SC issues directions to the High Court(s) for Appointing Employees

Recognising the importance of a transparent procedure to be adopted by the High Courts in appointing employees, the Supreme Court of India (“Supreme Court”) has recently issued certain directions regarding the same (Renu & Ors. v. District & Sessions Judge, Tis Hazari & Anr.)

In the judgment delivered by Justice B.S. Chauhan (for three –judge bench which also included Justice J. Chelameswar and M.Y. Eqbal), it has been emphasised that the administrative power exercised by the Chief Justice of a High Court under Article 229 Constitution of India, 1950 (“Constitution”) should be in conformity with Articles 14 and 16. That is, Chief Justice cannot make appointments in contravention with Statutory Rules, and has to be in consonance with the Constitution.

Article 229 of the Constitution provides that ‘officers and servants’ of the High Court shall be made by the Chief Justice of that Court or such Judge or officer of the Court as he may direct. Article 235 of the Constitution confers power upon the concerned High Court to exercise administrative control over subordinate courts. Emphasising that employment (of all the classes) in the High Court or courts subordinate to it falls within the definition of ‘public employment’, it was held that the same should be carried through in a constitutional manner.

Following are the directions which were issued by the court in this judgment:

i)             All High Courts are requested to re-examine the statutory rules dealing with the appointment of staff in the High Court as well as in the subordinate courts and in case any of the rule is not in conformity and consonance with the provisions of Articles 14 and 16 of the Constitution, the same may be modified.

Medium of Instruction in Primary School: Can it be made mandatory by the Government?

“Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?”

Most likely, one would answer this question affirmatively. The answer, however, may not be that easy. A division bench of the Supreme Court of India (“Supreme Court”) has, in a set of writ petitions [State of Karnataka v. The Associated Management of (Govt. Recognized unaided English medium) Primary and Secondary Schools & Ors], referred this question to a Constitutional Bench. Whatever will be the outcome of the case, the same will definitely have far reaching consequences on primary education in the country. 

The present case, by means of an appeal against the division bench judgment of the Karnataka High Court (“High Court”), had been filed by the State of Karnataka.

(Image Courtesy: Google Images)

Factual Background:

In 1982, Government of Karnataka (“State Government”) issued an order thereby prescribing that Kannada shall be the sole first language from 1^st standard of primary school itself. The order was challenged before the High Court, which held this as unconstitutional.  Thereafter, in 1989, State Government, vide an order (“1989 Order”), made “mother tongue” as the medium of instruction at the primary school level. Along with this, State Government made it obligatory for one to take “Kannada” as second language, if the same has not been chosen as the first language. The 1989 order was challenged before the Supreme Court in English Medium Students Parents Association vs.  The State of Karnataka & Ors, which consequently upheld it.

Following this, in 1994, State Government came up with another order (“1994 Order”) which, after revising the policy, made the ‘medium of instruction’ from 1^st to 4^th standard in all schools recognised by the State Government as either Kannada or mother tongue. Contending 1994 order as violative of Articles 14, 19(1)(a), 21, 29(2) and 30(1) of the Constitution of India (“Constitution”), writ petitions were filed before the High Court. By its order, full bench of the High Court quashed the disputed clause No. 2, 3, 6 and 8 of the 1994 Order with its application to schools other than the schools run or aided by the Government. It is against this order of the High Court that the State Government has preferred an appeal before the Supreme Court, i.e., the present case.

What is the issue?

On one hand, it is the State Government that wants schools recognised by it to impart primary education in mother tongue or Kannda. On the other hand, there is a group which [consisting of parents and the schools] wishes to impart such primary education in English language. If one does not want one’s wards to study in a particular language; or, if one wants them to study in a particular language, can such wish be declined by the State Government? This is, in fact, a very vital question.

