Supreme Court intervention in Karnataka crisis raises separation of powers issues

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
July29, 2019
WhydidtheresignationofCongress legislatorsinKarnatakarequiretheinterventionoftheSupreme
Court?Theapexcourt’sjudgment favourstherebelsand,withthegovernorsteppingin,questionsare
raisedaboutseparationofpowersamongtheLegislature,theJudiciaryandtheExecutive
Bhushan Steel:
The mother of all cases
Lynch Mobs:
Facing the heat
Democracy’sDarkHour

Catch Us
Every Saturday at 8 pm
and Sunday at 2 pm

4 July 29, 2019
OT for nothing is Justice Bashir
Ahmed Khan called the “Badshah
of Law”. This legal luminary has
served as Chief Justice of the
Jammu and
Kashmir High Court, Acting Chief Justice
of the Delhi High Court, Administrative
Judge of the Madhya Pradesh High Court’s
Indore branch and is currently chief of the
Jammu and Kashmir State Accountability
Commission, an anti-graft body similar to
the Lokpal.
I caught up with him recently in Delhi
and persuaded him to talk of the major chal-
lenges facing the judiciary, including, loop-
holes in the system, corruption and lack of
accountability. Here are some of the major
points that emerged from the interview and
merit attention of the judicial community:
The issues of faulty recruitments,
inadequate infrastructure, judicial delays
and expense must be addressed on a
priority basis.
There is a need to check the commerciali-
sation of the legal profession, government
apathy and rivalry towards the judiciary and
improve access to the system for the
common man.
With regard to the criminal justice system,
everything is in disarray and mess—from
shoddy investigation to dysfunctional prose-
cution and lethargic adjudication. A supervi-
sory mechanism must be set up to check
lethargic judging and all factors which lead
to delays in trials with people languishing in
jails and serving longer terms of sentence
than prescribed under laws and thereby los-
ing faith in the system.
Investigating and prosecution agencies
must be made independent so that they are
not found changing colours with the change
of political dispensation.
The government must increase investment
in the judicial system which is an important
limb of the State under the Constitution. The
investment allocated in this budget is too
low. One has only to experience the miser-
able conditions and the atmosphere prevail-
ing in our courts to realise why infusion of
funds is paramount.
The apex court should be deciding
constitutional issues and legal matters of
public importance, rather than spending
public time on matters like PILs, SLPs, etc,
which should be left to be considered by
other forums.
As long as judicial intervention is allowed
to meet the ends of justice and is within the
framework of the Constitution and law, it
must be accepted. Now scrutiny mechanisms
are in place in High Courts to prevent any
misuse of PIL jurisdiction.
The issue of corruption in the judiciary
must be dealt with cautiously to avoid any
threat to the independence of the institution.
SOMEADVICEFROM
THEBADSHAH
Inderjit Badhwar
N
JusticeBashirAhmedKhanhasservedinvarioushighcourtsandis
currentlythechiefoftheJammuandKashmirStateAccountability
Commission.IcaughtupwithhimrecentlyinDelhiandpersuadedhimto
talkofthemajorchallengesfacingthejudiciary,including,loopholesinthe
system,corruptionandlackofaccountability.
Letter from the Editor

It is nobody’s case that all is well in the judiciary
and that only saints washed in milk and honey
are running it. There are black sheep present
but to paint the whole institution with a tarred
brush is unjustified and unacceptable.
There is a need for enforcing judicial account-
ability and standards in the system, for which
efforts have been made since 1968 when the
Judges Inquiry Act was enacted. Thereafter, leg-
islations in this regard were brought before
Parliament but were allowed to lapse.
Of late, one witnesses a pattern of targeting
successive chief justices of India. There is actu-
ally a need to check this trend while enacting
any law related to judicial accountability
because the independence of the judiciary needs
to be protected to sustain people’s faith and con-
fidence in the institution.
Anti-corruption mechanisms are created only
for a political purpose. There is no intent to
make these effective or potent to facilitate good
governance. It is imperative that they are
empowered and allowed to function freely and
fairly to achieve the purpose for which they were
set up.
Lokayuktas in states should be empowered
and allowed to function freely and fairly to
achieve the purpose for which they were set up.
The same is the case with the Lokpal and it
must survive the political on-slaughts for the
sake of national interest.
The judiciary is the custodian of the
Constitution and the rights of the people.
Governments will come and go but the institu-
tion of the judiciary will grow as a bulwark in
defense of the rights of the people.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
LEGAL ADVICE
(Top) Justice Bashir
Ahmed Khan; (above)
lawyers at the District
And Sessions Court
Gurugram
Anil Shakya
| INDIA LEGAL | July 29, 2019 5

The apex court has created a new chapter in environmental protection by saying that the treasures of
nature are for all generations to come, thereby stressing that the integrity of the environment is a basic
human right. An analysis of the Meghalaya mining case by Prof Upendra Baxi
ContentsVOLUME XII ISSUE37
JULY29,2019
OWNED BY E. N. COMMUNICATIONS PVT. LTD.
A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309
Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411
e-mail: editor@indialegalonline.com
website: www.indialegallive.com
MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri,
Mumbai-400058
RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar,
Ranchi-834002.
LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj,
Lucknow-226001.
PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak,
Opposite Lalita Hotel, Patna-800023.
ALLAHABAD: Leader Press, 9-A, Edmonston Road,
Civil Lines, Allahabad-211 001.
Chief Patron Justice MN Venkatachaliah
Editor Inderjit Badhwar
Senior Managing Editor Dilip Bobb
Deputy Managing Editor Shobha John
Executive Editor Ashok Damodaran
Contributing Editor Ramesh Menon
Deputy Editor Prabir Biswas
Senior Writer Vrinda Agarwal
Art Director Anthony Lawrence
Deputy Art Editor Amitava Sen
Senior Visualiser Rajender Kumar
Photographers Anil Shakya, Bhavana Gaur
Photo Researcher/ Kh Manglembi Devi
News Coordinator
Production Pawan Kumar
CFO
Anand Raj Singh
Sales & Marketing
Tim Vaughan, K L Satish Rao, James Richard,
Nimish Bhattacharya, Misa Adagini
Circulation Team
Mobile No: 8377009652, Landline No: 0120-612-7900
email: indialegal.enc@gmail.com
PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd
andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80,
PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany
languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor
permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof
writersinthemagazinearenotnecessarilyendorsedby
ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe
returnofunsolicitedmaterialorformateriallostordamagedintransit.
AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd.
Senior Content Writer Punit Mishra
(Web)
LEAD
12Democracy’s Dark Hour
Why did the resignation of Congress MLAs in Karnataka require the intervention of the Supreme
Court? The Court’s judgment favours the rebels, and with the governor stepping in, questions arise
about separation of powers among the Legislature, Executive and Judiciary
20Milestone for Environmental Justice
6 July 29, 2019
LEGALEYE
16A Case of Plenty
The Bombay High Court is hearing a matter involving Bhushan Power and Steel which has defrauded
PSBs to the tune of thousands of crores. With the charge sheet running into over 70,000 pages and
naming 284 persons as accused, this is a first for Indian courts
SUPREMECOURT

