Reasons may not be required: But Reasonableness is !!

About 3 years ago, the clients approached me for this case with an interesting set of facts. They came up with a narration that a lady Sarpanch elected directly by the villagers was sought to be removed from the post by bringing a no-confidence motion against her within less than a month of her taking charge. I was not aware at that point of time that the said discussion would end up in the reported case of Shivangiben Chetankumar Patel vs State of Gujarat and Ors.(as reported in 2019(2) GLR 865) 

During the discussion, a fresh book of Gujarat Panchayat Act, 1993 reached my table and the provisions were given a glance. A confident smile comes on the face and I moved on to inquire as to why they approached me instead of any other advocate. They responded by saying that they did approach a few advocates and all of them have said that it was a very good case on facts and they shall focus on arguing the petition on the ground that such immediate proposal for bringing a no-confidence motion could not have been brought against the lady Sarpanch. I prima-facie agreed to the same proposition on facts, but then it was pointed out to me by the client and the briefing advocate accompanying him that there is already a decision delivered by the Gujarat High Court in the case of Thakore Gandaji Chundaji[i] wherein the Division Bench had upheld the validity of Section 56 of the Gujarat Panchayat Act, 1993 and it has been further held in the said judgement that there is no restriction as to bringing a no-confidence motion against the Sarpanch in any time from the date of her appointment and the entire democratic principle permits the no-confidence motion to be initiated by the elected members against the directly elected Sarpanch. The client clearly mentioned that there was no answer to the said judgement by any of the advocates whom they approached and that is why they wanted something out of the box to overcome the situation at hand.

After the clients left, it was more of a brain storming session for me as the law of elections and no-confidence were much clearer and the scope under writ jurisdiction was also limited. Also, I could not find a single decision of the Court that could come to our rescue. With this I was clear that an extensive reading on the issues at hand lie ahead, so a long night was to follow for some in depth research on the same.

The only relevant case that I could find was the case of Vipul Chaudhary vs State of Gujarat[ii] wherein the Honorable Supreme Court went on to explain the democratic principles of no-confidence motion. It was a case wherein the Honorable Supreme Court went on to read the essential requirements for the procedure of moving a no-confidence motion in co-operative societies with a restriction as to the period in which the motion can be brought. The moment this decision was traced, I picked up the phone and spoke to a fellow advocate friend; Jay Trivedi and sought his advice on the said judgement. After a long discussion the petition was drafted on the grounds of unreasonable action and the failure to adhere to the democratic principles.

The petition was filed on urgent basis and the petition was listed on 14.02.2017 at Sr. No. 1 in the court of Honorable Mr. Justice R. M. Chhaya. It is always convenient to argue in a court which reads every page we have filed and the same was the case here. My matter was called out and the following conversation took place-

Me: Lordship, in less than a month of me taking over the charge as Sarpanch the members have sought to move a motion of no-confidence against me. Absolutely a high handed action on the part of the members

Hon’ble Justice Chhaya : So what, it can be moved on the very next day

Me: Not after Vipul Chaudhary’s Case

Hon’ble Justice Chhaya : It was under the Co-operative Societies Act

Me: But the principle would be the same. It is about no-confidence motion by the members against the President

Hon’ble Justice Chhaya: Still a different Act.

Me: But Sir, still the same principle. (I tried to read the concluding paragraphs of the said judgement)

Hon’ble Justice Chhaya: Ok . Will issue notice and make it returnable day after tomorrow. The motion is scheduled for 17^th .

Me: Yes Sir. But it may create difficulty if not stayed.

Hon’ble Justice Chhaya: We will hear it on 16^th itself.

Me: Ok Sir.

 After that Sr. No.2 was called out and notice was issued in it. But immediately I made a mention

Me: Lordships, May I make a request that let notice be waived by the AGP on behalf of the state.

Hon’ble Justice Chhaya: Yes. They will waive.

Me: Obliged

Hon’ble Justice Chhaya: Wait Mr. Nair. Let the matter be taken up at 2:30 and the AGP will take instructions by then. I will also go through the judgement. You give the copy of the judgement to the Court Master.

Me: Surely Sir.

Then the matter was scheduled to be taken up in the second half itself, which meant that the Honorable Court would be ready after reading the judgement and shall also see the facts of the case. After one more brainstorming session with Jay, various other paragraphs of Vipul Chaudhary case were discussed and the Doctrine of Constitutional Silence was given a thought.

It was then with the commencement of second half that my matter was called out before the Hon’ble Justice Chhaya:

Mr: Lordship! May I make a request to refer to para-25 and 48 of the judgement? Hence in my    respectful submission the Court may read the provision in a manner so as to bring it in consonance with the Constitution. 

Hon’ble Justice Chhaya: Now stop. I am granting you interim relief.