On behalf of the State Government, arguments were made by P.P.Rao, Senior Advocate and an eminent constitutional lawyer. He argued that the High Court failed to notice the mandate behind Article 350A of the Constitution, and further argued that the High Court ignored the decision of Supreme Court in English Medium Students Parents Association vs.  The State of Karnataka & Ors

On the other hand, counsel for the respondent contended that English Medium Students Parents Association case did not go into the question of medium of instruction. Rather, it dealt only with question of mother tongue/Kannada as one of the language. However, Supreme Court, in the present petition, held that the English Medium Students Parents Association case dealt with the question pertaining to the “medium of instruction”.

In conclusion, following are the significant questions that will be decided by the Constitutional Bench:

(i)What does Mother tongue mean? If it referred to as the language in which the child is comfortable with, then who will decide the same?

(ii) Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?

(iii) Does  the  imposition  of  mother  tongue  in  any  way affects  the  fundamental  rights  under  Article  14,  19, 29 and 30 of the Constitution?

(iv) Whether  the  Government  recognized  schools  are inclusive  of  both  government-aided  schools  and private & unaided schools?

(v) Whether  the  State  can  by  virtue  of  Article  350-A  of the  Constitution  compel  the  linguistic  minorities  to choose  their  mother  tongue  only  as  medium  of instruction in primary schools?

Who can prefer an appeal before the Supreme Court

A landmark legal development has been the United States Supreme Court's branding of the contentious Federal Defence of Marriage Act (DOMA) as unconstitutional in Hollingsworthv. Perry. While doing so it also rejected an appeal from a Californian lower court's decision invalidating Proposition 8, a statute that sought to discriminate against homosexual people. In fact, the court refused to go into the merits of Proposition 8 stating that the appellants did not have the requisite locus standi to invoke the court's (Supreme Court's) jurisdiction as the appeal was not preferred by the State of California but by a group of private individuals who had sponsored the proposition.

The decision is particularly important in the Indian context as an appeal against the Delhi High Court's 2009 Naz Foundation judgment is pending before the Indian Supreme Court. In that decision the High Court deemed Section 377 of the Indian Penal Code to be unconstitutional for criminalizing sexual relations between consenting homosexual adults. The interesting point about the appeal is that the original respondents to the case, The National Capital of Delhi and The Union of India haven't preferred it, with the Attorney General unequivocally stating the Government's full acceptance of the High Court's verdict. Who then are the appellants? They are a motley of private individuals from different sections of the society, thus giving rise to obvious jurisdictional issues. In light of the US Supreme Court verdict the Indian Supreme Court may not even go into the merits of the case as the appellants, not being the state but private individuals, do not have the right to enforce the statute they seek to defend, thereby invalidating their locus standi. However, will the Supreme Court follow this route? In an erudite and brilliantly written piece Mr. Vikram Raghavan, a senior counsel with the World Bank, has sought to elucidate this interesting legal principle.

Regularisation of Co-terminus employment: Voilative of Article 14 and 16 of the Constitution

Co-terminus employment, in its essence, can be understood as the continuance of an employment contingent upon the employment tenure of any other person.[1]The question, whether such employees have a right to claim permanent employment, has recently been dealt by the Supreme Court of India (“Supreme Court”) in The Chief Executive Officer, Pondicherry Khadi and Village Industries Board & Ors v. K. Aroquia Radja & Ors.

In this case, after being persuaded by the Chairman, Pondicherry Khadi and Village Industries Board (“Board”), Government of Pondicherry (“Government”) appointed respondents on a co-terminus basis and their employment was to coincide with the tenure of the Chairman of the Board. The said condition was mentioned both in the approval order by the government and the terms of employment formulated by the Board. However, Chairman of the Board sent a proposal to the government for receiving Governor’s approval for the absorption of these employees (“respondents”) against certain vacant posts; but, the proposal was rejected by the government. Another similar proposal, this time directly to the Lt. Governor of Puducherry (“Governor”), was sent by Chairman of the Board. This time, proposal was approved by the Governor. In the meantime, Chairman of the Board resigned from the post. Since the Board did not complied with the approval of the Governor for the absorption of the respondents, the latter filed a writ petition before the High Court of Madras (“High Court”). Single judge Bench of the High Court decided the petition in favour of the employees, which was then confirmed by the Division Bench. Hence, this matter came before the Supreme Court.

