Failed Generation, Solar Films and VIP’s

Short analysis of Supreme Court’s unreasonable decision to ban the use of solar films on cars in India.

It is very rare for judges to reach out of their Ivory Tower and express about the ground realities of life. In one such rare occasion, recently Supreme Court judge G S Singhvi speaking at a seminar observed:

“It is sad to say that my generation has failed the nation. In a country where 700 million people live below the poverty line, we tend to talk about justice. We talk about our fundamental rights being trampled upon but what about those people who do not get two square meals a day, have no right to education, shelter, clothing and other basic amenities. The country is divided into rural and urban and the idea about equality and fraternity needs to be pondered about and the entire process of development had taken place at the cost of rural people  ……….. I feel guilty when I read about equality and fraternity and think about the labourers and farmers who have made our lives comfortable and easy. The ‘jan sevaks’ (Public Servants) are fast becoming our masters, the first citizens followed by the rich and the poor only as third class citizens.”  (Source: http://m.timesofindia.com/Young-lawyers-facing-multiple-challenges-Supreme-Court-judge/articleshow/13112646.cms)

Constitutionalism in India means that people’s sovereignty is supreme and unlimited and the constituents of the state have limited powers.” (Source: http://articles.timesofindia.indiatimes.com/2012-02-26/nagpur/31100894_1_culture-guest-lecture-justa-causa)

The problem is that we all know about the failures. But what will take it to put into practice? What about the class called VIP’s? Who are they and why they are VIP’s? Problem is that only thing we see in focus is MONEY and DOMINATION. All we have to do is to do our own work diligently, even if some time, the reciprocation is not fair. It is not easy but practice can make anyone perfect. I will misquote Gandhi: ‘When you do something, remember the face of the poorest of poor’.

As regards the second part, it is another story. While Constitutionalism means Rule of law and not Fiats issued at Will; another decision of Supreme Court nearly rubs it on wrong way. Following direction has been given by Supreme Court:

We have no hesitation in holding that use of black films or any other material upon safety glass, windscreen and side windows is impermissible. In terms of Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to the manufacture of the safety glasses for the windshields (front and rear) and the side windows respectively. Use of films or any other material upon the windscreen or the side windows is impermissible in law. It is the VLT of the safety glass without any additional material being pasted upon the safety glasses which must conform with manufacture specifications. ….. The competent officer of the traffic police or any other authorized person shall challan such vehicles for violating Rules 92 and 100 of the Rules with effect from the specified date and thereupon shall also remove the black films from the offending vehicles. (Full judgment is here.)

The supreme court of india. Taken about 170 m ...

The supreme court of India. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

By one stroke of pen, an entire industry has been struck off. I wonder if they were a party to it. If not then it is violative of principles of natural justice. It beyond logical comprehension that if Manufacturer does not apply tinted glasses, I can not apply solar film to it? Off course it must meet statutory standard. Merely because law enforcement agency do not have technical equipment, all films are to be removed. By same logic why not every person be kept in lock and key at night as most crimes are committed at night. Curfew will be even better. Passes can be issued to VIP’s to wander at night, under Rules. Yes ban the liquor/Alcohol. A large number crime are committed under its influence. Licenses can be issued to VIP’s for that as well.

Judgment relies upon the practice of not using films in countries where the maximum temperature never exceeds 25 degrees. Here it touches 48 degrees centigrade every summer. In fact the word ‘weather’ does not even occurs in the judgment. The very basis of applying solar films is missing. Thus the judgment shall be hit by Wednesbury’s arbitrariness as it excludes an important and relevant fact from consideration while deciding an issue and therefore is not a reasonable judgment. Those interested in full judgment of Wednesbury’s case, can find it here. Some other arguments have been raised by another Gentleman here and therefore are not repeated.

Another legal issue is that this order has been passed under article 32 of Constitution and is purported to enforce article 21  of Constitution in a Public Interest Litigation (PIL). Article 21 guarantees right to life to every citizen. If today a Habeas Corpus petition is filed in Supreme Court saying that life of a girl is in danger, Supreme Court will not entertain that petition and ask the party to go to respective High Court. Was solar film matter so important that Supreme Court could not have waited for the opinion of High Courts?

Now a days, if there is a stray cow sitting upon a pavement, people joke that it has a stay order from Supreme Court or High Court in a PIL on animal rights. So much for PIL fiats.

P.S.: As for me, I have tinted glasses in my car. I never needed solar film, but now I think I will have black curtains and would have a feel of a VIP. Is there any rule against curtains?

© Sandeep Bhalla

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Rule of law

Konakuppakatil Gopinathan Balakrishnan, Chief ...

Konakuppakatil Gopinathan Balakrishnan, Chief Justice of India, during an official visit in Brasília, Brazil. (Photo credit: Wikipedia)

Living in a country, which was under foreign rule for over seven hundred years is not easy. People through generation after generation learned that survival under corrupt autocratic rule is possible only through bribe. No wonder that that about sixty five years after the independence the only pan India culture  is corruption. Every office and every institution is marked with corruption. So much so that it is an agenda for mass protests held at several places in the country. However at the end of protests, some of those who were leading  it, had also resorted to corrupt practices. In a democratic country Judiciary is the only institution which can keep the ruling élite, in check to ensure that democracy does not become some kind of aristocracy or dictatorship. For the record Hitler was elected to the Government and he seized absolute powers through legitimate/constitutional means.