Me: Immensely Obliged.  (Arranging the file and the books and just focusing on the dictation of order. Finally the order was dictated and I had secured an interim relief)

The moment I came out of the court room, I heaved a sigh of relief and yes it is the time for celebration now. The moment of celebration was flooded with calls from people whom I have always looked up to. The matter was now directed to be listed on 16.02.2017.

By that time the battlefield had to be kept ready and it happened on 16.02.2017 wherein the members of the Panchayat came up with a Civil Application for joining party wherein they had engaged Senior Advocate Shri Dhaval Dave and the State of Gujarat was now being represented by the Government Pleader Smt. Manisha Luvkumar. On 16.02.2017 the matter could not be heard as the Civil Application was yet to be decided and the main matter could not have been taken up without it. The matter had already gained some popularity in the court premises as it was the first time that in such issue an interim relief was granted and the legality of the issue involved would change the course of election law to a great extent. The scenario of 16.02.2017 made it clear that this is going to be a fierce battle. The matter was then put up for hearing on a fixed date with an understanding that the matter will be taken up on that day itself.

The matter required much deeper study and so the only remedy available to me was to approach my Guru- Senior Advocate Shri. S. N. Shelat in the matter. It was a case which was discussed with him even before filing and so it was easier to brief him on facts. The focus here was on the the law so it was only Shelat Sir who could have given it the touch it required. There were discussions on the applicability of doctrines and dealing with it in the required sense so as to make it applicable in the present case.

On the date of hearing Shelat Sir started with the facts and immediately proceeded on the scheme governing the Panchayat and the requirement of reasons and the need of the Court to read the scheme harmoniously. The matter was defended tooth and nail by the State Government and the private respondents. The law favoured them but the facts were with us and ultimately we lost the petition wherein the Honorable Justice Chhaya dismissed the petition vide order dated 03.04.2017 on the grounds of impermissibility to read into the provision, scheme of the act did not restrict the no-confidence motion and it did not even provide for assigning reasons for bringing no-confidence motion against the elected members and so the petition was not to be entertained.

Immediately on the next day an appeal was filed and circulation was sought for 06.04.2017. In the meantime the private respondents came to know that appeal was filed before the Division Bench and so a notice for convening the meeting on 06.04.2017 at 10:30 AM was issued by the TDO. The intimation as to the appeal was given to the TDO but ultimately the meeting was convened even before the matter could be taken up on 06.04.2017. The meeting was convened at 10:30 AM and a no-confidence motion was passed against the Sarpanch. In spite of the fact that the TDO and all the concerned were pointed out that that the Appeal would be heard by 12, the authorities proceeded with the proceedings and the Sarpanch was ousted.

I was informed about the motion by the clients and I informed Shelat Sir about the same to which Sir smiled and asked me to get the Gujarat Panchayat Act and he just turned some pages and said “OK. Now let’s see once the matter is called out.”

The matter was listed before the Court of Hon’ble the Chief Justice Mr. R. Subhash Reddy and Hon’ble Mr Justice V M Pancholi. The matter was called out at 11:15 AM and the respondents were already there being represented through Government Pleader and Senior Counsel Mr. Dave.

Shelat Sir in his usual style even without opening the brief started by stating:

Shelat Sir: I am a Lady Sarpanch elected at the wish of the village and these 11 members don’t want me as Sarpanch. Let me work first and then test the confidence in me.

Chief Justice Reddy: We have gone through it. This is to be admitted.

Shelat Sir: We have been informed that they have moved the requisition in a hurry this morning and motion of no-confidence is passed against us. My Lords may just peruse the provisions of Section 56 which provides that even after passing of the motion we continue to remain in the office for 3 days.

Chief Justice Reddy: We are granting status-quo.

Counsels for the Respondents: She is already removed by the motion and she may not be permitted to continue.

Chief Justice Reddy: That is why Status-Quo. She needs to continue as the Sarpanch. The village wants her and only you 11 members don’t want her.

Chief Justice Reddy then dictates the order of granting interim protection to us and again a sigh of relief and this time coupled with a moment of joy.

It was then the matter was pending for quite some time and the other side made request to the Court a lot of times to take up the matter but ultimately it was taken up for hearing and the matter was heard for 3 days in different sessions.

It was the arguments that followed for these 3 days displayed how Shelat Sir can destroy a formidable opposition even when the case laws are against you but still you can evolve a new principle altogether to teach the next generation how a matter is to be argued on principles. Shelat Sir started with the facts and pointed out the principles that were to be kept in mind when such issue is to be adjudicated by the Court. The arguments were on the principles of purposive interpretation of statue, harmonious construction, doctrine of constitutional silence, 73^rd Constitutional Amendment and governing principles of stability, certainty and continuity and most importantly on the doctrine of reasonableness. The essential element that was to be considered by the Court in this case was how reasonableness can be read into a scenario where the legislation does not even require reasons. Some important submissions made by Shelat Sir are required to be mentioned herein:

Shelat Sir: If such action is permitted to continue, the action runs contrary to the 73^rd Amendment which mandates stability and continuity as its objectives.