While deciding this case, Supreme Court opined that the respondent (“respondents before the Supreme Court”) have been selected through the Employment Exchange or through any procedure in which they were required to compete against other eligible candidates.[2]Further, Supreme Court held that, factual position as regards co-terminus employment could not be placed before the Governor since proposal was not sent to him via government.[3] Supreme Court also emphasised the fact that Governor is supposed to act on the advice of the Council of Ministers.

Supreme Court referred to its judgment in State of Karnataka and Ors. Vs. Umadevi (3) and Ors. 2006 (4) SCC 1, wherein it held that lower bargaining power is not a sufficient ground for a deviation from constitutional scheme of appointment. Supreme Court, in this case, held that:

“Absorption, regularization or permanent continuance of temporary, contractual, casual, daily-wage or adhoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment is impermissible and violative of Article 14 and 16 of the Constitution of India”

Supreme Court also referred to the judgment in the case of State of Gujarat and Anr. Vs. P.J. Kampavat and Ors., 1992 (3) SCC 226, wherein court dealt with the similar situation of nature of a temporary employment.

Having considered above positions of law, Supreme Court, in The Chief Executive Officer, Pondicherry Khadi and Village Industries Board & Ors v. K. Aroquia Radja & Ors., allowed the appeals, i.e., which is against the co-terminus employees. It is because of the fact that their employment was co-terminus with the tenure of the Chairman of the Board. And since, Chairman has resigned from the post, the employment of the respondents can be terminated.

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[1] It should also be the form of employment which can be in existence as long as a given “fact” is in existence, irrespective of whether such “fact” is the employment of another person or not. For example, an employment that is co-terminus with the existence of a project work.

[2] See Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors., 1996 (6) SCC 216 (which recognises the recruitment through the employment exchanges as the principle mode of recruitment)

[3] In Union of India Vs. Dharam Pal reported in  2009 (4) SCC 170, this court held that the requirement of being employed through proper channel could not be relaxed in an  arbitrary and cavalier manner for the benefit of a few persons.

Compensation Under Public Law Remedy – A Review of Uphaar Cinema Judgment

The decision of Supreme Court in case as regards Uphaar Cinema tragedy which occurred back in the year 1997 may have come along with several criticisms for reducing the amount of compensation. But, it has been able to throw light on certain imperative aspects of law, specifically the recourse which shall be adopted while awarding compensation under Public Law Remedy. Public Law remedy, as distinct from Private Law Remedy, can be exercised by the Constitutional Courts (High Courts and Supreme Court) under Article 226 and 32 of the Constitution of India, 1950. The judgment encompasses two parts, first part deals with the liability of the officials under Public Law, and secondly it deals with the amount of compensation which can be awarded under Public Law Remedy.

The appeals have been filed by Municipal Corporation of Delhi, Commissioner of Police (Licensing Authority) and M/s. Ansal Theatre and Clubotels Pvt. Ltd. These appeals are against order of Delhi High Court.

A separate judgment was delivered by Justice K.S. Radhakrishnan wherein he discussed the issue as regards Constitutional Tort.

Public Law Remedy

A Public Law can be defined as those laws which construct a relationship between Individuals and the state. Constitution is one such kind of law, and remedy provided therein under such law can be termed as a Public Law Remedy. In the instant case also, original suit had been filed before the Delhi High Court under Article 226 of the Constitution, on the ground that impugned irregularities and the negligence on the part of the appellants led to the infringement of Right to Life as provided under Article 21 of the Indian Constitution. The remedy provided by the court under such category will not be categorised under ordinary tort law, rather it would be categorised under Constitutional Tort Law. Supreme Court in this case relied on the judgment of Rabindra Nath Ghosal Vs. University of Calcutta and Ors. (2002) 7 SCC 478, where it had been held by the court that by means of moulding relief under Article 32 or 226 penalises the wrong doer or the state monetarily for the wrong which they have committed. Further, court was of the firm view that before any action can be taken against state, it shall be unquestionably being shown that the acts of the public functionaries were arbitrary and capricious that eventually left victim helpless.