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design:
ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is that Legal....................10
International Briefs..........37
Media Watch ..................45
Satire ..............................50
All at Sea
Though the Supreme Court has asked the
Punjab and Haryana governments to resolve
the contentious issue of the Sutlej–Yamuna
Link Canal, there is little hope of an amicable
solution in the near future
48
Archaic
Addresses
The Rajasthan High Court has
asked lawyers and litigants to stop
the practice of addressing judges
as “My Lord” and “Your Lordship”
22
A Bridge Too Far
Laudable as it is, the aim of Delhi High Court Chief Justice Dhirubhai
Naranbhai Patel to dispose of all pending cases within a three-month
timeframe looks virtually impossible
24
No Country
for Children
With child rapes on the rise, the apex court has
taken suo motu cognisance and decided to set
guidelines to deal with them, while the cabinet
has given its nod to amending the POCSO Act
COURTS
The Madras High Court has ruled that recruiting people with high
educational qualifications for menial jobs in government would result
in lowering the efficiency level in public administration
Smart and Unfit 26
Justice Bashir Ahmed Khan, a legal
luminary with a decades-long career
in law and public life, spoke to India
Legal editor Inderjit Badhwar about
the challenges before the judiciary
and the way forward
Bolster the
Edifice
Rating Reforms
The government is contemplating greater regulation for credit ratings
agencies. This will not prevent another IL&FS. It will only increase
compliance costs and prevent the entry of new innovative companies
ECONOMY
Home Rule
The proposed Model Tenancy Act
should make it easier to rent
houses, benefitting both landlords
and tenants. But states will need
to constitute rent courts and rent
tribunals first
38
42
INTERVIEW
FOCUS
The Killing
Fields
In a positive development, the UP Law
Commission has submitted a draft bill
recommending punishment up to life term
for those found guilty of lynching
46
STATES
30
ACTS&BILLS
34
Plugging the Loopholes 40
With the DNA Profiling Bill being passed by the cabinet, foolproof DNA technology will
result not only in speedier justice delivery but also increased conviction rates

8 July 29, 2019
“
“It is a good mo-
ment for us to help
(Kulbhushan)
Jadhav get justice
and ensure he gets a
fair trial.”
—Senior advocate
Harish Salve, India’s
lead counsel in the
Jadhav case, after the
recent ICJ verdict
“But many people
are saying now. I,
too, believe Priyan-
kaji should become
the Congress presi-
dent. She belongs
to the Gandhi
family. She is a
leader and has the
quality to lead
the party. She
is dynamic.”
—Former Union
minister Sriprakash
Jaiswal to The
Indian Express
“Yashwant Sinha
could have become
the first reformist
Finance Minister of
the country but he
was prevented from
presenting a budget
that could have
changed the eco-
nomic landscape of
the country.”
—Former President
of India Pranab
Mukherjee
“American roads are
not good because
America is rich, but
America is rich
because American
roads are good.”
—Union Road,
Transport and
Highways minister
Nitin Gadkari,
quoting former
US President John
F Kennedy in
Parliament
“The BJP is still mis-
using its government
in the Centre to ha-
rass its rivals by for-
cefully lodging false
cases as part of a co-
nspiracy. As part of
this sequence, my
brothers...sisters are
being harassed....”
—BSP chief Maya-
wati on the IT depart-
ment attaching a plot
belonging to her bro-
ther, Anand Kumar
“In the Muslim reli-
gion, you know that
people keep 50
wives and give birth
to 1050 children.
This is not a tradi-
tion but an animal-
istic tendency. In
society, giving birth
to only two to four
children is normal.”
—Surendra Singh,
the BJP MLA from
Ballia, UP, to a news
agency
“I am scared for my
life. I am scared for
my family as well.
This is a secular
country, and it is our
democratic right to
take part in any reli-
gious festival.”
—Ishrat Jahan of the
triple talaq case after
she was threatened
by locals for attend-
ing a Hindu religious
event in Kolkata
“History has witnessed how great institutions
have been brought to the knees by the wicked
and the vile.... The threat from such people has
always been the greatest to institutions like the
judiciary which do not pander to any particular
interest or bow to powerful coteries that breed in
nooks and dark corners....”
—CJI Ranjan Gogoi at the inaugural function of the Supreme
Court’s new Additional Building Complex in Delhi
Anthony Lawrence
RINGSIDE
Assam: Proof of Life

Courts
—Compiled by India Legal Team
In the ongoing dispute between India and
Pakistan over former Indian Navy officer
Kulbhushan Jadhav, the International Court
of Justice (ICJ) at The Hague ruled in India’s
favour and confirmed Jadhav’s right to have
consular access. By a 15:1 verdict, the ICJ
stayed the death sentence awarded to
Jadhav by a Pakistan military court and ask-
ed Pakistan to review and reconsider the
sentence. The sole dissenting vote came
from a judge from Pakistan. The long-drawn
case has been fought between India and
Pakistan with the former alleging that Pak-
istan violated the provisions of the Vienna
Convention by repeatedly denying New Delhi
consular access to Jadhav. The 49-year-old
officer was sentenced to death by a Pakistan
military court on charges of “espionage and
terrorism” after a closed trial in April 2017.
Pakistan claims that its security forces
arrested Jadhav from restive Balochistan
province on March 3, 2016, after he report-
edly entered from Iran. India, however, main-
tains that Jadhav was kidnapped from Iran
where he had business interests after retiring
from the Navy.
2 witnesses depose
in MJ Akbar case
ICJ relief for Kulbhushan Jadhav
The hearing in the defamation
case filed by editor-turned-
politician MJ Akbar against jour-
nalist Priya Ramani resumed at a
Delhi court on July 17 with two
more witnesses testifying in favour
of the former minister. The two are
Tapan Chaki and Sunil Gujral, both
long-term friends and associates
of Akbar. Chaki reportedly told the
court that “the tweets and publica-
tions by Priya Ramani have
caused enormous damage to his
(Akbar’s) reputation… there has
never been an occasion where
anybody has mentioned anything
remotely resembling such allega-
tions.” Gujral told the court that he
had never heard anything negative
about Akbar and that his reputa-
tion in society was impeccable.
The matter will be heard next on
August 2.
The Bombay High Court quash-
ed the Coastal Regulation Zone
(CRZ) clearances granted to the
`14,000-crore coastal road proj-
ect, citing “serious lacuna” in the
decision-making process and lack
of proper scientific study. The
Court said the Brihanmumbai
Municipal Corporation (BMC) can-
not proceed with work on the
29.2-km-long road without obtain-
ing environmental clearance under
the Environmental Impact Assess-
ment (EIA) notification and the
Wildlife Protection Act, 1972.
Two days after a Ranchi court passed a
strange order directing a teenager, Richa
Bharti, to donate five copies of the Quran to
educational institutions as one of the condi-
tions for her bail, it reversed the order.
Bharti, a 19-year-old BCom student at a
Ranchi college, was arrested after she alle-
gedly posted content targeting Muslims on
WhatsApp and Facebook. On July 15,
Magistrate Manish Singh granted her bail on
the condition that she donates five copies of
the Quran to government schools and col-
leges. She expressed her unhappiness over
the condition while several people took to
social media to criticise Singh. The Ranchi
district bar association also announced a
48-hour boycott of Singh’s court in protest.
On July 17, Singh modified the order after
the investigating officer of the case urged the
court to do away with the condition as there
were difficulties in its implementation.
Ranchi court drops
Quran condition for bail
Anew building complex of
the Supreme Court was
inaugurated by President
Ram Nath Kovind on July
17. Chief Justice of India
Ranjan Gogoi, Law Minister
Ravi Shankar Prasad, Att-
orney General KK Venu-
gopal and several other
dignitaries were present at
the occasion. The new
complex is spread across
12.19 acres at Pragati
Maidan and has five func-
tional blocks and one serv-
ice block. It will be used for
offices, storing of records,
library and have an auditori-
um/seminar hall, conference
halls, litigants hall and park-
ing. The basement of the
complex is connected to the
main Supreme Court cam-
pus by three all-weather
underground passages. The
occasion also marked the
release of the first set of
the apex court’s verdicts
translated into nine ver-
nacular languages, a proj-
ect which was launched
last month to make imp-
ortant judgments accessi-
ble to a wider audience.
Apex court gets new complex at Pragati Maidan
Bombay HC setback
for coastal road