Shelat Sir: Vipul Chaudhary case not just reads no-confidence as a democratic principle but also reads time as an essential element to adhere to the same. This case covers my case completely. This is point blank covered by Vipul Chaudhary’s case.

Shelat Sir: I am aware that provisions of the Panchayat Act do not require reasons to be recorded for moving a no-confidence motion. Non-requirement of reasons would not dispense with the requirement of reasonableness. Any action if found to be unreasonable is required to be struck down by this Court in writ jurisdiction. My argument is supported by Singhal’s Case.   

Shelat Sir: Purposive construction of the statute requires reasonableness to be read into it. That does not mean reading into the provision but, any action failing on reasonableness is required to be tested keeping in mind the cardinal principle of purposive construction.

The appeal was opposed by the Senior Counsel for the private respondents and the learned Additional Advocate General on behalf of the State. The aspect of reading in or reading into was argued by the respondents and also the question as to the non-requirement of reasons for moving no-confidence as the no-confidence itself is a reason for throwing out the elected Sarpanch.

It was on the fateful day of 09.05.2018 that the Honorable Division bench was pleased to deliver the verdict in our favour by allowing the appeal and quashing and setting the requisition and subsequent motion of no-confidence which was passed prior to hearing of the appeal.

The judgement lays down important guidelines by deviating from the previous instances wherein the Writ Courts have thought it fit not to interfere in such matters, but the Court in this while allowing the appeal distinguished various judgements and went on to even issue general directions restricting the members from moving a requisition within a period of one year from the date of election and with a further restriction in case of failure to pass the motion that no subsequent motion could be moved within a period of six months.

Every bit of the judgement reflects the intent of judiciary to make sure that the Constitution and its ethos are followed in proper sense and no one should be able to take the benefit of its silence and if there is silence then courts can step into it to make sure the actions conform to the standards of the Constitution.

The court also laid down an important principle to draw a line of distinction between reasons and reasonableness as it was a settled law that reasons are not required for moving a no-confidence motion, but this time court went a step ahead while accepting the principle developed by Shelat Sir during the course of arguments that reasons may not be required, but reasonableness cannot be given a go by.

“Reasons may not be required, but Reasonableness is”

-S.N.Shelat, Sr. Advocate

Vikas V Nair

August 9, 2020

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[i] Special Civil Application No. 3820 of 1999 , decision dated 5.10.1999

[ii] AIR 2015 SC 1960

 

I am the Judge-But not in my Cause !!!

I am the Judge and I will decide !!

But shall not when the cause includes ME !!!

February, 2016 saw a sight which was not much pleasant for the Legal Fraternity and the Common Public when the headings of newspapers and news websites read the wordings of a sitting Judge of Madras High Court in a judicial order passed by him staying his own transfer as ordered by the Chief Justice of India in his powers as the head of the Indian Judiciary. It raised two important questions in the minds of the public at large. Firstly, Whether an administrative order of transfer passed by the CJI can be stayed by a High Court Judge and Secondly that such a judicial order can be passed when the administrative order is passed against the very same judge. Questions of great importance did arise in the entire episode of drama which included the involvement of big names in the legal fraternity, but the same remained unanswered by the dominance of the Highest Court of India using its powers to stay all the orders passed by the High Court Judge once the transfer orders were issued. Such an apprehension of passing orders Suo-Motu was already there and so Senior Advocate Shri K K Venugopal already made a mention before the Hon’ble Supreme Court that Justice Karnan of Madras High Court may issue suo-motu orders staying the transfer during the course of the day and the apprehension turned into reality when such orders were being dictated by Justice Karnan in the Madras High Court and the drama continued further, but the venue of the drama changed to the premises of Supreme Court where Justice Khehar passed an order keeping it open for the Chief Justice of Madras High Court to not allot any matters to Justice Karnan and the same shall imply that no judicial or administrative orders can be passed by Justice Karnan unless the same was kept before him by the special orders of the Chief Justice of Madras High Court.

The entire episode raised eyebrows across the nation, wherein various legal experts answered legal queries and news channel debates were taken to new highs in terms of decibels of sound. But a legal query which was raised at that point of time and is not raising eyebrows any more but is raising a pinch of doubt in the minds of public at large and also in the minds of legal fraternity is that “Whether the Order passed by Justice Karnan staying his own transfer legally tenable?” and that is what I am trying to answer in the present article.

The answer can be derived straight from the latin maxim “Nemo debet esse judex in propria sua causa” which means “No One ought to be a Judge in his own cause” and the entire episode could have been open and shut by the usage of this latin maxim at the very inception, without passing any remarks about the conduct and scenarios prevailing in the court room of Madras High Court. But the same was not done by the Hon’ble Supreme Court directly so does it mean that this maxim fails or it means use of such maxim was not alone enough to control the situation. It is also very lame to think that Justice Karnan could not have been aware of such a maxim and he could have passed an order staying his own transfer. So this maxim needs to be well thought for prior to jumping onto such easy conclusions.

