Rule of Law is extension of natural justice without discrimination

Law, Rule of Law, Natural Justice Judicial activism is desirable in a democracy, but it should not water down the Natural Justice which forms the core and crux of Rule of Law. The Law holds no discrimination and equality of all persons before Law is a basic right, a human right, a fundamental ingredient of Natural Justice. The established principle of Criminal jurisprudence that in the absence of specific countervailing factors, there is a general perception in favour of bail in all cognizable cases. This legal covenant is a natural extension of Rule of Law that presumes that all are innocent until proved guilty. The maxim “let hundred guilty escape punishments, but not a single innocent be found guilty.” In a recent case involving grant of bail to Ms Kannimozhi, one of the accused in the 2 G scam, the CBI Court despite not opposing bail of one accused woman was denied bail by stating that the benefit of Sec 437 Cr.PC was not available to her as she belonged to the upper strata of the Society. Sec 437 Cr.PC does not differentiate between classes of women. The benefit of gender justice seems to have been interpreted differently by the Judge when there is no distinction in the Constitution or the code of Criminal procedure regarding class distinction. This is a mistaken conclusion. Further, the Judge says that the ends of Justice would be better served, by incarceration in jail during the trial as the accused can influence the witnesses. No where in the IPC or Cr.PC such a course is prescribed. The charge sheet is filed, and the case against her is mostly circumstantial, evidence being the various records which are in Court’s custody, and the chances of intimidation of witness looks far fetched. Further more, the Supreme Court had asked her to appeal for bail after the filing of the charge sheet. The same judge who denied her bail gave her good certificate by saying that he had to reluctantly deny her bail as he found her dignified in her conduct within the Court room. The Judge has quoted the Sathyam judgement of the Supreme Court for refusing bail. The same Supreme Court has enlarged all the accused in Sathyam case including Ramalinga Raju. Therefore, the ends of Justice would be better served,if the legal issues which vary from case to case are decided on merits. The judiciary should not get swayed by public opinion, and public sentiment, as Public perception is based on little known facts and liable to change.

Democracy is for the People

The Athenians, was a Country which followed the democratic norms just when the Christian era was about to commence. Periclus, was an important functionary of Athens, and under him, we had the “the age of Pericles under Athenian history was a golden age, 2000 years ago.” Athens practiced democracy, or the form of collective decision, in the remote age of History. After the Athenias had driven out the tyrant Hippias in 510BC, they tried to work out methods to prevent the establishment of anther tyranny. Once a Year they set up an opportunity for a vote that was aimed not at electing someone, but at exiling someone. Each Athenian could write down the name of a Politician whom one felt was growing too dangerously powerful for the good of the State. If a total of 6,000 votes were cast and one man received a majority, he was forced to remain away from Athens for ten Years. It was not a disgraceful exile; his property was not confiscated, his family was not mistreated, and, when the decade was up, he was welcomed back. He understood that he had been sent away to be kept from the temptation of trying to upset the democracy. Athenians practiced democracy, when they had no Constitution, and even perhaps a similar one to Act of Settlement of 1701. They did not have the ‘Rule of Law’ which connote that no body was above the Law. They practiced democracy, 2000 years ago in the spirit of for the People, by the People, to the People. In modern day India, a democratic Republic, with a written Constitution, and a Powerful judiciary, an active media, could not practice the perceived democracy which Athens professed and followed! The commitment to democracy of Athens was inborn while Indian democracy is enthused. There, lies the difference. Yet, some protagonists wanting moderation in electoral reform by introducing, Recall of Elected Representative, Referendum to gauge Public opinion, have failed to perceive that we have universal adult franchise in India. Even the percentage of voting in an election is generally below the 50% of eligible voters. We can move with the times, but we cannot run ahead.

