Tag: Supreme Court

Government has a totalitarian mindset, says Arun Shourie

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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The court is in mortal danger because of the mentality of the government to occupy the entire space, geographical space and the institutional space, the personal space and therefore, the government is determined of this, it is a totalitarian mentality, said Arun Shourie, Author and Economist.

In an interview to CNBC-TV18, Shourie discusses the Indian economy, judiciary and problems in the banking sector.

Edited Excerpts:

Exactly this time four years ago, is when we had our last conversation when the government had just won the elections and you had put together a white paper on the economy that you were going to present to PM Narendra Modi. I don’t know whether you remember that conversation or you remember the white paper on the economy that you had put together but I will to you about your assessment of the economy and the government’s track record in a bit. Let me talk to you about the contents of your book and the issue that is capturing mind space and headlines today and that is the crisis in the judiciary, whether it is a battle between the executive and the judiciary or it is a battle within the judiciary itself, these are questions that will be answered overtime but given the fact that yesterday we have seen the decision of the collegium, which has been deferred now on what it intends to do, whether it intends to send back the name to the government or not for a week, what do you make of that? Do you believe that this is an attempt to deescalate or do you believe that this is giving in to what the executive wants?

It is obvious that the collegium could not have come to a decision and the record shows that at least four of the judges would have been of one view that we should send it back, if you look at their letters in the past, statements of Justice Kurian Joseph and others. Therefore, it must be that the chief justice – I would presume – has taken the view that we must give more names. If the government wants more names, certainly it will be convenient for the government. Whatever the motives and reasoning of the chief justice, it certainly helps the government.

Do you believe that if the decision is of the collegium to not send to the government as was expected, this is going to deepen the crisis, worsen the crisis?

Yes, it will be a fatal blow to the collegium and to the Supreme Court. If they do not send it back in fact, they have already delayed it too long. In my view, as I have said earlier, they should not have had an oath taking ceremony of one judge when they had sent two names. That itself was a completely non-Gandhian thing to do.

What is the way out of this now?

Way out of this is for the judiciary to stand absolutely firm on every little coma. That is the only way.

Do you see that happening?

No, I don’t see it happening because of the chief justice.

Hence I asked you, what is the way forward?

The way forward is precisely for the others to keep showing up the steps, which are being taken that are helpful to the government. For the other judges to keep showing those up, for disclosing them to the public and for all of us to be vigilant and to keep pinpointing those steps and opposing those steps.

You are suggesting that the other judges, the four judges for instance who held the press conference in January, they should do more of that now?

Yes, they should put it on record. I will really look forward to the time when we get to know the reasons on account of which this decision has again been deferred.

Do you believe that ought to have been part of the announcement that came in – that was a one word, deferral that was mentioned by the Supreme Court yesterday, do you believe that they ought to have explained why they chose to defer the matter?

Yes, they always keep talking about transparency, isn’t it? Doesn’t Supreme Court says that about other people? So what are they doing now? I believe that the court is in mortal danger because of the mentality of the government to occupy the entire space, geographical space and the institutional space, the personal space and therefore, the government is determined of this, that is in my view, it is a totalitarian mentality. Total control of the total space. Now, the only pillar left standing is the judiciary and they will not leave it alone. They will come back to you on appointments and the kind of things and suddenly they will wake up to this business of regional representation. Are you again having a reservations in one way or the other just now?

So you are saying that there is no validity to the argument that is being presented on the regional representation?

Of course not. That should not be the criterion, it must be competence. Competence to deliver judgements from a national point of view.

Why do you believe that what we are seeing today is worse than what we have seen in the past? I am not suggesting that let us do comparisons between the present and the past. I am saying why do you believe that what we are seeing today is worse than what has happened in the past because the attempts of political capture of independent institutions including the judiciary have been attempted in the past?

I just don’t understand why journalists keep asking this question. Has there not been merger in the past? Has there not been killing of children in Kashmir in the past through these pellet guns? Does that mean that tomorrow you should do it?

No no, I am not suggesting it makes it any better.

You know then why is the question being asked.

I am saying what do you find being different in the manner in which it is being done?