To start the Judicial Pronouncements on the said principle I would like quote the words of Justice P N Bhagwati in the decision of Ashok Kumar Yadav versus State of Haryana reported in AIR 1987 SC 254 “One of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. The question is not whether the judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. If there is a reasonable likelihood of bias `it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting'. The basic principle underlying this rule is that justice must not only be done but must also appear to be done.” The aforesaid words narrated by Justice Bhagwati clears the air on the very maxim by dissecting the interpretation of the principle into a vision to a reasonable apprehension of bias shall incapacitate the judge from taking any decision on the said issue. And when it comes to apprehension the entire legal fraternity is based on the outcomes of the apprehensions made by an eminent jurist as well as laymen, so it is a window given to think something more but with the windows smaller than an eyelash has no scope for any clarification and the same straight away restricts any such decision on their own cause.

In the case of A.U. Kureshi v. High Court of Gujarat reported in 2009 (11) SCC 84, where the decision taken by the Disciplinary Committee of Gujarat High Court was under challenge before the Hon’ble Supreme Court on the ground that the Hon’ble Judge who decided the Challenge to the said decision in Judicial Capacity was a member of the Disciplinary Committee which proposed the dismissal of the petitioner from the services to the State Government. The said challenge was held in favour of the Petitioner and the matter came to be remanded back to the High Court on the very ground by application of this maxim. The Hon’ble Supreme Court stated as “The decision made by the Disciplinary Committee was a vital component of the process by which the High Court of Gujarat made the recommendation to the State government for the dismissal of the appellant. It is therefore not proper for a member of the said Disciplinary Committee to decide on a challenge against the same dismissal order while acting in a purely judicial capacity. It is an accepted principle of natural justice that a person should not be a judge in his or her own cause. In common law, this principle has been derived from the Latin maxim - `nemo debet esse judex in propria sua causa'. A reasonable permutation of this principle is that no judge should adjudicate a dispute which he or she has dealt with in any capacity, other than a purely judicial one. The failure to adhere to this principle creates an apprehension of bias on part of the said judge” It was also quoted as “In view of this, it is our opinion that the learned judge who was part of the Disciplinary Committee which suggested the appellant's dismissal should not have later heard the matter on the judicial side. In the present case, the Disciplinary Committee had suggested the appellant's dismissal on the basis of which the High Court of Gujarat made the subsequent recommendation to the State government”. This decision tightened the clutches on application of this maxim as the highest level of unbiased approach is expected from the Judiciary in our Country and the principle when made applicable in a case where merely the apprehension of bias on the basis of judicial adjudication by a member of the disciplinary committee led to quashing of the order. This fundamental principle of jurisprudence is very well guarded and sharpened by the Supreme Court in the said decision.

The use of latin and other legal maxims always create an apprehension in the minds of public at large that the same are to be used by the Judicial Forums only and the same are not required to be followed in the common routine. But when it comes to this maxim, any action taken by Executives and Legislatives if crosses the line of application of this principle then judicial review of the same is hardly an inch away and the Judiciary is more than pleased to apply this principle and display their supremacy over the other wings of the Constitution.

The non-treatment of this principle by any of the judicial or quasi-judicial authorities is a direct attack on the breach of principles of natural justice and though it is expected from the Judicial authorities to be well versed with the application of law, it is expected from the quasi-judicial authorities to follow the principles of natural justice and hence though the principle being a legal principle of jurisprudence the same clutches the quasi-judicial authorities also and it is asigh of relief for a common man as it is out of question to convince a fact finding quasi-judicial authority who has been involved in the investigation against you especially when he is given the liberty to adjudicate his own investigation. The same has been well explained and clarified by the Hon’ble Apex Court in various decisions in the cases of Vide Secretary to Government, Transport Department v. Munuswamy Mudaliar and Anr reported in AIR 1988 SC 2232; Meenglas Tea Estate v. The Workmen reported in AIR 1963 SC 1719; and Mineral Development Ltd. v. The State of Bihar and Anr reported in AIR 1960 SC 468. In all these cases this principle has been made applicable in a strict manner and the claws of the adjudicating authorities have been clipped when they themselves have been involved in the adjudication process. The best example of the strictness of applicability of this principle is reflecting in the case of Arjun Chaubey v. Union of India and Ors reported in AIR 1984 SC 1356, wherein an employee serving in the Northern Railway had been dismissed by the Deputy Chief Commercial Superintendent on a charge of misconduct which concerned himself, after considering by himself, the explanation given by the employee against the charge and after thinking that the employee was not fit to be retained in service. It was also considered whether in such a case, the court should deny the relief to the employee, even if the court comes to the conclusion that order of punishment stood vitiated on the ground that the employee had been guilty of habitual acts of indiscipline/ misconduct. This Court held that the order of dismissal passed against the employee stood vitiated as it was in utter disregard of the principles of natural justice. The main thrust of the charges against the employee related to his conduct qua the disciplinary authority itself, therefore, it was not open to the disciplinary authority to sit in judgment over the explanation furnished by the employee and decide against the delinquent. No person could be a judge in his own cause and no witness could certify that his own testimony was true. Any one who had a personal stake in an enquiry must have kept himself aloof from the enquiry. The court further held that in such a case it could not be considered that the employee did not deserve any relief from the court since he was habitually guilty of acts subversive of discipline. The illegality from which the order of dismissal passed by the Authority concerned suffered was of a character so grave and fundamental that the alleged habitual misbehaviour of the delinquent employee could not cure or condone it” The strictness of applicability of this fundamental principle reflects from the wordings which weighs the illegality of the order much more than the habitual misbehavior of the employee leading to the termination and hence the order was quashed.