Unfortunately, transparency in affairs of judiciary in India is severely lacking. The method of appointment of judges to higher judiciary is most mistrusted system and is under attack from all sections of society including those judges who were once part of the system. (Read here.) There have been allegations of corruption almost with every retiring Chief Justice of India with exception of 1 or 2 former CJIs since the new millennium.  Newspaper staff publishing the allegations of corruption has been sentenced to imprisonment under contempt law though Supreme Court stayed that decision. But the fear of contempt looms upon every individual/institution. In certain ways situation is more akin to the Martial Law. But it is heartening to note that voice of dissent is coming from within. Following news inspired me to write this post:

A bench of Justices BS Chauhan and JS Khehar said if the competent authority found that the allegations deserved to be acted upon, then the President on the advice of the council of ministers could go ahead as per Section 5(2) of the Protection of Human Rights Act, 1993, and send a reference to the Supreme Court for its opinion on removal of Justice Balakrishnan as chairperson of the apex human rights body.  This is the first instance when the apex court has told the government to take a decision on a complaint against a former Chief Justice of India. It is also the first time that the SC has said the government could consider sending a reference against an NHRC chief if the accusations against him were found worth inquiring into.”If the allegations, in the aforesaid determination, are found to be unworthy of any further action, the petitioners shall be informed accordingly. Alternatively, the President of India, based on the advice of the council of ministers, may proceed with the matter in accordance with the mandate of Section 5(2) of the 1993 Act,” the bench said. (http://m.timesofindia.com/india/Supreme-Court-asks-Centre-to-examine-complaints-against-former-Chief-Justice-of-India-KG-Balakrishnan/articleshow/13086987.cms)

Please take note that all that the bench actually said was ‘please follow the law’ as you were supposed to do in case the former CJI was an ordinary government servant. As a matter of fact this order restores Rule of Law by ordering that normal procedure laid down in the Act of 1993 should be followed. It may be recalled that the allegations against KGB is that his kins made money while he was in office. (Read here.)

© Sandeep Bhalla

Advice on how to be a good witness in civil court

You must not allow yourself to be fooled into taking anything the judge says personally. They are highly trained and experienced. Despite your life experiences, they are well used to not making first impressions, to hearing all sorts of stories and deciding complicated cases without allowing themselves to be confused or put off by an inexperienced witness. Of course, if you go out of your way to wind up a judge, you will likely come off worse. So long as you remember your place in the court room this should not happen. (Excerpts from http://blog.scrapperduncan.com/2011/12/21/advice-on-how-to-be-a-good-witness-in-court-in-england-wales/)

Bias and Corruption

While the debate on eradication of corruption goes on it omits one important aspect i.e. the corruption for money is not the only kind of corruption. There are many other forms of corruptions. Actually to be corrupt is to be biased in favour of somebody who could be a person or even class of persons. While favouring somebody for money is apparently taken as corrupt, favouring a class of persons is easily passed as irregular. In fact the expression ‘subjective bias’ has been rendered completely non-existent. If a judge is suffering from a subjective bias, litigant should have an opportunity to take the case away from such judge on the ground of subjective bias but in practice it is never done. The lawyers in fact are afraid to mention it so as not to invite the wrath of the concerned judge and rather try to exploit this bias if possible. There are many examples. A long time ago a media nick named a judge as ‘Green Judge’ which actually meant that he was favouring environmental causes. It was taken as a compliment but in my view it was reflective of subjective bias. See the following comment:

He broke new legal ground in environmental law (earning the sobriquet ‘green’ judge) and gave a fresh dimension to human rights litigation while dealing with alleged police atrocities in Punjab (for which his detractors termed him ‘Khalistani‘ judge). Post-retirement, his crusading zeal has not dimmed and he is teeming with ideas for judicial reform.(via http://www.outlookindia.com/article.aspx?202888)

Similarly another article talks about the bias of another judge in favour of politicians:

One reason, perhaps, why the judge of the special CBI court makes it a point to stress that the rule of law “should be applied equally to everyone”. In the hawala case, he pulled up the CBI for following “a policy of pick and choose in arresting one set of accused and not arresting the other set of accused. Said he: “It is not that our country has two sets of law, one for highly-placed public servants and the other for ordinary citizens”.

Ironically, he has not been able to practice this avowed commitment to uniformity in applying the law, say lawyers at Delhi’s Tis Hazari district courts. They point out that while Gupta sent bureaucrats involved in the hawala case to jail, politicians have been granted bail. Said one lawyer: “Members of one class, be it politicians or bureaucrats, are being treated equally, but different classes are being treated differently”. ( via http://www.outlookindia.com/article.aspx?201077)

It would be high time that the debate should be started over the subjective bias of the holders of public office including judges. Otherwise Late Palkiwala would be right in observing that equality is only in graveyard. But is it really there? Because no two tomb stones are equal.
© Sandeep Bhalla

Justice “FOREVER”

Article 18 of Constitution of India is  as under:

“18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.”  (Italics added)

From the use of words “military or academic” above it is clear that use of Doctor or Professor or Engineer or Major etc. is permissible but retired judges continue to use the expression ‘JUSTICE’ as a prefix to their name. The retired Chief Justice also uses Justice as prefix and not the Chief Justice. The question is can they use this prefix like a title after they demit their office? And is it Constitutional? I am open to ideas! But the question requires a debate.

The real problem will arise if somebody repeats Late M.C. Chagla and becomes a Minister or Governor after retirement or leaving the office. Then clearly he would not use this prefix as it would conflict with the official title.

© Sandeep Bhalla