It is much more determined, it is much more systematic and much more unrelenting than even during the emergency.

Secondly, the Supreme Court itself is in a much weaker position in its composition. I don’t want to use words that are harsh but certainly even in the calibre of judges. Do you think that anybody would ever have thought of doing such a thing in the 1950s in India with Panditji at the helm or Patanjali Sastri as a chief justice? No. Could they have succeeded? No. During the emergency itself when chief justice AN Ray constituted a bench to overturn Kesavananda Bharati. In two days, he himself had to dissolve the bench because he saw that all the judges were against the proposition. I don’t see that happening today.

Given the fact that you don’t see that kind of unity within the judiciary.

Not just unity but calibre.

Plus calibre, plus you have seen unrelenting, in your words, attempt on the part of the executive to try and ensure that its will prevails then what is the way out?

The way out is for just you have to resist the authoritarian moves of the government in every sphere and every move and go on doing it.

You said that you would expect that the four judges like they did the press conference in January to continue their attempts, to come public and come on record?

Yes, that is part of their job.

What about politicians?

Impeachment motions, now you will come to that. You have asked the question about the four judges. But please don’t leave the task just to four judges. The media must stand up and see and not get caught in these useless statements of ministers and others, everybody has to contribute to shielding these institutions.

KPS Gill used to say very well that you cannot have a first rate anti-terror operation and a third rate system in the courts. In the same way, you cannot have a situation in which the judges will save freedom but we will only keep asking, this or that. Is freedom good or not good? Freedom can also be misused or why should there not be restrictions. That is a type of questions we are asking. The same way, citizens alone cannot save freedom if the – let us say in this case – the judges don’t stand up. So everybody has to do his part of the job. That is the way out.

I will ask you largely about governance and this was a government that promised greater degrees of transparency, this was a government that said whether it is allocation of natural resources, we will go through auctions and so on and so forth, are we moving towards a less transparent and a more opaque governance system today and I will ask you that in the context of two examples. For instance, a right to information (RTI). The latest data seems to suggest that for the first time since the RTI was actually brought in, we have seen a decline as far as the RTI applications are concerned. Some could argue that maybe things are so transparent that people don’t need to approach the government anymore but the other indicator could perhaps be that it is taking far too long for people to get answers or it is being blocked at various levels. What is your point of view?

I have said for three and a half years that the RTI will be systematically choked and that is exactly what is happening. Secondly, sedition — how many journalists and others and Hardik Patel and others have been hauled up under the law of sedition. Sedition means the overthrow of the country. Tell me, isn’t that choking of a free speech? So there is a systematic attempt and in the RTI, it is not just that things are taking long, but the things are completely blocked. Today you see that something — such and such data is not information — somebody says. You try and get any figure from the Prime Minister’s Office (PMO) and see what happens.

Similarly, on the question of opaqueness, you are so well acquainted with the economy, what about these so called non-performing assets (NPAs). My father used to say, India is the only country in which non-performance is an asset. It is bad loan. The government data says that in the last four years, Rs 2,80,000 crore of bad loans have been written off. Okay. Why do you not disclose those names?

It is confidential. Every one of them had shouted at when Rajiv Gandhi’s government had said confidential. We had opposed it when they said confidential. After all these are public sector banks that means it is the citizen’s money and they have written off to friends of somebody.

Since we are talking about the issue of opaqueness and transparency in governance, I also want to understand your point of view on the introduction of the electoral bonds because this is going to be the first election that we will see the electoral bonds being used?

Yes, it is – there is no doubt that these will be monitored by the government as to who purchases them and this is another device so that everybody who gives any money to the parties opposing them will be targeted in the subsequent round. No doubt on that.

What is your take on the economy today and I started my interview by asking you about the white paper that you had put together?

I don’t remember.

But let me ask you about your assessment of the economic situation today.

In my view, the economy is not the issue today. The survival of institutions is the central issue, the survival of freedom is the central issue whether Kashmir will be further pushed out of India is the issue, whether the people of Nepal will be further pushed into the lap of china is the issue, whether the people of Sri Lanka will be further pushed back into the lap of China is the issue. Those are the issues. Whether we are not entangling ourselves in the American strategic perspective, which will be serving only their own interest, that is the issue.