A pleasant approach was taken by the Hon’ble Apex Court in the case of Bihar State Min Deve Corporation vs Encon Builders Pvt Ltd reported in AIR 2003 SC 3688 wherein it was made clear that even a tincture of doubt shall render the entire exercise legally futile and a direct doubt shall lead to automatic disqualification of the adjudicator. “There cannot be any doubt whatsoever that an arbitration agreement must contain the broad consensus between the parties that the disputes and differences should be referred to a domestic tribunal. The said domestic tribunal must be an impartial one. It is a well-settled principle of law that a person cannot be a judge of his own cause. It is further well-settled that justice should not only be done but manifestly seen to be done. Actual bias would lead to an automatic disqualification where the decision maker is shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal.” Any mischief with the applicable principle shall amount to such an error in the proceedings which cannot be fulfilled even at the appellate stage by leading arguments to any extent on the aspect justification of bias and interest by the authority involved in the case.

In a remarkable decision rendered by the Hon’ble Supreme Court in the case of Krishna Bus Service P Ltd Vs State of Haryana reported in AIR 1985 SC 1651, whereby the Court quashed the notifications of the Haryana Government by way of which The General Manager, Haryana Roadways was conferred the powers exercisable by a Deputy Superintendent of Police under the Punjab Motor Vehicles (Haryana First Amendment) Rules, 1973 to inspect, search and seize the vehicles with regards to their fitness and other compliances on the same principle that The General Manager, Haryana Roadways would be always inclined towards betterment of their own roadways and the same shall lead to a direct biased approach against the private transport owners plying their buses.

An interesting question regarding permissibility to appear as a witness in the proceedings initiated by himself also did arose in the case of Mohd Yunus Khan versus State of UP reported in 2010 (10) SCC 539 wherein a person who initiated the disciplinary proceedings against the appellant for disobeying his own orders; appointed his subordinate as an inquiry officer; appeared as a witness in the proceedings to prove the charges of disobedience of his orders; accepted the enquiry report; and further passed the order of punishment - i.e. dismissal of the appellant from service. The Disciplinary Authority himself appeared as a witness in the enquiry. Thus, the enquiry itself stood vitiated. The punishment of dismissal remained disproportionate to the proved delinquency; the Appellate Authority considered while passing the order, the past conduct of the appellant for the purpose of confirming the order of punishment passed by the Disciplinary Authority. It was thus held in the said decision that “Thus, the legal position emerges that if a person appears as a witness in disciplinary proceedings, he cannot be an inquiry officer nor can he pass the order of punishment as a disciplinary authority. This rule has been held to be sacred. An apprehension of bias operates as a disqualification for a person to act as adjudicator. No person can be a Judge in his own cause and no witness can certify that his own testimony is true. Any one who has personal interest in the disciplinary proceedings must keep himself away from such proceedings. The violation of the principles of natural justice renders the order null and void”

The decision rendered in the case of Delhi Fin Corporn and Anr. vs Rajiv Anand and Others reported in 2004 (11) SCC 625 is the only exception that can be carved out of the pronouncements that have been delivered on this principle. The words narrated in the said decision reads as “The doctrine that 'no man can be a judge in his own cause' can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a Corporation is named to be the authority, does not by itself bring into the operation the doctrine 'no man can be a judge in his own cause'. Of course in individual cases bias may be shown against a particular officer but in the absence of any proof of personal bias or connection merely because officers of a particular Corporation is named as the authority does not mean that those officers would be biased.” The Hon’ble Supreme Court in this decision somewhat tried to balance the apprehension of bias without there being any personal interest, but the same do not inspire much confidence as the common man’s apprehension of bias prevails on the local streets of our nation as well as to the roads leading to each and every Constitutional Authority.