Extent of the Liability of Public Functionaries under Public Law Remedy

In the instant case, court discussed its judgment in Rajkot Municipal Corporation v. M.J. Nakum (1997) 9 SCC 552, wherein it had been held by the court that a mere omission to do something which cannot reasonably give rise to a legal action against the state. Court relied on this judgment with reference to the contentions put forth by the MCD for exonerating it from all the claims. It can be concluded from this judgment that in order to succeed in a claim against the state under Public Law Remedy, claimant has to prove his claim substantially. A Canadian Judgment in the case of John Just v. Her Majesty The Queen -- (1989) 2 SCR 1228 was discussed by the court along with some English and other Canadian Cases. In this Case, Canadian Supreme Court had held that –

“...In order for a private duty to arise in this case, the plaintiff would have to establish that the Rockwork Section, having exercised its discretion as to the manner or frequency of inspection, carried out the inspection without reasonable care or at all. There is no evidence or indeed allegation in this regard......I would therefore dismiss the appeal.”

Supreme Court was of the view that just because an authority owes a public law duty under any statue, it cannot in any way mean that such a statue will give rise to a duty of care, The wordings of the judgment can be read as follows –

“A duty of care at common law can be derived from the authority's duty in public law to give proper consideration to the question" whether to exercise power or not (p.411). This public law duty cannot by itself give rise to a duty of care. A public body almost always has a duty in public law to consider whether it should exercise its powers but that did not mean that it necessarily owed a duty of care which might require that the power should be actually exercised............ An absolute rule to provide compensation would increase the burden on public funds”

Eventually, MCD was exonerated from its liability on the ground that an authority cannot in any manner be held liable merely because of the reason that it had discharge some duty, or it failed to discharge its duty in a proper manner. The same should be grave. MCD’s liability was only limited to the action which it ought to have taken against the parapet wall raised by the Licensees. At the time when the wall was raised, MCD was not the sanctioning authority, instead PWD was responsible. And by the time MCD was conferred with this sanctioning power, the wall was already in existence for some 20 years. And this turned out to be the prime factual point which eventually favoured MCD. Nonetheless, this did not exonerate Delhi Vidyut Board (“DVB”) and Licensees. Also, MCD was exonerated because parapet wall did not turn out be the prime reason for the tragedy to take place. Rather, it was the inside construction carried out by the Licensees in the hall.

Amount of Compensation under Public Law

While dealing with this matter, court came across the calculation carried out by the Delhi High Court while awarding damages to the claimant. High Court framed out the average income of the deceased persons, and thereafter multiplied it with the digit 15 in order to conclude the final amount to be awarded to each of the claimants. In this matter, High Court awarded Rs. 18 lakhs to the legal heirs of those deceased aged 20 years or more, and Rs. 15 lakhs to the legal heirs of those deceased persons aged 20 years or less. Supreme Court put itself in front of a question that whether the impugned method adopted by the High Court in awarding compensation could have actually been carried out by means of a Public Law Remedy under Article 32 and 226 of the Constitution. The nature of compensation awarded under Public Law Remedy is palliative in nature, and the same cannot be equated with the damages under civil law. A person can approach a civil court if he is not satisfied with the compensation under Public Law Remedy. This position can be derived from the stand of Supreme Court in the case of Rudul Sah vs. State of Bihar [1983 (4) SCC 141, and the same line of reasoning can be found in the case of Sube Singh vs. State of Haryana [2006 (3) SCC 178]. Further, Court while discussing the issue of compensation under Public Law in the case of Nilabati Behera alias Lalita Behera vs. State of Orissa [1993 (2) SCC 746]