You talked about diplomacy and you talked about our external equations. So, let me ask you then about China because you just talked about China and its growing presence in our neighbourhood. We have just seen the meeting between Prime Minister Modi and Xi Jinping, what the outcome of that meeting is, we are not clear today. What is your own assessment of the India-China equation in this context?

There is no comparison between the two. China is five times ahead of us in the economy and they are maybe 20 times ahead of us in defence preparedness.

In our case, one third of our air force fleet is not functional. Just see the testimony of the vice-chief of staff to the parliamentary committee, they have absolutely no money left for modernisation and they don’t even have Rs 7,900 crore or more than that which have been given for just security in their own bases, forget protecting the people. However, there is zero budgetary allocation for that and you are competing with China.

These ceremonial meetings are of no consequence. All this talk that is being made in India about the success of the meeting and so on, that is just Indians talking.

China has a consistent view. There is a book called The Hundred-Year Marathon by Michael Pillsbury — one of the acutest observers for the CIA and for the Pentagon about the Chinese strategic pursuit, that they will be the dominant power in the world by 2049, that is 100 years after 1949 takeover of power. India is not even figuring in that. It is just regarded not even as a nuisance but as a potential nuisance which may become a bit of a nuisance if it allies very closely with Japan, Vietnam, Australia and USA.

The Chinese from time to time make these goodwill statements and so on so that India just thinks that there is some option here.

Do you believe that this idea of a federal formation as is being discussed today with Mamata Banerjee, KCR, the possibility, the prospect of that is a real one?

I don’t know but it should be. Only they will know. I feel there is a way out but they must first agree that we shall have only one candidate against a BJP candidate. Secondly, don’t hurry into a federal front and so on just now. As Yashwant Sinha has been saying, hold the meetings in different state capitals and the place where that meeting is held is the convenor of this front for that meeting. Third, you will have to leave the decision of allocation of seats between parties to the person who is the dominant person in that state or that sub-state, if the state has many regions and so on like north and south Karnataka or east and west UP and so on, then you have to leave it to the good sense of that person. That he would realise that we must get everybody together and therefore I am not going to completely use up all the seats for myself, I will be far sighted enough to allocate seats rationally. So, these considerations can certainly bring about a front.

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Now, executive joins the legal tug of war

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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The tug of war between the Parliament and the Supreme Court  (SC) is not new. On April 23, 1985, in the Shah Bano case, the SC granted maintenance to a divorced Muslim woman. The verdict was nullified by Parliament.  On January 20, 2012, the SC granted tax relief to telecom operator Vodafone. The verdict was nullified by Parliament. Such examples abound.

Likewise, the Supreme Court too has, time and again, struck down constitutional amendments brought about by Parliament. Still fresh in memory is the SC striking down the 99^th Amendment of the Constitution, which set up National Judicial Appointments Commission (NJAC).  The tussle between Parliament and the Supreme Court continues.

Now, the executive too has joined the fray in search of acquiring more power. On April 26, the government (law minister) asked the Supreme Court collegium to reconsider its proposal to elevate Uttarakhand High Court Chief Justice KM Joseph, an outstanding judge, to the SC. The government stated that the elevation may not be appropriate and wrote a long letter to the SC collegiums through the Chief Justice of India (CJI).

Unusual Reasons

Various grounds of seniority, regional representation and SC judgments were raised. It was stated that the government’s rejection of Justice Joseph’s name had the approval of the President and the Prime Minister. This is rather unusual.  Did the President sign the file? If so, did he act on the aid and advice of the government? Why did the government sit over the file for 97 days before clearing Indu Malhotra’s well deserved elevation, but declining simultaneously  Justice Joseph’s elevation? How could the government have segregated two names in contravention of the directive issued in 2014 by the then Chief Justice of India (CJI) RM Lodha?