Time and again there have been instances where the members of the elected bodies who are holding such positions to adjudicate, try to over power the democratic principles applicable in the constitution of such bodies by exercise of their powers impugning the decisions taken in a democratic manner by the bodies where they themselves are the members and the decisions of the bodies are against the will of such member. Such actions are always subject to judicial review and the scope of succeeding in such judicial reviews is always equal to India playing Pakistan in a World Cup Cricket Match, where Pakistan may do their best but it is not enough to beat India in a World Cup Match. So we conclude by saying that when there is this world cup (cause involving the judge) then India (Judiciary) beats Pakistan (Executive and Legislative) anyhow.

Thus, the reading of the maxim NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA when made applicable in the episode of staying of transfer by issuing suo-motu orders can be said to be an exercise which though legally do not restrain the judicial forum directly but with the involvement of the ingredient of personal interest, the said maxim is strict-senso to be made applicable and the orders of Justice Karnan lacks jurisdiction to stay his own transfer.

Lastly quoting an incidence of our mythology which brought shame to everyone on this land where the Daughter in Law of the Bharat Vansh-Draupadi was being dragged to the hall of the Hastinapur palace by catching hold of her open hairs. It was always open for Dhritrashtra-the then king to pass any order restraining the said act done by his sons Duryodhana and Dushasana without citing any legality on the same, as the same being an immoral act in the days when morality always weighed more than legality. But no such orders were passed and what we witnessed is the most shameful sight of Indian Mythology followed by the biggest bloodshed on Indian Soil. The entire incidence could have been avoided, be it the King Dhitrashtra pass an order restraining his sons but such orders never came as any such orders would have meant passing an order against his own sons meaning himself and this was the bias that has been recognized by way of this maxim “NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA” and the implementation of the same is saving us from such actions of the Legislative and Executive which may strip us naked of our fundamental and legal rights.

Vikas V Nair

May 08, 2016


Improvisation Courtesy : Ms. Charu Mathur. Advocate, Supreme Court of India
Topic Courtesy: Mr Jay B Trivedi. Advocate, Gujarat High Court

“Right of a Student to continue studies in his own school after a public examination”

Reading newspapers in the last few days bring back the moments of morning phone calls by friends inquiring about the situation of the merit list of different streams after passing of 10th Standard Examination. Few of them were thinking to change the school and rest were quite comfortable with the premises we had been there for around 10 years. Gone are those days and now is a more competitive scenario which is being updated daily reflecting the plight of the parents running all the globe for securing an admission for their child. The selected topic may throw some light on the issue of promotion to Class XI after passing of Class Xth SSC Examination. The entire discussion is divided in quite a few parts.

Whether it is a continuation of admission or it is an entire new admission or re-admission?

Prior to the decision of the Hon’ble Apex Court in the case of The Principal, Cambridge School and another Vs. Ms Payal Gupta and others reported in AIR 1996 SC 118, this question was unanswered or partly answered, but after the aforesaid decision it was made crystal clear that an admission to a higher standard of the same school can only be said to a continuation of admission and not re-admission. While answering this question the Hon’ble Supreme Court also went to the extent of comparing the scenario of a student failing in a public examination being permitted to continue with the same school with a student passing the same examination and being shown the gates of the school for higher education though the school offers higher education.

Why to have preferential treatments for a student?

The Hon’ble Apex Court in the case of Principal,, Kendriya Vidyalaya and Ors. Vs. Saurabh Chaudhary and Ors. Reported in AIR 2009 SC 608 has touched the very psychology which is part of a student’s mind while going ahead with the studies. Any individual prefers to stay in a familiar environment which knowingly or unknowingly helps lot of aspects of growth of an individual. Same is dealt with by the Hon’ble Apex Court in the aforesaid decision by going to the core by stating that changing a school to even 10 yards away from the old school shall take the essence of familiarity away from the student. Blackboards and benches of old schools are missed the most even today by us, then how can a student struggling to make huge career choices be allowed to miss that familiar faces merely on the aspect of achieving a few lesser marks. The Hon’ble Apex Court has also gone to the extent of holding the schools responsible too for those few lesser marks which may close the gates for a student in their own schools. Quoting the ratio it can be described as “No school is entitled to turn down a student for he/she being failed to get cut off level of marks for admission to class XI.”

Some views may differ too

The Hon’ble Gujarat High Court in the case of District Education Officer, Himmatnagar Vs. Rajvirsinh K. Rathod Reported in (2001)1GLR398 has tried to draw a line distinguishing the situations that may exist in secondary and higher secondary education. The very basis of such distinction is the change in faculties and their qualifications, choice of streams, change in way of teaching and so on which clearly draws a line between the same and thus in this decision the Hon’ble Gujarat High Court has gone to the extent of saying that it needs to be a fresh admission only and not merely promotion. Relying on the circular issued by the state government permitting some reservations for students from other schools the aforesaid decision was rendered by the Court.