“The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

Supreme Court, in the case, was of the opinion that considerable amount of compensation by means of Public Law Remedy is not safe and this turned out to be the reason for the reduction of compensation by the Supreme Court. Nonetheless, Supreme Court made arrangements for the speedily. In determining the amount of compensation, factors which play crucial role are

The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses)

Reference as to these criterion can be made to the Judgment of Supreme Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121

But, the same amount shall exclusively be borne by the Licensees i.e. Theatre Owner.

Punitive Damages

Punitive damages are also known as exemplary damages, and are awarded so as to deter the defendant from carrying out any such action in future. In the instant case, Delhi High Court awarded Rs. 2.5 crore to the claimants by means of Punitive Damages. But this view of the High Court was not appreciated by the Supreme Court. High Court, while calculating the damages, took into account the 52 seats which had additionally been installed in the theatre. But, High Court ignored that fact that sanction was given to the installation of 37 seats by the Delhi High Court at the time of installation. Hence, Supreme Court calculated the benefit which was derived out by the theatre owners in the between the period 1979-1996, which eventually reduced the damages from Rs. 2.5 crore to Rs. 25 Lakhs.

Separate Judgment of Justice K.S. Radhakrishnan

The separate judgment of Justice Radhakrishnan dealt with the issue of Constitutional Tort. He aptly pointed out the shortcomings in the existing remedy under Public Law, and recommended that a specific legislation is urgently required so as to address the compensation claim under Public Law. He opined that most of the cases under Public Law which come before the court are very often based on violation of personal liberty, right to life or human rights.

Sovereign Immunity

Sovereign Immunity is a legal concept which depicts that a state cannot commit any wrong. But, there can be circumstances when state can be held liable for the wrongs committed by its functionaries, and for those acts no sovereign immunity can be claimed. In the absence of action against state, fundamental rights may act only as a unresponsive provisions. This issue was discussed by Justice Radhakrishnan, and he referred to the judgments of State of Rajasthan v. Vidyawati AIR 1962 SC 933, Kasturi Lal v. State of U.P. AIR 1965 SC 1039 to signify that there is a distinction between sovereign functions and non-sovereign functions of the state. While, state cannot be held liable for the former, it can incontestably be held liable for the latter. In N. Nagendra Rao v. State of A.P., AIR 1994 SC 2663, it had been held by the Supreme Court that in modern era, emphasis is more on the liberty, equality and rule of law and less emphasis is on the efficiency and dignity of the state as a juristic person in comparison to the former. Further, court in this case was of the view that when public official can be held liable in their personal capacity, there is no reason why state cannot be held liable for the same.

Constitutional Tort

Constitutional Tort, according to Justice Radhakrishnan, found its expression in the case of Devaki Nandan Prasad v. State of Bihar 1983 (4) SCC 20, For this purpose, case of Khatri & Others v. State of Bihar & Others (1981) 1 SCC 627, where a claim was brought before the court for the infringement of fundamental right enshrined under Article 21 of the Constitution.

Other Judgments - Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, Bhim Singh v. State of J. & K. (AIR 1986 SC 494), Saheli v. Commissioner of Police, Delhi, (AIR 1990 SC 513), Inder Singh v. State of Punjab (AIR 1995 SC 1949), Radha Bai v. Union Territory of Pondicherry AIR 1995 SC 1476, Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, Gudalure M.J. Cherian v. Union of India 1995 Supp (3) SCC 387, Sube Singh v. State of Haryana 2006 (3) SCC 178

In other words, it would not be wrong to say that sovereign immunity cannot be claimed for the cases involving violation of fundamental rights. This position of law can be found in the case of Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), where in it had been held by the court that a remedy provided in the form of fundamental rights is based on the strict liability of the state, and the same cannot be compared with the remedies provided under private law, or in the words of the court –

“It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution."