ISTHAT
Is there a way by which one can seek
speedy redressal of complaints related to
cheating or harassment by banks?
If you have an issue with a bank, the first
step should be to approach it, raise the
issue and register a complaint. Every
bank has a system to redress grievances.
In case, the bank rejects the complaint
within a month or does not respond with-
in that time period or the response given
within that period is unsatisfactory, you
can approach the Banking Ombudsman. It
is a quick and hassle-free forum for solv-
ing issues on certain services provided
by banks.
The Banking Ombudsman is a senior
official appointed by the Reserve Bank of
India to redress customer complaints
against banks under the grounds of com-
plaint specified under Clause 8 of the
Banking Ombudsman Scheme 2006 (as
amended up to July 1, 2017). A Banking
Ombudsman does not charge any fee.
There are several Banking Ombudsmen
appointed at offices located in many state
capitals of India.
Complaints can be filed by writing a
letter addressed to the concerned
Ombudsman. These can also be filed
online or through emails. One can even
track his/her complaints. For details, go
to the RBI website.
— Compiled by India Legal team
A Forum For Bank
Complaints
What are the legal consequences of
giving false evidence in a court of law?
According to Section 193 of the IPC:
“Whoever intentionally gives false evi-
dence in any stage of a judicial pro-
ceeding, or fabricates false evidence
for the purpose of being used in any
stage of a judicial proceeding” will
face imprisonment for a maximum
period of seven years and could also
be fined. There are various cases in
which the court has taken strict cogni-
sance in the matter pertaining to giving
false evidence. The cases of mislead-
ing or giving false affidavit in the court
are non-compoundable in nature, that
is, the parties concerned can’t enter
into a compromise at any stage of
the trial.
Grave Offence,
No Room for
Compromise
?
10 July 29, 2019
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Is it possible to personally argue
a case in court?
Yes, it is possible. One has to
submit a plea to the court for
the same as per the require-
ments of the law. Section 32 of
the Advocates Act has a provi-
sion to allow any person to argue
his own case even though he is not
enrolled as an advocate. Article 19 of
the Constitution also
bestows the right
to practise any
profession, inclu-
ding law. How-
ever, it is the dis-
cretion of the court whe-
ther to allow the person to argue
his case or not.
If one is appearing for himself in a
case as he can’t afford a lawyer, there
are free legal aid services available in
most of the courts in India.
Right to Defend a
Case Personally
What is defamation? Can anyone be pun-
ished if convicted for defaming someone?
Defamation is an oral or written statement
that harms a person’s reputation. It could be
civil or criminal in nature as per the plea. The
Indian Penal Code has taken due note of
defamation under Section 499 which says:
“Whoever, by words either spoken or intend-
ed to be read, or by signs or by visible repre-
sentations, makes or publishes any imputa-
tion concerning any person intending to
harm, or knowing or having reason to believe
that such imputation will harm, the reputation
of such person, is said, except in the cases
hereinafter expected, to defame that per-
son...” Section 500 of the IPC that deals with
punishment for defamation says that “whoev-
er defames another shall be punished with
simple imprisonment for a term which may
extend to two years, or with fine, or
with both.”
No right to defame

Lead/ Karnataka Crisis
12 July 29, 2019
Democracy’s
Dark HourWhydidtheresignationofCongresslegislatorsinKarnatakarequiretheintervention
oftheSupremeCourt?Theapexcourt’sjudgmentfavourstherebelsand,withthe
governorsteppingin,questionsariseabouttheseparationofpowersamongthe
Legislature,theExecutiveandtheJudiciary
By Vivek K Agnihotri
POWER GAME Karnataka CM HD Kumaraswamy (left) and state BJP chief BS Yeddyurappa arguing in the Assembly
Photos UNI

HE Karnataka Assembly
was overwhelmed by a
quick succession of events
recently. First came the
piecemeal resignations of
15 MLAs to the Speaker,
which was followed by a vociferous de-
mand for their disqualification. Chief
minister HD Kumaraswamy, undeterred
by these developments, said that he
would prove his majority on the floor of
the House. Simultaneously, there was a
demand from the Opposition that the
chief minister seek a vote of confidence.
In due course, the matter relating to the
resignations and disqualification of leg-
islators landed at the doorstep of the
Supreme Court.
What is so special about the resigna-
tion of the legislators that it required the
intervention of the Supreme Court? Af-
ter all, it was somewhat inconsistent
with the doctrine of separation of pow-
ers among the Legislature, the Judiciary
and the Executive.
This conundrum goes back to the
2018 assembly elections in Karnataka
when the BJP emerged as the single
largest party with 104 MLAs, but fell
short of a majority in the 224-seat
House. The other two major parties—
the Congress (78 MLAs) and the Janata
Dal (Secular) (37 MLAs)—then joined
hands to form the government. This
spelt disappointment for the majority
party, which had initially staked an
unsuccessful claim to form the govern-
ment in the state.
Cutting back to the present, the saga
started unfolding in early July. Over July
1-10, 15 MLAs belonging to the ruling
coalition, ostensibly submitted their res-
ignations to the Speaker. In the mean-
while, the Congress petitioned him seek-
ing disqualification of its MLAs for
defection under the Tenth Schedule of
the Constitution. Some of the resigna-
tion letters filed were reportedly not
in order.
While the Speaker was mulling the
claims and counter-claims and verifying
the authenticity of the resignation let-
ters, 10 of the rebel MLAs filed an app-
lication before the Supreme Court seek-
ing a direction to the Speaker to take an
expeditious decision on their requests
for resignation. The Speaker too
approached the Supreme Court and
argued that he could not be directed to
take a decision on the resignation letters
immediately as he had to verify them
and that disqualification petitions agai-
nst the same MLAs were also pending.
The Supreme Court in its interim
order on July 11 directed the MLAs to
appear before the Speaker by 6 pm that
day to complete the formalities. It also
directed the Speaker to take a decision
on the resignations “forthwith or in the
course of the remaining part of the day”.
The case was adjourned to July 12. All
the rebel MLAs, pursuant to the Supre-
me Court’s direction, met the Speaker
and tendered their resignations in per-
son. The Speaker, however, was of the
view that the decision on the resignation
letters required verification in order to
ascertain whether they were “genuine
and voluntary”. On July 12, the Court
T
PRESSURE TACTIC?
The BJP MLAs led by Yeddyurappa decided
to stay overnight in the Assembly on July 18
till the time the trust vote took place
Twitter/ ANI