Obligations underlined

Quoting the words of decision in the case of DAVIAN Parents Association Vs. State of Orissa reported in 2014(II)OLR547 highlighting the aspect of an obligation of a school towards its students it was said “The school authorities are obliged under law to allow all the students, who are prosecuting their studies in the same school, to prosecute their studies in the higher class bereft of marks secured in the last examination”. The aforesaid words illustrate the faith of a student in an institution where not only the student is responsible for his fate, but even the duty embodied on the school is reflecting.

Our Students versus Other Students

While discussion bye-laws of an institution permitting the Principal of the institution to grant admission to outside student the Hon’ble Allahabad High Court in the case of Arvind Kumar Sharma Vs. Central Board of Secondary Education and Anr. Reported in 1996 (28) ALR 632 drew a thin line between permission and obligation towards own student. Quoting the words it makes clear that such bye laws can be permissive in nature but cannot be at the cost of the other obligations. “It is clear that it is only permissive and it leaves it open to the Principal to admit any student in class XI who has passed Examination of X standard conducted by any other Board or Examination. It does not create any obligation on the Principal to admit outsiders and ignore the claim of their own students. Reliance placed on the aforesaid Bye-laws is wholly misplaced and is not helpful to the Respondents”


I Conclude

Finally I conclude by saying that a student shall have the privilege to complete the studies by sitting on the same bench from where he did start the same, excluding a situation where the institution may not want him for several other reasons which the student may give birth to. But otherwise as the Hon’ble Apex Court said Let the child study in the familiar atmosphere till the school provides. Quoting the above propositions and understanding a bit, I finish the discussion an state my words as under

“A student has all the right to continue his studies till the school can provide and the same is an obligation on the part of the institution too”


Thanks


Vikas Nair
Advocate, Gujarat High Court

Topic Courtesy: Chhotubhai (Materials and Special Discussions)
Restart Courtesy: Aditya Tripathi

Concept of Federalism in India

India getting together for a single cause is really a great sight to watch which generally happens only during Cricket Matches. But in the last few days the scenario seems to be changed here and the world has witnessed this change guided by non-violence movement which used to prevail only during the Pre-Independence struggle led by Gandhiji. The Anna Hazare movement for eradication of the evil of corruption got people at large on the streets. People even with the tiniest hope of removal of corruption from our system open heartedly welcomed this movement and tried to be a part of the system in one or the other way. The demand was for a body LOKPAL to be formed which could work independently and take care of the issues pertaining to corruption in the Government itself. This movement got the government heart beating and so finally they had to accept the bill prepared by the Civil Society under the guidance of Anna Hazare. But just before the final acceptance by Government there were just 3 issues which were to be sorted out. And one of the three issues was Appointment of Lokayukta in the states through the Lokpal. Having a first look on this point a common man would think about the issue in not accepting such a small point. But its the Federal Structure of our Constitution which made government think before accepting this point.

The Indian Constitution is a federal structure as a clearly visible demarcation of boundaries between central and the state government similar to that of America could be seen. This clearly reflects in the Legislative and Executive authority divided between the centre and the state. This is the first and foremost thought that strikes a common man on hearing Federalism.

There are some essentials for a traditional federal system, namely, Supremacy of the Constitution, Division of power between the Union and State Governments, Existence of an independent Judiciary, Rigidity in the procedure for the amendment of Constitution. Blending of these essentials in a constitution gets it to a federal structure.

A federal constitution establishes a duly polity with well defined horizons of authority between the Union and the States, to be exercised in the fields assigned to them respectively. They generally cannot intervene into authorities of each other. But whenever there is a common issue arising then the Judiciary comes into play if not mentioned in the constitution. If any dispute between the Union and State arises for which there is already a mention in the constitution then judiciary would mostly go by the constitution unless it feels the need of the hour to have a thought over it.

A Written Constitution is also an essential for a constitution to be federal. The essentials of Supremacy and Rigidity of the Constitution can be worked upon much easily on a written form of Constitution. It is not that any law is passed at the center but it is the Constitution itself that divides the Legislative and Executives between the Union and the States.

India is sometimes also claimed to be non-federal in matters where Center impinge upon the areas to be intervened by state only. It infringes the principle of federalism and hence also said to be in a unitary form of government. The phenomena of such unitary form of government arise only during the period of wars or emergency period.

An issue involved over the exercise of sovereign powers by the Indian states in the matter of State of West Bengal v/s Union of India for which the apex court held that the Indian Constitution did not propound the principle of absolute federalism.

In Gangaram Moolchandani v/s State of Rajasthan the Supreme Court said “Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely supremacy of the Constitution, division of power between the Union and States and existence of Independent Judiciary.”

In the case of Kesavananda Bharati v/s State of Kerala, the Supreme Court gave the ‘Basic Structure Doctrine’ in which it states that Parliament can in no terms alter the basic structure of the constitution like secularism, democracy, federalism and separation of powers.