At the same, no strait jacket formula can be applied in computation of the compensation for claim made under Public Law (D.K. Basu vs. Union of India (1997) 1 SCC 416). And the remedy shall only be invoked under special and extreme circumstances where grave violation of fundamental rights has been proved.

abhinav.s@nujs.edu

"Aarakshan" - Ban imposed by UP Government and the take of Supreme Court on it

Much hyped movie “Aarakshan” has last been released throughout the country including Andhra Pradesh, UP and Punjab, states which had earlier imposed a ban on the movie in the light of maintaining law and order situation in the state. But, eventually they had to put the ban off. Andhra Pradesh and Punjab put the ban off on their own, while the ban was removed from the state UP following Supreme Court judgment in the case of M/S Prakash Jha Productions & Ors v. Union of India & Ors. The counsel for the petitioner was well known lawyer Mr. Harish Salve who handsomely convinced the court to remove the ban on the basis of its unconstitutionality. One of the reliefs which was sought by the petitioner was to strike down the provision mentioned therein under Section 6 (1) of the U.P. Cinemas (Regulation) Act, 1955. Another relief which was sought was to remove the ban from these three states as mentioned above. Court didn’t take into account the ban imposed in the state of Punjab and Andhra Pradesh because they had removed the ban at a later stage, which made petition against them infructuous.

Section 6 (1) of the U.P. Cinemas (Regulation) Act, 1955 states that -

“The State Government, in respect of the whole of the State of Uttar Pradesh or any part thereof,and the District Magistrate in respect of the district within his jurisdiction may, if it or he, as thecase may be, is of opinion that any film which is being publicly exhibited, is likely to cause a breach of the peace, by order, suspend the exhibition of the films and thereupon the films shall not during such suspension be exhibited in the State, part or the district concerned, notwithstandingthe certificate granted under the Cinematograph Act, 1952.”

From the wordings of the above act, it would not be difficult to conclude that a ban under this act can only be imposed once movie is exhibited publicly. In the instant case, no exhibition had taken place at the time when the ban was imposed over it which makes the act of the government ultra vires.

“A bare perusal of the aforesaid provision in Section 6 of the Act would make it crystal-clear that the power vested therein could be exercised by the State under the said provision when a filmwhich is being publicly exhibited could likely cause a breach of peace. Only in such circumstance and event, an order could be passed suspending the exhibition of the film.”

“The expression 'being publicly exhibited' and the word 'suspension' are relevant for our purpose and, therefore, we are giving emphasis on the aforesaid expression and the word. When it is said that a film is being publicly exhibited, it definitely pre- supposes a meaning that the film is being exhibited for public and in doing so if it is found to likely to cause breach of peace then in thatevent such a power could be exercised by the State Government. Such an extra-ordinary power cannot be exercised with regard to a film which is yet to be exhibited openly and publicly in aparticular State. This view that we have taken is also fortified from the use of the word 'suspension' in the said section. The word `suspension' envisages something functional or something which is being shown or is running. Suspension is always a temporary phase, which gets obliterated as and when the previous position is restored.”