Lead/ Karnataka Crisis
14 July 29, 2019
adjourned the case till
July 16 and stayed any
action by the Speaker.
Around the same
time, Kumaraswamy
announced that he
would seek a trust vote
in the assembly. There
was a counter demand
from the BJP that the
government should prove its majority on
the floor of the House. Finally, the vote of
confidence was scheduled for July 18.
T
here are several issues here—the
decision on the resignation let-
ters of the rebel MLAs, disqualifi-
cation under the Tenth Schedule and
the vote of no-confidence/confidence.
There is also the role of the Speaker and
whether the Court can give directions to
him in this regard.
Article 190 of the Constitution pro-
vides that an MLA may resign by writ-
ing to the Speaker or the Chairman, as
the case may be. In making his decision,
the Speaker/Chairman may make such
enquiries as he thinks fit. He shall acc-
ept the resignation if he is satisfied that
it is voluntary and genuine.
Correspondingly, Rule 202 of the
Rules of Procedure and Conduct of
Business in the Karnataka Legislative
Assembly, 2018, prescribes a simple
form for the member to intimate his
intention to resign. It further provides
that the member shall hand over the let-
ter of resignation to the Speaker person-
ally and inform him that it is voluntary
and genuine. If the Speaker has no
information or knowledge to the con-
trary, and if he is satisfied, he may
accept the resignation immediately. If,
however, he receives the letter of resig-
nation either by post or through some-
one else, he may make such enquiry as
he thinks fit to satisfy himself that it is
voluntary and genuine. If the Speaker,
after making a summary enquiry, either
himself or through the agency of the
assembly secretariat or through such
other agency is satisfied that the resig-
nation is not voluntary or genuine, he
shall not accept it. The provision in the
Rules of Business of the Karnataka
Legislative Assembly is pari passu (sim-
ilar) with Rule 240 of the Rules of Pro-
cedure and Conduct of Business in Lok
Sabha, 2014.
It is thus clear that the Speaker has
to take such steps as he considers neces-
sary to satisfy himself that the resigna-
tion is voluntary and genuine, particu-
larly if the resignation is not submitted
by the member in person. Not handing
over the letters of resignation in person
was one of the lacunae which the Sup-
reme Court sought to rectify by asking
the members to appear before the
Speaker and submit their resignations
in person.
High Courts in their decisions in
Thankamma vs The Hon’ble Speaker,
Legislative Assembly, Travancore-
Cochin State and Anr and Surat Singh
Yadav vs. Sudama Prasad Goswami
and Anr have amply clarified that it is
up to the Speaker to enquire whether
the letter was actually sent by the mem-
ber concerned and whether the resigna-
tion is voluntary. Further, in a writ peti-
tion filed for non-acceptance of the res-
ignation of Amitabh Bachchan from the
Allahabad seat, the High Court there
said that a resignation contemplated
under Article 101 (3)(b) of the
Constitution is a matter between the
Member of Parliament and the Speaker.
It is absolutely the prerogative of
the Speaker.
In the case of some MLAs resigning
from the Karnataka assembly, the Spea-
ker, KR Ramesh Kumar, in his applica-
tion to the Supreme Court, raised the
following two issues—can the apex court
fix a deadline for him to decide on the
resignations and is the Speaker constitu-
tionally obligated to decide the question
of disqualification of the legislators
before taking a call on the resignation
letters. He further averred that, being a
constitutional functionary, he cannot be
directed to first decide on the resigna-
tions of the MLAs and thereafter on the
pending disqualification applications.
The rebel MLAs, on the other hand,
were of the view that acceptance of their
letters of resignation was a simple mat-
ter, particularly when they had submit-
ted them in person to the Speaker.
The matters relating to disqualifica-
tion of the members added another
dimension to the issue of resignations.
The ruling coalition had issued a whip
to their members to attend the assembly
SpeakerKRRameshKumarhastosatisfy
himselfthattheresignationsarevoluntaryand
genuine,particularlyiftheyarenotsubmitted
bymembersinperson.Nothandingoverthe
lettersofresignationinpersonwasoneofthe
lacunaewhichtheSCsoughttorectify.
Photos UNI

which was summoned to meet on July
12. Further, when the motion of confi-
dence is taken up in the Assembly, there
may be a further whip to vote in its fa-
vour. In case the rebel MLAs abstain
from or vote against the motion, they
would be liable to incur disqualification
in terms of the Tenth Schedule of
the Constitution.
Taking a decision on disqualification
is a time-consuming process as it entails
conducting an inquiry, recording evi-
dence and passing a speaking order,
which is open to judicial scrutiny. There
are instances when the matters could
not be disposed of for several years.
If, therefore, the applications relating
to disqualification of the rebel MLAs are
taken up first, they shall continue to be
members of the ruling coalition and will
be ineligible to become ministers till
such time as their cases are decided;
and then too, only after they get elected
again in the event of their incurring dis-
qualification.
Article 164 (1B), inter alia, provides
that if a member of a legislative assem-
bly is disqualified under the Tenth Sche-
dule, he shall also be disqualified to be
appointed a minister till the date on
which he is declared elected or till the
date on which the term of his office as a
member expires. On the other hand, if
their resignations are accepted, the mat-
ter relating to their disqualification will
abate, and they can be appointed as
ministers straightaway, without having
to get elected immediately as the law
allows a person to be sworn in as a min-
ister and provides six months for the
person to get elected to either House of
the legislature (Article 164 (4)).
O
n July 17, a three-member
bench of the Supreme Court,
headed by Chief Justice Ranjan
Gogoi, found a laudable solution to the
conundrum. In its verdict, it stated:
“Discretion of the Speaker should not be
fettered by any direction from
the court....The Speaker is free to decide
according to rules....The Karnataka
Speaker cannot be forced to take a deci-
sion within a time frame.”
The Court, thus, gave complete
authority to the Speaker to
decide upon the resignations of
the rebel MLAs and decide the
matter as he deemed fit.
Simultaneously, the apex
court dismissed the party whip
issued by the Congress and
JD(S) whereby all MLAs were
asked to attend the proceedings
in the Karnataka assembly on
July 18, saying that “MLAs can-
not be compelled to participate
in the proceedings of the house”.
The bench said that there are
rival claims on the issue of resig-
nation and disqualification of
MLAs and that it was “imperative to
maintain constitutional balance”. BS
Yeddyurappa resigned in 2018 when
asked to take the floor test after having
been sworn in as the chief minister by
virtue of being the leader of the single
largest party in the assembly.
There is a lone voice that asks:
“What is the role of the electorate in
such imbroglios?” Should not the resig-
nation of a people’s representative re-
quire the leave of the electorate? In
Panna Lal Agyan and Ors v. Hon’ble
Speaker, Shri Balram Jakhar and Ors
the question was answered in the nega-
tive. Members of Parliament/state legis-
latures can resign their membership as
and when they desire to do so. It is a
personal matter of the concerned mem-
ber and he can do so without taking the
leave of the electorate. Even the ethics
or morality of resignation is not a matter
to be enquired into.
Is there a need to revisit this verdict?
—The writer is former Secretary-
General, Rajya Sabha
TIME TO STRIKE
BJP MLAs display placards
demanding the resignation of Chief
Minister HD Kumaraswamy in the
Vidhana Soudha
Takingadecisionondisqualificationof
legislaturesisatime-consumingprocess
asitentailsconductinganinquiry,record-
ingevidenceandpassingaspeaking
order,whichisopentojudicialscrutiny.