Judicial activism and Rule of Law

Today, one of the complex causes that affect the common man is the delivery system of Justice, which if delayed is tantamount to justice denied. The judicial reforms are overdue. The one crucial aspect of judicial inter-dependence is the continuity in thought, expression, expeditious disposal of Cases. The Supreme Court, in the Keshavanatha Bharati case, reversed the Special bench’s ruling that Chapter III or the fundamental rights are paramount, and hence, Parliament under Article 368 of the Constitution could not alter them. In the Bharati case, the Court propounded the ‘basic structure doctrine’ and ruled that any article of the Constitution which did not affect the basic structure could be amended by the Parliament, holding that there were no” implied limitations of the amending power by Parliament”. Was the fundamental Rights, inter alia, not a basic right extended to the citizen. While observing that ‘judicial review’ formed a crucial edifice of the ‘basic structure’ , the learned Judges did not look beyond time, to consider what would happen in posterity, if the state unnecessarily encroaches on the Citizen’s right? Will not habeas corpus right devalued, if fundamental rights are curtailed? Writ of Quo Warranto? Writ of mandamus? If Parliament has overwhelming 2/3rd majority, can’t there not be a arbitrary approach which results in removal of the law on Rights guaranteed , as the Parliament is empowered to change or cause amendment to any Article or clause in the Constitution. When the government subverted the judicial review by giving blanket cover to certain amendments placed in 9th Schedule, Court clearly made it known that 9th Schedule came under Judicial Review. Emergency in 1976 nullified Keshavanda Bharati judgment by inserting sub para (4) to Art 386 limiting the Court’s interference and sub clause 5 of 386 placing the sovereignty of Parliament paramount. However, a bench headed by Justice Y V Chandrachud in Minerva Mills case (1980) held clause (4) and (5) of Article 386 as invalid. The Janata Government under Morarji Desai passed the 44th amendment, deleting the Right to Property from Art 19(l)(f) and 31 of Part III and was made into Artcile 300-C. It excluded remedy under Art 32 of the Indian Constitution, as Right to Property ceased to be a Fundamental Right. The High Court of Madras stayed the execution of 3 convicts of late Rajiv Gandhi citing undue delay at the hands of the president for deciding their ‘mercy petitions’. The Right of clemency was vested in the President. It was subjective. However, the SC held that President could not exercise that power independently as he was always bound by the advice of the Council of Ministers.Power of granting clemency was a power vested with the President, to be used by him in discretion. The Council of Ministers come when Policy decisions are involved. After SC has confirmed a death sentence, on the basis of theory of seperation of Powers, President was the head of the three reservoirs. Hence his power was paramount. When politicians deal with this provision, discretion is not exercised, she is taking a political decision. Supreme Court need to revisit this Judgement. Various Chief justices of the Supreme Court had stated that the SC will sink under the weight of the cases pending disposal. There is a case which is more than 400 years old, stayed by the Supreme Court (Ayodhya Case). Bhopal Gas tragedy case? There was another case which was adjudicated after 40 years. The longevity of cases range from 20 years to one year. Would the action or adjudication go irrelevant because of time consumption beyond one’s reach, time and capability? Justice V R Krishna Iyer in Indira gandhi Vs Raj Narain case, reserved the judgement after hearing both the parties. Nani Palkhiwala told him that if he did not give stay immediately, there would be vaccum as the stay of the judgement of Allahabad HC expired the previous day. Justice Krishna Iyer made a revelation that if an appeal is preferred, and if stay is granted, it has restrospective effect. From the date of hearing of the case, the order becomes valid. By the same token, President's rejection of Mercy petition takes effect retrospectively but since it is execution, it is a prospective exercise that has to be under taken. The time gap is to be ignored because you cannot set a limit for clemency. It is a discretion. The most important abuse of litigation is the appeal to Supreme Court preferred by the Insurance Companies against Motor Accident Tribunal judgments to deprive paying compensation under the sly. They are held up for years in the SC. Justice V R Krishna Iyer introduced what is called the ‘Public Interest Litigation’ in what was known as Ratlam Municipality case where Varachand & Others was the petitioners. Traditional rules of ‘locus standi’ were the hall mark of a right to file a writ petition. Relaxing procedural Rules, if the Society as a whole rather than a specific individual feels aggrieved, Social action litigation or Public interest litigation could be resorted to. ‘Epistolary jurisdiction’ of United States was the precedence bed rock on which Justice Krishna Iyer based his new theory, which was known as ‘Judicial activism’. A step taken in a new direction is fraught with the danger of being a likely step in the wrong direction. Pressure on the Courts is already overloaded. The pending cases are mounting. Unfettered jurisdiction to review anything and everything is not good in a flourishing democracy like ours which has theory of separation of Powers. Under Art 32 and Art 136, a citizen can approach the Supreme Court including filing PIL if it involves fundamental rights. High Courts have wider powers that under Art 226 and 227, any question of law can be raised under a writ petition. Court and the Judges need to make critical subjective and objective assessment of their role as torch bearers of democracy. “Reading down” action of a judge which depend upon outlook or philosophy of a Judge can change a cause and its remedy: if certain provision of Law construed in one way, consistent with the Constitution, and another renders the construction unconstitutional, the judge rules in favour of the first, which is constitutional is based on Judge’s reading of the vocabulary. Accountability is an essential part of the Rule of Law. It has to accept checks and balances and does not have unfettered rights. Self restraint is a very important rule than an exception.