The law minister’s letter reads, inter-alia, as : “The government is firmly of the view that the judgments in the Second and Third Judges’ case, both decided by nine Judge Bench of the Supreme Court , are to be borne in mind while making appointments to a very important and high constitutional office of a Supreme Court Judge.” It is preposterous on the government’s part to assume that the SC collegium has not considered its SC’s own judgments while recommending Justice Joseph’s name. Besides, it is entirely the prerogative of the SC collegium to select and recommend appointment of a judge, whom to appoint first, who should be appointed next, and in which order of seniority.

Now the government is trying to usurp the collegium’s power by dictating not to appoint Justice Joseph “at this stage”. If the collegium yields, then effectively the government decides inter-se seniority of judges in the SC, which would be destructive of the independence of the judiciary.  The collegiums can never allow this to happen.  All the grounds mentioned for referring back Justice Joseph’s name are utterly untenable because six vacancies exist in the SC. How can the government assume that the collegiums will ignore various parameters stipulated in SC judgments while filling the remaining vacancies? The potential reason to stall elevation of Justice Joseph evidently is the verdict that he delivered against the government quashing the President’s rule in Uttaranchal Pradesh in 2016.

Specious Arguments

In its attempt to block appointment of Justice Joseph, the government argues that there is “adequate representation” of Kerala High Court in the Supreme Court and in various High Courts as Chief Justices. The government names Justice Kurian Joseph (SC), and the three Chief Justices, namely KM Joseph (Uttarakhand HC), TB Radhakrishnan (Chhattisgarh HC) and Antony Dominic (Kerala HC). Justice Dominic retires on May 29, 2018 and Justice Kurian Joseph retires on November 29, 2018. So, with the elevation of Justice KM Joseph in the SC now, well before the year ends, Kerala HC will have representation of only  one judge in the SC and only one Chief Justice in a HC. Thus, the government’s argument is specious and must be rejected outright.

It is evident that the government has not been able digest the NJAC (National Judicial Appointments Commission) verdict delivered by the SC on October 16, 2015. The verdict restored the collegium system. The government is now attempting to usurp collegium’s power in violation of NJAC verdict.  The SC collegium must immediately reiterate unanimously its recommendation to elevate Justice Joseph to the SC. The government’s design to block appointment of clean independent judges must be thwarted.

(The writer is a former additional solicitor general of India and senior advocate, Supreme Court of India. The views are personal.)

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Indu Malhotra takes oath as first woman advocate to be Supreme Court judge

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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Senior advocate Indu Malhotra was today administered the oath of office as a Supreme Court judge by Chief Justice of India Dipak Misra, making her the first woman lawyer to enter the top judiciary directly.

With Malhotra joining the bench, the strength of the Supreme Court is now 25, against the sanctioned strength of 31, including the CJI.

Malhotra, 61, was administered the oath of office and secrecy in a ceremony held at court number 1 in the apex court.

This would be the third occasion in the 67-year history of the Supreme Court when it has two sitting women judges together — the first being Justices Gyan Sudha Misra and Ranjana Prakash Desai, then Justices Desai and R Banumathi and now Justices Banumathi and Malhotra.

Malhotra’s name was recommended by the collegium for elevation along with that of Uttarakhand High Court Chief Justice K M Joseph, but the Centre has sought reconsideration of the proposal for the latter.

Malhotra would be the seventh woman judge in the top court since Independence. Other women judges were elevated to the apex court from high courts.

Malhotra joined the legal profession in 1983 and was enrolled with the Bar Council of Delhi. She qualified as an Advocate-on-Record in the Supreme Court in 1988 and has been dealing with several matters of constitutional importance.

#InduMalhotra sworn in as #SupremeCourt judge, becomes the first woman lawyer to be elevated directly from the Bar. Here’s all you need to know about her #ICYMI pic.twitter.com/gKU69ZDuLk

— CNBC-TV18 News (@CNBCTV18News) April 27, 2018

She was one of the prominent senior advocates regularly appearing in educational matters pertaining to medical and engineering colleges.

Malhotra was one of the members of the Vishaka Committee on sexual harassment at workplace and was also part of a 10-member committee constituted by the top court to deal with complaints of sexual harassment within the court.

The Bangalore born Malhotra was designated senior advocate by the top court in 2007 and became the second woman to be designated as such by the apex court after a gap of over 30 years.