Further, it had been argued on behalf of the petitioner that the impugned ban violated Fundamental Right mentioned therein under Article 19(1) of the Indian Constitution. Counsel on behalf of the state government contended that ban, if removed, would cause adverse effect on the law and order situation in the state. The movie was passed by the Central Board of Film Certification, and the same was viewed by an expert committee which included members of SC,ST and OBC communities and they had willingly certified the movie subject to the deletion of word “dalit” from the 1^st part of the movie, and the movie was certified under the head “social”. Further court held that this committee has no power to impose pre-censorship once the movie had been passed by the board with an examining committee of the board. Despite this, the disputed word was removed by the producer voluntarily and thereafter it was released throughout the country. Counsel for the state argued that since the movie had been viewed by the expert committee, it can said to have been exhibited. But, court rejected this very argument on the ground that movie has to be publicly exhibited and this was not carried out in the present case. Further, the very fact that the movie had been released in all other state except UP and had been running smoothly refuted the arguments made by the counsel of the state government. It had been stated by the counsel that reservation is very sensitive issue and it would create adverse effect in the state. But, court was of the view that since the movie had been running smoothly in other areas of the country which are equally sensitive as that of UP, so UP cannot be made an exception. Further, court opined that reservation is also a social issue and discussion over it is quite an important thing to be done and state cannot impede this by means of an act. Moreover, once a movie has received certification from the CBFC board, it is the duty on the part of the state to impart its duty without hindering the release of the movie. A few case laws were discussed by the court during the course of hearing. First was S. Rangaranjan Vs. P. Jagjivan Ram & Ors. reported in (1989) 2 SCC 574,where it had been held by this court that –

“36. The democracy is a government by the people via open discussion. The democratic form ofgovernment itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people's participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government. The democracy can neither work nor prosper unless people go out to share their views. The truth is that publicdiscussion on issues relating to administration has positive value. What Walter Lippman said in another context is relevant here: When men act on the principle of intelligence, they go out to find the facts.... When they ignore it, they go inside themselves and find out what is there. Theyelaborate their prejudice instead of increasing their knowledge”

Secondly, court discussed the case of Union of India Vs. K.M. Shankarappa reported in (2001) 1 SCC 582, where it has been held by the court that –

“Once an expert body has considered the impact of the film on the public and has cleared the film,it is no excuse to say that there may be a law and order situation and that it is for the StateGovernment concerned to see that the law and order situation is maintained and that in any democratic society there are bound to be divergent views.”

Click here for the Supreme Court Judgment

Constitution - Fundamental Text of a Democratic Nation

Constitution, as generally called, is not an ordinary law present in any democratic country, and found itself placed above than any other law of that particular democracy. At the same time it becomes relatively important to understand the basis because of which this code has been placed at such a superior position, or at the apex position. Embodied provisions under Indian Constitution or any other constitution of a democratic nation have been incorporated by the public residing in India or any other democratic country. By public, we mean to say that the text is prepared with their consent, and this particular text is binding upon them right from the date of its enactment. Envision a society where the power is concentrated to a particular body and the laws enacted by such body binding on everyone but that body itself. Residing in such a society would led to the creation of state where public would remain alienated from their basic rights and there would be an absence of accountability of the body enacting laws and regulations for that particular society. It would not be difficulty envisage that in such a state, body which is formulating law would formulate them in accordance with their convenience. Claiming oneself supreme has always been questioned by a number of critiques at each and every point of time, contending that no one can be above god and must be accountable for his act to some authority. This can be traced from various countries which had monarchy in earlier times, which was question and led to revolutions e.g. France, Britain.

And this challenged the authority of monarch and consequently the notion “King can do no wrong”. If at all there is a presence of someone who can do no wrong, then he is certainly not present in this world. And, the formation of a constitution, modern constitution to be more specific, can be considered as a by-product of these contentions that there should be some kind of accountability of the authority governing each and every member of society, In the absence of such an authority, it would become difficult for a person find the rightful place to challenge an act or law passed by such an authority arbitrariness. Constitution is thus considered to be the fundamental law present the court which had passed it at any point of time, USA being first such country which passed its Constitution in the year 1787, though it has only Seven Articles inside it but is considered to be a permanent and fixed with approximately 17 amendments in its history of nearly 200 years. Even after coming into force, it took a long time for everyone to realize that if an act has been passed contrary to the provisions mentioned under the American Constitution, it would be rendered void. And it was only after the decision in Marbury v Madison in the year 1803 when the then Chief Justice of United States decreed that any law which is contrary to the provisions mentioned under the Constitution would stand void, that supremacy of the constitution was realized. It is fundamental law which has been enacted by all the citizens present in a country wilfully, and they have to comply with the provisions mentioned inside for the purpose of having a peaceful society. It has now become a principle that all laws enacted by the legislature must not affect the spirit of the constitution, and if they do so, they would not have any force of law. It is because of the reason that Constitution has been placed above any other codified law of the country, and the body which formulates a law in itself has been created by the Constitution and it cannot damage its spirit, in other words its creator. Now, a country having constitution as its fundamental law would not have any such authority which at one time had kept it unaccountable to anyone.