Legal Eye/ Bhushan Case
16 July 29, 2019
HE charge sheet alone
runs into over 70,000
pages. The case involves
284 individuals as accused
and a Mumbai court took
four hours 45 minutes just
to mark the attendance of all the acc-
used. If one assumes one lawyer per
accused, the total strength will be over
570 which will be impossible to accom-
modate in one courtroom; in fact, it may
require an entire stadium, according to
one of the lawyers involved in this
humongous case. If each of the accused
and the plaintiffs are to be given a hard
copy of the charge sheet, it will require
over two crore pages to be printed.
The case is to do with Bhushan
Power and Steel Limited (BPSL), acc-
used of misusing funds by fraudulently
diverting `47,204 crore from the loan
accounts of Punjab National Bank (New
Delhi and Chandigarh), Oriental Bank
of Commerce (Kolkata), IDBI Bank
(Kolkata) and UCO Bank (Kolkata) to
the accounts of various shell companies
without any obvious purpose. Now,
Allahabad Bank has also discovered that
a similar diversion of funds worth `1,775
crore had taken place after a forensic
audit of their dealings with BPSL. The
Serious Fraud Investigation Office
(SFIO), which is the investigation wing
of the Ministry of Corporate Affairs
(MCA), has filed the charge sheet aga-
inst BPSL in compliance with the order
of the Supreme Court which states that
all the accused alleged to be involved in
the offence should be charged and then
it is up to the court to decide who will
stand trial.
Senior counsel Vijay Aggarwal, who
is representing some of the accused in
the case, has stated: “By arraying so
many accused, the agency has ensured
that the trial may not finish in the life-
time of the present lawyers and the
accused persons. As there are over 200
accused, the trial cannot be held in the
courtroom, they should have an alterna-
tive venue. Also, the agency has to print
over two crore pages if a hard copy of
the charge sheet is to be supplied to
each accused, which is mandatory as per
Section 207 of the Code of Criminal
Procedure (CrPC).”
The closest the SFIO has come to
these mindnumbing numbers was in the
IL&FS case where the charge sheet ran
into 32,000 pages. Earlier, the charge
sheet in the Bombay bomb blast case in
1993 required 10,000 pages.
Experts say that the length of the
charge sheet is defined by the investiga-
tions being done along with the time
being taken to decide the matters. These
matters rely heavily on documentary
evidence. Senior counsel Hiten Venaga-
onkar has stated: “The Supreme Court
has made it clear that if there is a case
against a person, a charge sheet has to
be filed against him. The prosecution
cannot decide who to drop and who to
include.” He added, “Economic offences
are based on documents. If one docu-
ment goes missing or is misplaced, it
Mother of
all Cases
TheclosesttheSFIOhascometothese
numberswasintheIL&FScasewhere
thechargesheetcovered32,000pages.
Earlier,inthe1993Bombaybombblast
case,itraninto10,000pages.
MAKING DUBIOUS HISTORY
The CBI has issued a look out circular against
Sanjay Singal, chairman of BPSL, and his wife
T
Rarely,ifever,haveIndiancourtsdealtwith
acasethatbogglesthemindintermsof
thesheernumbersinvolved.TheBombay
HCiscurrentlyhearingacaseinvolvingthe
husband-wifepromotersofBhushanPower
andSteelwhichhasdefraudedpublicsec-
torbankstothetuneofthousandsof
crores,atragicbutfamiliarstory

could delay the trial. Therefore, a
70,000-page document will have a bear-
ing on the duration of the trial.”
S
enior counsel Sanjay Shourie, who
is representing the MCA in the
BPSL matter, is confident that the
number of accused will not be a prob-
lem. “The case is being heard by a spe-
cial court. It’s a strong case where the
role of individuals is well defined.” BPSL
has been named in the charge sheet by
the SFIO, along with 283 other accused.
Apart from SFIO, the Central Bureau of
Investigation (CBI) and the Enforce-
ment Directorate (ED) are also probing
this case. The charge sheet says that the
company diverted the funds through its
directors and staff. It did so allegedly by
availing of various loan facilities from 33
banks/financial institutions between
2007 and 2014 to the tune of `47,204
crore and defaulted on repayment. Sub-
sequently, the lead banker, PNB, dec-
lared the account a non-performing
asset followed by other banks and finan-
cial institutions.
According to the probe agency, the
accused entered into a criminal conspir-
acy with unknown public servants of
banks and others to cheat banks, finan-
cial institutions and the government
exchequer. “The accused dishonestly and
fraudulently diverted huge amount of
bank funds through companies/shell
companies/entities etc and deliberately
defaulted in repayment and also claimed
inadmissible CENVAT (Central Value
Added Tax) credit,” says the charge
sheet. According to the agencies invol-
ved in probing the case, the accused
used the bank funds for purposes other
than those sanctioned by the banks, by
using forged documents and falsifying
the accounts, causing fraud to the tune
of `2,348 crore to the lending banks,
financial institutions and government
exchequer.
Sources say that investigators are
probing the entire `47,204 crore which
BPSL owes to these banks. The CBI
issued a look out circular (LoC) against
Sanjay Singal, chairman of BPSL, and
his wife, Aarti Singal, vice-chairman
Bhushan Power & Steel Limited started
small in 1970, manufacturing door
hinges. Expansion came when it started
making rail fasteners for Indian Rail-
ways. By 1973, it had set up its first big
plant in Chandigarh and expanded rap-
idly after that, setting up steel making
facilities in Kolkata and Mohali but the
big break came when it invested big
time in Odisha, enhancing its reputation
and order book by importing sophisti-
cated machinery from Japan to supply
specialised steel to India’s nascent
automobile industry. Banks were eager
to lend to a company with an impressive
roster of clients like Maruti Suzuki,
Mahindra & Mahindra, and Tata Motors.
In 2011, the eldest brother broke away
from the family business—maybe, he
saw the coming storm. Steel is a cycli-
cal business, and as Chinese demand
tapered after the 2008 Olympics, prices
plummeted as fast as they had once
peaked. For BPSL, it was a warning
signal. Prices dropped as did profits
and, by 2010, BPSL was sitting on
unpaid loans worth `11,404 crore.
Banks faced a dilemma: declare the
loans NPAs or keep on lending and
hope the sector would revive. By 2014,
BPSL was spending more than `1,600
crore a year in interest payments alone,
according to its 2014 annual report.
That year, the banks had extended
almost `18,000 crore in fresh loans and
working capital, the only security being
the company’s stock—the Singals
owned 70% of the stock. The first red
flag was raised when the CBI, acting on
a tip-off from a bank insider, discovered
that BPSL had defaulted on a `100
crore loan repayment to Syndicate Bank
and allegedly bribed the bank chairman,
SK Jain, for a credit extension. “Fresh
credit was extended to M/s BSL by
Syndicate Bank and as a token an ille-
gal gratification of `10 lakh was paid to
Shri Sudhir Kumar Jain,” said the CBI’s
FIR. When Neeraj was arrested on
August 7, 2014, Bhushan stock tum-
bled. In 2017, the SBI-led lender consor-
tium asked Deloitte India to conduct a
forensic audit. In court, Bhushan’s
lawyers said Deloitte found no signs of
malfeasance. Deloitte was left red-faced
when by June 2017, the probe by vari-
ous agencies had uncovered the extent
of the fraud.
TheRiseandFall
The$1.8billion(revenues)unlisted
BhushanPowerandSteelLimitedhas
sevensteelplantsinnorthernandeast-
ernIndiaandcountsBaringPrivateEquity
asaminorityinvestor.

Legal Eye/ Bhushan Case
18 July 29, 2019
of the company. Earlier, on April 6, the
CBI conducted searches in multiple
locations at the offices and residential
premises of New Delhi-based BPSL,
in Delhi-NCR, Chandigarh, Kolkata
and Odisha. The agency filed an FIR
against the company, its directors,
unidentified public servants and other
private persons, including high-level
employees of the banks involved in
the case. According to the FIR, the
accused used forged documents and
falsified accounts.
Sanjay is the eldest son of Brij
Bhushan Singal, ranked among India's
richest 100. He was embroiled in a
decade-long feud with his father and
younger brother, Neeraj. After a family
settlement in 2011, all cross-holdings
were removed. He now runs the $1.8
billion (revenues) unlisted Bhushan
Power and Steel Limited, which has
seven steel plants in northern and east-
ern India and counts Baring Private
Equity as a minority investor. His wife,
Aarti, is the vice-chairperson. His
daughter, Radhika, is married to
Saurabh Dhoot, nephew of Videocon
chairman Venugopal Dhoot, another
Indian rich lister.
The country’s top fraud watchdog
SFIO has arrested BPSL’s former chief
financial officer and director, Nitin
Johri, who was subsequently granted
bail by the Patiala House Court. Johri
was in charge of raising funds for the
company from banks and reported
directly to the chairman. The agency
also arrested Neeraj Singal in August
last year.
I
ts annual reports show that till
2014, the company was making
profits but by 2017, it had run up
massive losses. It is now one of the 12
largest indebted companies named by
the Reserve Bank of India to face liqui-
dation proceedings. The company’s total
debts stand at `46,062 crore, about the
same as India’s budgetary outlay on
school education in 2017. BPSL is part
of the “NPA crisis”, shorthand for `8-
lakh crore worth of loan defaults or
non-performing assets that have choked
India’s banking system and pushed
lending, the lifeblood of the economy,
to its lowest point in 20 years. It is the
classic story of how profitable compa-
nies slide into the red and yet, because
of their corporate stature and earlier
financial record, manage to get massive
loans from PSU banks, often co-opting
senior bank employees to facilitate
the loans.
Now, the case that is making history
in a Mumbai court will establish just
how big the fraud really was and who
were the others involved in the massive
and illegal diversion of funds. The
SFIO’s look out notice against Sanjay
Singal and his wife is to pre-empt the
Singals doing a Nirav Modi and Mehul
Choksi and relocating abroad. Sanjay
Singal, however, remains optimistic.
In his annual speech to shareholders in
2017, he had remarked that “the future
is challenging”, probably the understate-
ment of the century.
—By India Legal Team
VICTIM OR ABETTOR?
State-owned Punjab National Bank and
Allahabad Bank are among the lenders that
have reported fraud worth crores by BPSL