The Supreme Court is an independent authority to declare the Acts of the Union and States ultra-vires if either of them entrenches the defined powers of each other.

So a very well written constitution has helped us maintain the federal structure granted to us by itself. So just barring certain situations Indian Constitution is a federal structure. 

Prevention of Communal & Targeted Violence Bill, 2011 : A Mockery??

“Having attracted criticism over some clauses of its draft of the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, the Sonia Gandhi-led National Advisory Council (NAC) on Wednesday 22^nd June decided to affect a number of amendments — 49 in total — to the earlier draft.”

This is what all have read in the newspapers of the very next day then would have come to know that there is some bill named Prevention of Communal and Targeted Violence (Access to Justice and Reparations), 2011. Then even having a look at the large number of amendments the council is about to make this would have brought a smile on a common man’s face and a usual thought of “kaaydo ghadvamaj atli taklif che to kemnu enu palan thase (how could we think of implementation of law where we are having such blunders in formation of a law itself)”

The definition of group as given in this act could be seen as the root of the controversy over this bill. Group as defined under Sec 3(e) of this act is ‘a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India.’ This could be easily read and understood as no protection to a member of the majority community is given under this act. This could also be interpreted as such communal violence is only initiated by the members of majority community and not by minority and even if a large number of majority community members bear the brunt of communal violence, they will not be victims of “targeted violence”.

Various other definitions under this act such as communal violence and victim as per Sec 3 (c) and 3 (j) are also somewhat difficult to understand or we can say are too easy to manipulate. Most of the definitions in this act revolve around the definition of group given under this act. So till we get a better definition for group under this act the act would be read just to favour the minority as per the claims of their being a minority.

The definition of Hostile Environment against a group as in Sec 3 (f) needs to be worked a lot. It means any intimidating or coercive action by a majority against a minority group by virtue of his or her association with that group and then five sub-clauses are given to cover the action that can create such hostile environment. And when the fifth sub-clause is read then it could create a confusion as it says ‘any other act, whether or not it amounts to an offence under this Act, that has the purpose or effect of creating an intimidating, hostile or offensive environment.’ Even any such video, pictures or any such material which could create any such offensive environment would be covered under this section. Thus with reference to this provision the producers of the movie Gadar would be punishable under this act. As there is visual of a train filled with dead bodies and some written comments which could be termed as offensive if we want. This sub-clause completely hands over the power of deciding whether the act committed is of such a nature or not to the deciding authority. But the problem is that no such authority has yet been finalised which could decide on whether the act is of such a nature or not.

Sec 8 of this act covers the term Hate Propaganda which as per this act is so broad that it would be difficult to separate any conduct in a public gathering or even any just above normal speech or behaviour by a person addressing public at large. Any such use of words or even any visual could lead a person to be found guilty of having Hate Propaganda. A speech that is made in a politically sensitive area may be qualified as hate propaganda to be knowingly directed against the people of the minority group and shall attract a punishment of three years as per section 115 of the Act. And this may also create differences in the application of law as a statement made in Gujarat can have different effect if made in Assam.  So first need would be to decide what act and upto what limits such act would be covered in the Section 8.

Sec 20 of this act says ‘The occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India and the Central Government may take such steps in accordance with the duties mentioned thereunder, as the nature and circumstances of the case so requires. It intends to arm the Centre with runaway powers to intervene in state affairs, creation of overlapping authorities and selective definition of victims. This leads to falling afoul of federal principles set out in the Constitution’s seventh schedule that distributes legislative powers between the Centre and the States.

Sec 74 if read widely it explains that a person who is found guilty under this act has the burden of proving his innocence which is against the very ethos of Criminal Justice system. i.e a person is innocent unless he is proved guilty.

The bill in its present form without any amendments would be a mockery against the core principles of criminal law. The questions that need to be answered in the form of the upcoming amendments in this law should also answer the unanimous power given to National Authority over State Authorities even over the objects mentioned in the state list of the constitution.

A balance is expected in the form of the amendments that are to be made such that we do not need to check whether the victim is from majority or minority community. We do not need to wait for the deciding authority (if constituted) to make statement whether the speech made by an individual is of coercive nature or not. We do not have to accept the decisions randomly made by the central government who may or may not know the current situation prevailing in that very state.

There are still a lot of queries to be pointed out in this bill. But for now let us hope that we may get answers to some of these queries in the form of amendments in the coming days. 

Law in My Life

Hello Friends,

Now I am loving LAW as I think its a gift to me by my Dad. Reading Law books is like just going through some of the conversations which i have heard in my very own House. So now just by reading it I am going through the theoretical aspect of law. So today onwards I start with my blog on Law which I read and also which I hope I understood.

Today just an Initiative thought by me. So an Inititiative taken by me. So just an introductory post to start off with. Rest will be working from Tomorrow