Similar situations can be seen in the India, where Constitution has been made with an aim to have a government accountable for its act, and public would be able to remove them from their position if they act contrary to what they have been elected for. And, it is quite necessary for a society to have this text called “Constitution” to make sure that rights of its citizens are respected by everyone. Fundamental Rights provided under the Indian Constitution clearly specify that a citizen or a person, as the case may be, would be able to enforce his right against the state in case it gets infringed. And any law enacted by the legislature would be void if made not in accordance with the Indian Constitution. Albeit, legislature is able to amend the constitution as and when there arises a need to do so, but there are certain provision which cannot be amended at any point of time by the legislature, to be more specific provision which form the part of the basic structure of the Indian Constitution. Role of Judiciary is of the utmost importance in these kinds of situation, because it is the one who decides what is in fact contrary to the Indian Constitution, and in way explains the correct meaning of the wordings provided under this text.

In other words, in the absence of the constitution as the fundamental law in a country, it would become very difficult for anyone to challenge the supremacy and authority of the power which enacts laws, even if it is an oral constitution. And, to ensure that there remains some kind of accountability of the government, there must be a presence of such kind of text.

“Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” - Abraham Lincoln

Opinion formulated by Chief Justice not subjected to Judicial Review

Adversity contiguous to the appoint of an additional judge of a High Court to any tribunal or commission has been fixed by Bombay High Court recently in Mr. V.P. Patil vs Mr. Justice N.D. Deshpande & Ors, where an issue in relation to the appointment of an additional judge as Presiding officer of the Bombay University and College Tribunal was present. One important aspect can be found not in this particular case but in the case which has been discussed by the Bombay High Court when it decreed its decision. High Court discussed N.Kannadasan Vs. Ajoy Khose & Ors decided by the Supreme Court in the year which held that “what is not the subject matter of judicial review is the opinion of the Chief Justice touching upon the merit of the decision but the decision making process is subject to judicial review”

Argument formulated by the petitioner stated that since respondent 1 was not a judge of Bombay High Court, he cannot be appoint to the post as mentioned above because the post requires a person to be qualified as a High Court judge before being appointed to the post. It was further alleged by the petitioner that since two junior judges had been appointed as permanent judge of the Court and not him, it was clear according to him that Chief Justice didn’t consider him appropriate for the post. Section 58 (4) (a) of the Maharashtra University Act, 1994 a person shall not be qualified for appointment as a Presiding Officer of a Tribunal unless he is or has been a judge of the High Court. It was stated by the petitioner that since the judge, according to the Supreme Court collegium, was not eligible for the post of High Court judge at Bombay, his appoint as the presiding officer shall stand void and this petition should be decreed accordingly.

While decreeing, court was of the opinion that what can be challenged is the decision making process would some under the ambit of judicial review and not the opinion which he speaks out while appointment of a judge. Moreover, it has been stated by the High Court that the case referred by the appellant had no relevance in the present case because of a simple reason that judge in that case was charged with probity unlike this case, where judge has not been charged with probity in this particular case. Chief Justice was aware of his credentials which cannot be disputed, and this was the reason why he appointed him as an additional judge of Bombay High Court. In the former case, Chief Justice was more or less not aware of the authenticity of his credentials, and also of the allegations put forward by the petitioner. As long as it is the opinion of the Chief justice, it cannot be disputed in any court of law because of the limitation of judicial review.