Supreme Court/ Meghalaya Mining Case
20 July 29, 2019
N the hustle and bustle of the day,
one abiding principle of the admin-
istration of justice tends to be over-
looked. Last week, we highlighted
the Supreme Court decision in
Asian Resurfacing Case (India
Legal, July 22, 2019) which took giant
strides in limiting stay/interim/inter-
locutory orders—SIIO. Although not
directly concerned with the SIIO regime,
the expedition in bringing this complex
environmental matter to a conclusion is
indeed remarkable.
In Lber Laloo V All Dimasa Students
Union Hasao District Committee & Ors.
(the Meghalaya En. Case, hereafter
referred to as MEC), decided on July 03,
2019, expedition outshined long adjudi-
catory delays. Various civil appeals ques-
tioning the National Green Tribunal
(NGT) jurisdiction and judgment which
ordered Meghalaya to put `100 crore
into an environmental fund for arresting
further degradation of the environment
were filed between 2018 and 2019. The
NGT decided on the matter on August
31, 2018, and its origins lay in a suo
motu petition by the Gauhati High Court
based on a news item. The item on July
06, 2012, said that at least 30 labourers
were trapped inside a coalmine in the
district of South Garo hills and 15 of
them had died.
This matter was referred to the NGT
on December 10, 2012. Even though it
took nearly six years to settle, the overall
judicial expedition was remarkable, for
at the heart of the litigation was the
jurisdiction of the NGT to explore such
matters. The fact that suo motu jurisdic-
tion was assumed by the High Court and
the NGT passed such remarkable direc-
tions is worthy of popular understanding
and acclaim. At issue was the unregulat-
ed practice of “rat hole mining” (by
which the area was flooded), said to be
widespread in Meghalaya.
THE JURISDICTIONAL TANGLE
The high costs and profits of coal mining
ensured that the concerned companies
would challenge the jurisdiction of the
NGT, a threshold plea that would not
have been quite cogently made in a suo
motu proceeding in a High Court. It is,
therefore, not a matter of surprise that
the Western Coal Miners and Exporters
Association made some submissions. But
an application was also allowed by two
autonomous Khasi hill councils urging
that as constitutional bodies, they were
entitled to a share of royalties in mining
agreements. As constitutional bodies, the
directive principles and fundamental
duties of all citizens (crystallised in Parts
IV and IV-A of the Constitution) clearly
stipulate some crucial obligations on all
agencies of the state, other constitutional
bodies and each citizen to preserve,
protect, and promote the “environment”.
The Supreme Court elaborately con-
sidered the legal objections concerning
the jurisdiction of the NGT but held that
“the submission on behalf of the State
that the Tribunal has no jurisdiction is
not expected from the State Government
A Milestone for
Environmental Justice
TheCourthassaidthatthetreasuresofnatureareforallgenerationstocome,thus
stressingthattheintegrityoftheenvironmentisabasichumanright
By Prof Upendra Baxi
I
MEGHALAYA’S RAT HOLE TRAPS
A relief team tries to save miners trapped
inside an illegal coal mine in East Jaintia Hills
Twitter

who is under constitutional obligation to
ensure clean environment to all its citi-
zens. In cases pertaining to environmen-
tal matter the State has to act as facilita-
tor and not as obstructionist”. This is a
wise counsel—the very nature of the
Constitution nudges us all to the path of
walking the Constitution-talk.
Equally wise is the ruling that “in
statutory provisions there is no kind of
exception” that says that “when owner
himself wants to win the minerals he
does not require any mining lease”. The
submission, that “with regard to miner-
als which vest in a private person no
mining lease is required” frustrates “the
whole object of the Union by which it
declared to have taken under its control
regulation of mines and development of
minerals”. With this, the decks were
cleared to handle other large issues con-
fronting the court and other decision-
makers. Notable is the direction to the
commissioner and secretary of the state
in the Department of Mining and
Geology along with the officers of Coal
India Ltd to “deliberate with the Katakey
committee to finalise a comprehensive
plan for transportation and handing over
of the coal to Coal India Ltd for dispos-
al/auction as per rules” and “beneficial to
both the owners of the mines as well as
to the State of Meghalaya”. The Court
left it to Coal India to decide the “venue,
where they shall receive the coal” from
the state and “to finalise the process of
disposal and auction of the coal” and “all
consequent steps regarding disposal”.
PERSPECTIVES
Justice Ashok Bhushan (who wrote the
opinion of the Court, fully endorsed by
Justice KT Joseph) created a new chap-
ter in Indian environmental protection
by setting out the perspective in the very
first paragraph of the judgment. It
enshrined at least three important con-
siderations. First: “Natural resources of
the country are not meant to be con-
sumed only by the present generation of
men or women of the region where natu-
ral resources are deposited.” Second,
these “treasures of nature are for all gen-
erations to come and intelligent use of
the entire country”. Third, the “present
generation owes a duty to preserve and
conserve the natural resources of the
nation so that it may be used in the best
interest of coming generations as well
and for the country as a whole”.
The phrase “sustainable develop-
ment” appears nowhere here, and for the
entire judicial discourse of the case.
Students of international environmental
law may be mystified by the lack of any
references to Indian readings of that
concept, but still can maintain three key
components of the same concept mani-
fest the resilience of the global precept—
now further crystallised in the 2015
United Nations Sustainable Goals.
However, I read this perspectival
paragraph as going beyond sustainable
development but rather as deploying
implicitly the concept of “just sustain-
ability”. The root idea here is that not all
forms of “sustainability” may be regarded
as “just” and thinking about sustainabili-
ty (as I have always maintained) requires
feats of “unsustainable” thoughts!
The very first statement is not really
to be found in the burgeoning discussion
of sustainable development, hemmed in
as it is by the geopolitics of the doctrine
of sovereign equality of states. But within
a nation, the resource-rich state may not
claim exclusive entitlement to the
resources it has; justice consists in a
wider distribution to resource-poor
regions. One hopes that this true mean-
ing of federalism also eventually extends
to global justice theorising in the
Anthropocene era. Indeed, what is called
cosmopolitan theories of global justice
hold the view that citizenship is a moral-
ly arbitrary privilege, even feudal in
nature, if it insists on availing all the
resources of a country which he/she
inherits; the resource-poor denizens of
other countries have an equal stake in
global resource distribution.
Second, the Court here invokes “intel-
ligent” rather than “sustainable” use of
resources. There is no reason why intelli-
gent use of resources may not also be eff-
icient use. But the Court remains anx-
ious, all the way through, to emphasise
the qualifier “intelligent”. This would
necessarily mean that not all “sustain-
able” uses of resources may be held “inte-
lligent”. Thus, it is not “intelligent” to go
entirely by the claims of the right to
property or constitutional autonomy of
the Fifth and Sixth Schedule. Integrity of
environment is also a basic human right.
And finally, there is growing judicial
awareness about justice to future genera-
tions. Future generations refer to all
future people to come. The notion here
is, incidentally, strikingly different from
the one prevalent in the sphere of affir-
mative action or compensatory discrimi-
nation, where intergenerational justice
stands morally counted as a duty of jus-
tice limited only to three generations.
Perhaps, taking responsibility for past
injustices is a more severe moral prob-
lem than taking responsibility for all
future people. In any case, even when the
Court talks in terms of “people”, the jud-
gment makes it clear that one may not
do duties of environmental justice thr-
ough a wholly human species bound
thinking.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
JusticeAshokBhushan(whowrotethe
opinionoftheCourt,fullyendorsedby
JusticeKTJoseph)highlightedthe
growingjudicialawarenessabout
justicetofuturegenerations.

