Saturday 29 September 2012

More Questions raised than Clarifications offered



Delivering the valedictory address at the sesquicentenary (150th year) celebration at the Madras High Court on September 8, President Pranab Mukherjee noted with concern:
“The separation of powers, long established as one of the basic features of our Constitution, ensures that each organ of government operates within its own sphere and none takes over functions assigned to the other.  It is the Constitution that is supreme. The laws are enacted by the legislature, the executive does the implementation, and the judiciary is the final interpreter of these laws.  The delicate balance of power enshrined in the Constitution should be maintained at all times.
However, a note of caution needs to be sounded.  Judicial activism should not lead to the Constitutional principles of separation of power getting eroded. Judicial pronouncements must respect the boundaries that separate the Legislature, Executive and Judiciary.
The principle of separation of powers is equally a principle of restraint.  While the exercise of powers of the legislature and executive are subject to judicial review, the only check on the judiciary’s exercise of powers is the self-imposed discipline and self-restraint.”
Chief Justice of India S.H. Kapadia on August 25 said judges should not govern the country or evolve policies, and they should apply the enforceability test on some verdicts like making sleep a fundamental right.
Doing some frank introspection on the judiciary’s functioning, he wondered what would happen if the executive refused to comply with its directives that might not be enforceable.
“Right to life, we have said, includes environmental protection, right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore enforceability.
“Questions which judges must ask are if it is capable of being enforced. Judges must apply enforceability test. Today if a judge proposes a policy matter, the government says we are not going to follow. Are you going by way of contempt or [to] implement it?” the CJI asked.
Delivering a lecture on “Jurisprudence of Constitutional Structure,” he was making an apparent reference to the recent Supreme Court judgment on police action against Baba Ramdev’s supporters on the Ramlila Maidan, in which “Right to Sleep” was declared a fundamental right.
“Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity and certainty enshrined in the basic principles of the Constitution have to be given weightage.”
Justice Kapadia said judges should go strictly by the constitutional principles which had clearly demarcated powers among the judiciary, the legislature and the executive.
These statements from the Head of the State, the President of India and the Chief Justice of India have at a time when they were intended not to join any public discourse at the national level, but borne out of serious concern over the increasing trend of the judiciary authoritatively infringing upon the domains of the executives, leading to cascading impacts on industry, economy and foreign relations of the nation and the very democratic fabric of the country.
Meanwhile, the Supreme Court on Sep.17 refused to entertain a government's plea not to hear a PIL on alleged irregularities in the allocation of coal blocks and sought an explanation whether guidelines were flouted in allotments.
The apex court, which turned down the Centre's contention that the petition based on the CAG report which is under the scrutiny of Parliament's PAC cannot be considered, said "the petitioner has sought to point out illegality and there is nothing wrong in it."
A bench comprising justices R M Lodha and A R Dave said the prayer seeking a direction for alleged "unconstitutional" and "arbitrary" allocation of coal blocks "requires explanation from you (centre) because it is not the distribution of state's property in small scale but it talks about tons of largesse."
The bench rejected Solicitor General Rohinton Nariman's contention that the petition based on the CAG report was "premature" as the Public Accounts Committee (PAC) headed by senior BJP leader Murli Manohar Joshi was slated to examine it from September 20 about the correctness of allocation.
"Nevertheless, keeping in view the CAG is a constitutional functionary and whether its report is final or not, it has a value. And here the petitioner has sought to bring point to show illegality and there is nothing wrong.
"Least are we concerned with the correctness of report which will be examined by the PAC or Parliament. But we can rely on it (CAG report)," the bench said adding that "these are different exercises (before the court and PAC)."
"There is a difference in the exercise done by the Public Accounts Committee (PAC). Parliament and PAC can proceed with the issue on the basis of the CAG report. We don't want to encroach upon their exercise but the petition raises different things altogether. There are sufficient averments which require explanation from you," the court said.
Issuing the notice to the Government, the bench also made it clear that it is confining itself only to the aspect of guidelines formulated by the Centre for allocation of coal blocks and directed the Secretary, Ministry of Coal, file a detailed affidavit within eight weeks on the guidelines and policies followed on the subject of allocation of coal blocks.
The court passed the order while hearing a PIL filed by advocate M L Sharma on the alleged coal blocks scam which has purportedly caused a huge loss to public exchequer.
The bench also sought to know whether the guidelines for allocation of coal blocks were strictly followed and whether by their allocation, the objectives of policies were realised.
The bench wanted to know what were the hindrances for not following the policy of "competitive bidding" adopted by it in 2004 for allocation of the coal blocks.
Lastly, the court sought to know what steps were proposed to be taken against the allottees who have not adhered to the terms of allocation or have breached the agreement.
During the hearing, the Solicitor General informed the bench that the criminality aspect of the alleged irregularities in the coal block allocation was already being looked into by the CBI.
"We are at present touching the allocation part and no other thing," the bench said. "Our focus is on the issue of guidelines followed in the allocation of coal blocks," it added.
In spite of the Solicitor General pleading that the CAG report on coal allocation submitted to the Parliament is to be taken up for examination by the Public Accounts Committee from Sep.20 about the correctness of the allocation, and hence the petition based on the CAG report was ‘presumptive’, the court was impatient and had refused to entertain the plea the court had said ‘the CAG is a constitutional functionary’ ‘Least are we concerned with the correctness of the report’ . “But we can rely on it”, which is patently contradictory. Once again they have asked why the policy of ‘competitive bidding’ was not followed. It is here the points raised by Union Minister Kapil Sibal, also a Senior Counsel of the Supreme Court’ are relevant (See page No.9 of this issue)
If the institution of the CAG is a ‘constitutional functionary’ what are the Executive and Parliament? If the CAG report is ipso facto sacrosanct, why should its correctness or otherwise be examined by the PAC and Parliament?
The observations of the Supreme Court raises more such questions than it clarifies!

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