by the Supreme court in ‘Chandra Kumar’s case cannot be treated/equated with an ‘Appeal’ in as much as the constitutional exercise by way of ‘Judicial Review’ displayed by the High Courts originated from the ‘Basic Structure Theory’ read with Articles 226 and 227 of the Constitution of India.
Appellate provisions under the direct and indirect tax enactments
Aforementioned to National Tax Tribunal, under the direct and indirect tax enactments, appeals on substantial questions of law from the decisions of tribunals such as the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lies to the High Court.
The Income Tax Appellate Tribunal Under Section 252 of the Income Tax Act, 1961 an appellate tribunal known as Income Tax Appellate Tribunal has been set up which consists of both judicial members as well as Accountant members. This tribunal hears appeals against orders passed by the Deputy Commissioner of Appeals or the Commissioner of Appeals, as specified in Section 253 of the Act on questions of law as well as questions of fact. Under the direct tax regime, Income Tax Appellate Tribunal is the final authority as regards determination of questions of fact. Under Section 260 A of the same Act, an appeal lies to the High Court, from every order passed by the Income Tax Appellate Tribunal if the High court is satisfied that the case involves a substantial question of law. However, there is also a provision for filing further appeals to the Supreme Court from any judgment of the High Court as specified under Section 261, only if the High Court certifies that the case is fit for appeal to the Supreme Court. In cases where High Court refuses to give such certificate, the aggrieved party has an option to invoke extraordinary jurisdiction of Supreme Court through special leave petition under Article 136 of the Constitution of India. Income Tax Appellate Tribunal, High Courts and the Supreme Court have been given similar powers of hearing appeals in respect of disputes concerning wealth tax under the Wealth Tax Act, 1957. The Customs, Excise and Service Tax Appellate Tribunal Under Section 129 of the Customs Act, 1962 the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been constituted which consists of Judicial as well as Technical Members. The Tribunal hears appeals against orders passed by the authorities mentioned in Section 129 A of the Customs Act. It also hears appeals against orders passed by the excise authorities as specified in Section 35 B of the Central Excise Act, 1944. Earlier, instead of appeal a reference used to lie regarding questions of law. An appeal lies to the High Court on a substantial question of law against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, under Section 130 of the Customs Act, as substituted by the Finance Bill, 2003. Similar provision has been incorporated in respect of appeals to High Courts under the Central Excise Act, 1944. The tribunal also has appellate jurisdiction in anti-dumping matters and the Special Bench headed by the President of the tribunal hears appeals against orders passed by the designated authority in the Ministry of Commerce. The appeals under the Service Tax are also heard by the tribunal. This tribunal is the appellate authority on matters relating to classification and valuation, with the appeals lying to the Supreme Court in these matters.
The Need for Establishment of National Tax Tribunal in India:
The necessity for uniformity and certainty in the administration of tax laws (both direct and indirect tax laws), appeals or references from the orders of the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lie with the High Courts, these Courts get flooded with such cases which need considerable time to dispose them. Due to the heavy workload of the High Courts, there is a huge backlog of tax related cases as a result of which huge revenue is blocked in such litigations. This is adversely affecting the national economy. Hence, urgent measures are required to be taken to speed up taxation matters pending
before the High Courts. It may also be noted that there are at present 21 High Courts. Many a time, decisions of the High Courts vary from each other which create uncertainty, delays and problems in the administration of tax matters. Conflict of decisions amongst various High Courts
on the same point of law have the effect of distorting uniformity and give rise to unnecessary appeals to the Supreme Court which results in further delay.
National Tax Tribunal will help in clearing the backlog and mitigating the burden that lie at the doors of High Courts. The constitution of the National Tax Tribunal would relieve the taxpayers from the burden of pursuing the tax disputes for a long period and substantially reduce the workload of different High Courts which could not concentrate and devote as much focus which the complex tax laws presently demand.