Courts/ Addressing Judges
22 July 29, 2019
MONG the more interest-
ing asides that captivated
those watching the trial of
Paralympian Oscar Pisto-
rius, from the court’s pub-
lic gallery or on TV, was
that the South African sprinter kept
referring to lady judge Thokozile Masipa
as “My Lady”. That’s because South
Africa, like India, is part of the Comm-
onwealth, and had adopted the British
judicial system where judges are add-
ressed as “Lord” or “Lordship”. Many
countries that were part of the former
Empire have since dispensed with the
practice, and although Indian courts
continued it, there has been a lively de-
bate over the use of these “relics of the
colonial past”. As a result, many courts
in India have done away with this archa-
ic practice.
The latest to join the list is the Raj-
asthan High Court, which has asked
lawyers to abandon the practice of
addressing judges as “My Lord” or “Your
Lordship”, saying they are comfortable
with simply being called “sir”. The deci-
sion was taken at a meeting of the full
court of the High Court on July 14, com-
prising all the judges from the two
benches in Jodhpur and Jaipur.
“To honour the mandate of equality
enshrined in the Constitution of India,
the Full Court, in its meeting dated July
14, 2019, has unanimously resolved to
request the counsel and those, who
appear before the court, to desist from
addressing Honourable judges as ‘My
Lord’ or ‘Your Lordship’,” a notification
issued by the registrar general of the
High Court stated.
The notification requested the
lawyers and litigants to address judges
simply as “sir”or “srimanji”.
Lawyer Sanjeev Bhatnagar was the
first to question the practice, when in
2006 he filed a public interest ligation
in the Supreme Court on behalf of the
Progressive and Vigilant Lawyers
Forum. Bhatnagar said that there was
no statutory provision or rule that laid
down the manner in which the high
court and apex court judges should be
addressed. But the lawyers continue to
address the judges as such because they
do not want to displease them. On their
No, My Lord!
TheRajasthanHighCourthasaskedlawyersand
litigantstodoawaywiththecolonial-erapracticeof
addressingjudgesas“MyLord”or“YourLordship”
By Asif Ullah Khan
A
ANACHRONISTIC TITLES
Addresses like “My Lord” or “Your Lordship”
for judges are being considered archaic

part, judges never stopped lawyers from
addressing them as “Lordship”. But the
Supreme Court refused to entertain the
petition and a division bench compris-
ing Chief Justice YK Sabharwal and Jus-
tice CK Thakker asked the petitioner to
take up the issue with the Bar Council of
India (BCI) and the State Bar Councils.
Subsequently, the BCI decided that
lawyers need no longer address Sup-
reme Court judges with phrases like
“My Lord” and “Your Lordship.” It said
that the Supreme Court and high court
judges can be called “Your Honour”,
while in the lower courts, presiding offi-
cers may be called “sir” or its equivalent
in local languages.
In 2014, a similar PIL was filed by
advocate Shiv Sagar Tiwari in the
Supreme Court, seeking to do away with
the practice of addressing judges as
“Your Lordship” and “My Lord”. A bench
of Justices HL Dattu and SA Bobde
observed that it was not compulsory to
address the Court as “My Lord”, “Your
Lordship” or even “Your Honour”. While
dismissing the PIL, the bench said:
“When did we say it is compulsory? You
can only call us in a dignified manner....
How can this negative prayer be accept-
ed by us? Don’t address us as ‘Lordship’.
We don’t say anything. We only say
address us respectfully.”
E
arlier, the Madras High Court
judge, Justice K Chandru, had
in 2009 banned lawyers from
addressing the court as “Your Lordship”.
He had put up a notice board outside
his court hall “requesting” the lawyers
not to address him as “My Lord” or
“Your Lordship”. The notice board read
that the advocates need not use such an
honorific in his court in accordance with
Chapter III A in Part IV of the BCI
Rules. A copy of the Gazette of India (for
the period between May 6 and 12, 2006)
notifying the introduction of Chapter III
A, made under Section 49(1)(j) of the
Advocates Act, was also displayed for
the reference of advocates. The Gazette
read that the BCI had resolved to amend
its Rules on April 9, 2006, as the words
“My Lord” and “Your Lordship” were
relics of the colonial past.
Welcoming the decision of the
Rajasthan High Court judges, Mumbai-
based lawyer Mehmood Abdi says such
grandeur and reverence were necessary
during times when judicial actions were
intertwined with the royal functions of
kings and queens. But with the advent
of democracy, the rule of law is the ulti-
mate authority to which everybody, in-
cluding the lawmakers and law-dispens-
ing judges, are equally subject to, in
similarly placed circumstances. “Add-
ressing the presiding court officer as ‘My
Lord’ or ‘Your Honour’ is incongruous in
the new environment,” says Abdi. He
added: “Expressions like ‘Mr Judge’
would be more appropriate as a mark of
respect to the position sitting in adjudi-
cation as the honorific of ‘His Excell-
ency’ or ‘Mahamahim’ has been officially
dropped from the names of President of
India and state governors. They are now
addressed as ‘Shri Rashtrapati’ and ‘Shri
Rajyapal’.” Jaipur-based lawyer Amrit
Surolia too agrees with this view. He
says: “When Thomas Jefferson was
elected as the president of America he
was asked how he would like to be
addressed and he said, ‘I would like to
be addressed as Mr President’ and after
that, all American presidents are
addressed as Mr President.”
Surolia mentioned the instance of
Justice VS Dave, a former judge of the
Rajasthan High Court, who never both-
ered about how he was addressed. “Jus-
tice Dave was more interested in the
arguments and evidence than how he
was addressed. He was of the view that
using the term ‘Your Lordship’ repeated-
ly may sometimes weaken the argument
or may irritate the judge,” said Surolia.
England and Wales: The English use
“My Lord” and “My Lady” for high
court and court of appeal judges.
Magistrates are called “Your Worship”
or “Sir/Madam” and circuit court
judges are addressed as “Your
Honour”.
Italy: The judge is addressed as
“Signor presidente della corte” or “Mr
President of the Court”.
Spain: Most judges in Spain are
addressed as “Su Señoría”, which
translates to “Your Honour”.
Germany: Male judges in Germany
are addressed as “Herr Vorsitzender”
and female judges as “Frau
Vorsitzende”, which translates as
“Mister Chairman” or “Madam
Chairwoman”.
South Korea: “Pansa” means judge in
Korean. When addressing a judge in
the courtroom, it is proper to use the
gender neutral “Pansa-nim”, which
includes the honorific.
Brazil: The male judge is called “Juiz”
and the female “Juiza”.
United States: In many states in the
United States, a judge is addressed as
“Your Honor”or “Judge”. Justices of the
Supreme Court and Justices of other
courts are addressed as “Justice”.
Howjudgesare
addressedin
othercountries
Mumbai-basedlawyerMehmoodAbdi
sayssuchgrandeurandreverencewere
necessaryduringtimeswhenjudicial
actionswereintertwinedwiththeroyal
functionsofkingsandqueens.