The first woman judge of the apex court was Justice Fathima Beevi who was appointed in 1989, 39 years after the Supreme Court was set up in 1950. She was elevated to the apex court after her retirement as judge of the Kerala High Court.

The second was Justice Sujata V Manohar, who started her career as a judge from the Bombay High Court and rose to become the chief justice of Kerala High Court. She was elevated to the apex court where she remained from November 8, 1994 till August 27, 1999.

Justice Ruma Pal followed Justice Manohar after a gap of almost five months and became the longest-serving woman judge, from January 28, 2000 to June 2, 2006.

After her retirement, it took four years to appoint the next woman judge. Justice Gyan Sudha Misra was elevated to the Supreme Court from the Jharkhand High Court where she was the chief justice. Her tenure in the apex court was from April 30, 2010 to April 27, 2014.

During her stint, she was joined by Justice Ranjana Prakash Desai, who served the apex court between September 13, 2011 to October 29, 2014. These two judges also created a history by holding court together as an all-women bench for a day in 2013.

Justice Banumathi had joined the apex court on August 13, 2014 and will retire on July 19, 2020.

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Supreme Court terms public statements on impeachment of judges unfortunate

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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Supreme court allows Sahara to sell parcels of Aamby Valley till May 15

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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The Supreme Court on Thursday allowed the Sahara Group to choose and sell any parcel of its property in its Aamby Valley project in Maharashtra by May 15 and deposit the money in the SEBI-Sahara Refund Account.

A bench of Chief Justice Dipak Misra, Justice Ranjan Gogoi and Justice A.K. Sikri said the Sahara Group has time till May 15 to sell the properties and if it fails, the Bombay High Court’s official liquidator will proceed with the proposed auctioning process to sell the property.

The court posted the matter for further hearing on May 15.

Spread over 8,900 acres, the Aamby Valley property is to be sold by splitting it into saleable parcels of land as there were no takers for the purchase of the entire Valley.

In its report, the official liquidator said the procedure for auctioning the Aamby Valley property has commenced and bids will be invited from May 21 to 31 and the auction will begin from June 2.

Earlier, the top court directed the auction of Aamby Valley to recover money that the Sahara group has to pay to the market regulator Securities and Exchange Board of India (SEBI) for returning investors’ money that its two companies SIRECL and SHICL had raised from investors in 2007 and 2008.

The Sahara India Real Estate Corporation Ltd (SIRECL) and the Sahara Housing Investment Corporation Ltd (SHICL) had raised Rs 24,000 crore through optionally fully convertible debentures in 2007 and 2008.

The top court by its August 31, 2012 order directed Sahara to refund this amount with 15% interest.

The Sahara group has already given a part of the money to SEBI that is parked in the SEBI-Sahara Refund Account.

On August 10, 2017, the apex court declined the plea of Sahara chief Subrata Roy to put on hold the auction of Aamby Valley and allowed the liquidator to go ahead with the auction.

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Supreme Court dismisses petitions seeking probe into judge Loya’s death

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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The Supreme Court today dismissed petitions seeking Special Investigation Team (SIT) to probe into the death of special CBI Judge Brijmohan Harikishan Loya.

Loya had allegedly died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague’s daughter.

The three-judge bench headed by Chief Justice Dipak Misra and comprising of Justice DY Chandrachud and Justice AM Khanwilkar said that it was clear that Judge Loya died a natural death.

The apex court said, “There is no merit in the PIL seeking a special investigation.”

Judge Loya  died when he was hearing the Sohrabuddin Sheikh fake encounter case, in which BJP president Amit Shah was an accused.

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Supreme Court hearing case about online sales tax collection

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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The Supreme Court is hearing arguments about whether a rule it announced decades ago in a case involving a catalog retailer should still apply in the age of the internet.

The case focuses on businesses’ collection of sales tax on online purchases. Right now, under the decades-old Supreme Court rule, if a business is shipping a product to a state where it doesn’t have an office, warehouse or other physical presence, it doesn’t have to collect the state’s sales tax. Customers are generally supposed to pay the tax to the state themselves, but the vast majority don’t.