Judicial Sovereignty and the National Tax Tribunal
In the Landmark Judgments of the Court in L Chandra Kumar and Sampath Kumar that even if the Tribunals have to play a supplemental role, given the powers that they enjoy, including the power to strike down legislation as ultra vires the constitution, the NTT will have to enjoy Judicial Sovereignty as understood in the Indian constitutional context. Judicial Sovereignty in India always has been a very controversial subject. The judicial pronouncements and the scholastic opinion in this regard, point out different stages at which the independence of the judiciary will have to be assessed. Judicial Sovereignty will include the collective independence of the judiciary from the other branches of the State and also the independence of the individual judges. The first aspect relates to appointment, removal etc whereas, the second aspect relates to matters concerned with security of tenure, salaries and allowance etc. Let us take up these issues in relation to the National Tax Tribunal. The Members and the Chairperson of the National Tax Tribunal are appointed by the Central Government in accordance with the recommendation of a selection committee consisting of the Chief Justice of India or his nominee. Though the other two members in the committee are not from the judiciary, it is submitted that this is sufficient safeguard against executive fiat. In terms of the qualification also sufficient safeguards seem to have been provided. The legislation provides that all members including the Chairperson have sufficient legal qualifications and adequate experience to handle complex matters relating to tax as also maters relating to the vires or otherwise of legislations and administrative actions. More importantly, the method of removal of the member and the Chairperson also has been made sufficiently elaborate to minimize executive interference. Section 11 provides that removal and suspension can take place only in consultation with the Chief Justice and on completion of a formal enquiry. The Chairperson also has been given enough discretion to constitute the benches of the National Tax Tribunal. In terms of salaries and other benefits, the members and the Chairperson have been accorded the same status as that of High Court judges. Also of significance is the fact that these Tribunals have been vested with contempt powers under section 12 of the NTTA, 2005 in addition to certain powers of the Civil Court granted to it in section 16. The legislation also protects actions taken in good faith in the course of discharge of duties by any member, Chairperson or other employee, which also helps in maintaining judicial independence. In all it is submitted that the provisions of the enactment do indeed secure judicial sovereignty.
The Differentiation of National Tax Tribunal and High Courts in India
There is a provision in the Act that may cause adversity to tax-payers. The Act stipulates that an appeal before the NTT can be preferred only if the appellant deposits at least 25 per cent of the tax or duty payable on the basis of the order appealed against. The NTT is also given the discretion to condone this requirement. There is no such stipulation in cases that go before the
high court. Yet another distinction is that no interim order can be passed by the NTT without hearing the other party. No Tribunal constituted under 323A or 323B of the Constitution can ever
oust the jurisdiction of the high court under Articles 226/227 of the Constitution. The writ jurisdiction of the high court will continue, despite the provision that appeals from the NTT will go to the Supreme Court. The NTT will, therefore, be one more forum working along with the
High court.
The Government makes it appear that there is huge pendency before the various high courts involving fiscal disputes. The truth seems to be that the overall pendency does not exceed 30,000 cases, the maximum being around 10,000 in Mumbai and an equal number in Delhi. Probably, constitution of permanent tax benches in these two High Courts will solve the problem for revenue. The NTT will not be governed by the Civil Procedure Code, though rules of natural justice will apply.
Conclusion
There cannot be fault with the intention of the Government, to reduce the backlog of cases, in proposing the National Tax Tribunal, but the way in which the NTT has been setup raises a lot of concern. Apart from creating multiple and simultaneous structure for the resolution of tax disputes, which will obviously lead to a lot of turmoil, the NTT also faces challenges in the form of allowing Chartered Accounts to appear before it. The enactment seems to fair well in terms of securing the independence of the judiciary but fails the Constitution on account of abridging the writ jurisdiction of the High Courts in relation to the transfer of cases. This is a grave blemish that will have to be rectified. Efficiency arguments for and against the Tribunal can be analyzed or answered only if a systematic and scientific study happens in that regard. The Law Commission must come out with official statistics in this regard. More importantly, we will have to decide whether Tribunals are the best way to deliver justice in relation to tax matters or whether mere creation of exclusive tax benches in the High courts would solve the problem. Vacancies in the High Courts are not filled regularly nor is there a concerted effort at the national level to streamline procedures relating to dispose off pending disputes. The Government has not been able to come up with any realistic presentation statistics of existing tribunals nor has it explained tribunalize the tax administration for the justice further. At least in future, efforts like this, to create an alternative forum and working substitute for the Court must be backed with methodical study, more debates and comprehensive planning, in order to guarantee that they do not end up as unproductive outlay at the hands of the exchequer.
Bibliography:
1) Durga Das Basu- Shorter Constitution of India- Thirteenth Edition 2001 Wadhwa Nagpur.
2) H.M.Seervai-Constitutional Law of India: A Critical Commentary- Universal Law Publishers
3) Walter W. Brudno- Taxation in India-Harvard Law School International Program in Taxation.
4) The National Tax Tribunal Act, 2005- Bharatgazette Government of India.
5) The National Tax Tribunal (Amendment) Act, 2007- Manupatra Bare Act.
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