States say that as a result of the rule and the growth of internet shopping, they’re losing billions of dollars in tax revenue every year. More than 40 states are asking the Supreme Court to abandon the rule.

Large retailers such as Apple, Macy’s, Target and Walmart, which have brick-and-mortar stores nationwide, generally collect sales tax from their customers who buy online. But other online sellers that only have a physical presence in a few states can sidestep charging customers sales tax when they’re shipping to addresses outside those states.

Sellers who defend the current rule say collecting sales tax nationwide is complex and costly, especially for small sellers. That complexity was a concern for the Supreme Court when it announced the physical presence rule in a case involving a catalog retailer in 1967, a rule it reaffirmed in 1992. But states say software has now made collecting sales tax easy.

The case the court is hearing has to do with a law passed by South Dakota in 2016, a law designed to challenge the Supreme Court’s physical presence rule. The law requires out-of-state sellers who do more than $100,000 of business in the state or more than 200 transactions annually with state residents to collect and turn over sales tax to the state.

The state wanted out-of-state retailers to begin collecting the tax and sued Overstock.com, home goods company Wayfair and electronics retailer Newegg. The state has conceded in court, however, that it can only win by persuading the Supreme Court to do away with its current physical presence rule.

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SC asks Jaiprakash Associates Ltd to deposit Rs 100 crore by May 10

KV Prasad Jun 13, 2022, 06:35 AM IST (Published)

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The Supreme Court on Monday asked realty firm Jaiprakash Associates Limited (JAL) to deposit Rs 100 crore with its registry by May 10 to pay back the hassled home buyers who have opted for refund, instead of possession of flats.

A bench headed by Chief Justice Dipak Misra considered the submission of JAL that in pursuance of the March 21 order, it has already deposited Rs 100 crore with the registry on April 12.

The court, on March 21, had asked JAL to deposit Rs 200 crore with its registry in two instalments. It had asked it to deposit Rs 100 crore by April 15 and the rest by May 10.

“M/s JAL is at liberty to submit a representation to the competent authority. The representation shall be considered in accordance with law. We specifically make it clear that we have not expressed any opinion on that score,” the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.

The realty firm said it has been completing 500 dwelling units for delivery to the home buyers every month and its representation be considered by the Insolvency Resolution Professional (IRP) as per law.

The top court, meanwhile, granted permission to Pankaj Gaur, Joint Managing Director of JAL and Sunny Gaur, Managing Director of JAL, to travel abroad.

“This IA (interim application) has been filed for grant of permission to Pankaj Gaur… to travel to Bhutan and Nepal on multiple occasions between a period of three months. The prayer stands allowed in terms of additional affidavit,” it said.

“This plea has been filed seeking permission on behalf of Sunny Gaur… to travel to the United Kingdom between April 14 and April 30, 2018. Prayer, …stands allowed,” it said.

The court, however, said, “if the amount, as directed, is not deposited within the time granted, steps shall be taken to attach the personal properties of those directors.”

It also directed the apex court registry that if any money was lying with it, then they may be invested in short term fixed deposit with a nationalised bank.

The real estate major has so far deposited Rs 650 crore with the apex court registry and sought indulgence on the ground that only eight per cent of the over 30,000 home-buyers had opted for refund and 92% wanted delivery of flats.

The top court had on January 10 directed JAL, the holding firm of Jaypee Infratech Ltd (JIL), to provide details of its housing projects in the country, saying the home buyers should either get their houses or their money back.

It had refused to accord urgent hearing on a plea of the Reserve Bank of India, seeking its nod to initiate insolvency proceedings before the National Company Law Tribunal (NCLT) against JAL, saying it would be dealt with at a later stage.

The home buyers, including one Chitra Sharma, had moved the apex court, stating that around 32,000 people had booked flats and were now paying instalments.

The plea had also stated that hundreds of home buyers were left in the lurch after the NCLT, on August 10 last year, admitted the IDBI Bank’s plea to initiate insolvency proceedings against the debt-ridden realty firm for defaulting on a Rs 526 crore loan.

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