Courts/ Pendency Of Cases
24 July 29, 2019
HORTLY after he took
over as the Chief Justice
of Delhi High Court, Dhi-
rubhai Naranbhai Patel
attended a felicitation
function organised by the
Delhi Bar Council where he stated that
among his primary tasks would be the
disposal of cases pending for 25 years
and more on a priority basis. “We have
decided to dispose 25-year-old cases
with the help of the Bar Council mem-
bers at the earliest... It does not look
good on Delhi. We shall discuss, and if
there is any need of adjournment also,
we shall surely accommodate...,” he said
while also announcing a three-month
deadline for disposing of all cases.
A cursory glance would reveal that
Justice Patel has set himself a difficult
target. According to the data available
on the National Judicial Data Grid,
there are more than one-and-a-half lakh
cases pending in the Delhi High Court
which are more than 20 years old. A
pilot project by the Delhi High Court
called “Zero Pendency Courts” consid-
ered the backlog of cases and said that
the capital needed 43 more judges, ab-
ove the current strength of 143, to clear
all pending cases in all the six district
courts, in one year.
The project was one-of-its-kind in
India, aimed at studying the life cycle of
cases and was undertaken in certain
subordinate courts of Delhi. Its primary
goal was to study the flow of cases in the
absence of backlog. The report noted
that the number of criminal cases in
Delhi is far more than the number of
civil cases. As of March 20, 2019, there
were 5.5 lakh criminal cases and 1.8
lakh civil cases pending in the subordi-
nate courts of Delhi.
According to IndiaSpend, a non-pro-
fit organisation which analyses data on
a range of issues with the broader objec-
tive of fostering better governance, tra-
nsparency and accountability, there is
one judge for every 73,000 people in
India, compared to 10,000 in the
United States. On an average, 1,350
cases are pending with each judge, who
clears 43 cases per month. At the rate
cases are handled in district courts, civil
cases will never get cleared, and it will
take more than 30 years to clear crimi-
nal cases.
Within India, Delhi figures at the bo-
ttom of the pile. While India has 73,000
people to a judge, Delhi is almost seven
times worse with about 5,00,000 people
to a judge. As a state with fewer judges
per lakh people, Delhi has a higher bur-
den and most cases are pending for
more than a decade.
There is a correlation between the
case burden on judges and population
per judge. Uttar Pradesh, Odisha, Bihar
and West Bengal, which have a higher
A Bridge Too Far
Laudableasitis,theDelhi
HighCourtchiefjustice’s
aimtodisposeofallpending
caseswithinathree-month
timeframelooksvirtually
impossible
By India Legal Bureau
S
AccordingtoapilotprojectbytheDelhi
HighCourt,thecapitalneeded43more
judges,abovethecurrentstrengthof
143,toclearpendingcasesinitssix
districtcourts,inoneyear.
ENDLESS WAIT?
Litigants awaiting their turn for hearing at one
of the district courts in Delhi
Anil Shakya

burden and higher population per jud-
ge, also have a higher ratio of cases pen-
ding for more than 10 years. States that
build a backlog will never be able to
clear their pending cases at the current
rate of clearance. The ten states with the
fastest-growing backlog are Maharash-
tra, Gujarat, Bihar, Delhi, Goa, Hima-
chal Pradesh, Chandigarh, Meghalaya,
Sikkim and Odisha.
A
ccording to the website of the
Delhi district courts, there are
7,80,598 cases pending in the six
courts that cater to 11 districts of the
capital. Of this total, 1,89,287 are civil
cases and 5,91,311 criminal. Just above
half—51.64 percent—of these cases are
less than or about a year old and a third
of them are pending for one to three
years. A total of 38,320, five percent of
the total, are cases pending between five
and 10 years.
That’s an astounding number of ca-
ses to tackle in such a short span of
time. A look at the route that one case
has taken best illustrates what’s wrong.
CS(OS) 2851/1987 National Co-opera-
tive Consumer Federation of India vs
Ram Behari Lal was registered in the
Delhi High Court in 1987 and went un-
decided till 2016. Thereafter, the case
was transferred back from the Delhi
High Court to the Tis Hazari Court due
to subsequent amendments in law.
What’s more, such cases that run on for
decades go through many judges as they
get transferred or promoted or even re-
tire. The incoming judge takes time to
read the file and understand the gravity
of the case, adding to further delay and
resulting in pendency.
It is in this context that the decision
of the chief justice of the Delhi High
Court to dispose of long-pending cases
on a priority basis needs to be welco-
med. Both the Bar Association and
Delhi Bar Council have stated that they
will fully back Justice Patel in his bid to
wipe off the backlog even as they insist
that any solution must be both pragmat-
ic and practical. “We fully support the
chief justice and are ready to provide
whatever support the judges may seek
from the Bar. But it must be noted that
there are several retirements coming up
in the next couple of months, so the
deadlines for reducing pendency would
also depend on filling up the vacancies
that will soon arise. There is a need to
take a more practical approach to the
problem of pendency,” said Mohit
Mathur, senior advocate and president,
Delhi High Court Bar Association.
There is another section of opinion
that believes that a combination of fac-
tors has led to the pendency and both
the Bench and the Bar need to be
strengthened to tackle it. “We welcome
the initiative of the chief justice. It is
indeed a very important issue that needs
to be dealt with a lot of effort and I want
to assure him the cooperation of the Bar
to achieve that mileage. Adding to that,
I want to say that the Delhi Bar Council
is taking a lot of effort to synchronise
the whole process of litigation and make
it easy and accessible to the public at
large. We have been continuously seek-
ing to strengthen the Bar through addi-
tional funds to create good infrastruc-
ture and other inputs. I have written
letters to the L-G for more funds and
support in order to strengthen the Bar,”
said KC Mittal, Chairman, Delhi Bar
Council.
For the moment though, it appears
that Justice Patel has set a target that
seems unattainable.
“Wehavedecidedtodispose25-year-old
caseswiththehelpoftheBarCouncil
membersattheearliest....Itdoesnot
lookgoodonDelhi.Weshalldiscuss....”
—TheChiefJusticeoftheDelhiHighCourt,
DhirubhaiNaranbhaiPatel
A TALL ORDER
A pilot project by the Delhi HC has highlight-
ed the need for more judges in the capital

Courts/ Overqualified Candidates
26 July 29, 2019
N a verdict whose far-reaching
consequences are likely to shake up
the already overcrowded govern-
ment job market, the Madras High
Court has directed the Tamil Nadu
government to review within 12
weeks the rules governing the selection
and appointment to several government
jobs. The order especially relates to
posts falling under Group 3 and Group
4 categories.
Describing these categories of servic-
es as basic services, the Court directed
the government to prescribe not only
the minimum educational qualifications
but also maximum educational qualifi-
cations for job aspirants. It justified the
move by saying that fixing maximum
qualifications for getting a government
job was aimed at providing a level play-
ing field and thus enabling suitable can-
didates to get government jobs by taking
part in the open competitive process.
Justice SM Subramaniam delivered
the judgment in the second week of July
while rejecting a petition from M Sakka-
raichamy, a mechanical engineering gra-
duate, who had moved the High Court
to direct the Tamil Nadu Public Service
Commission to recruit him as an assis-
tant in the revenue department of the
state government.
In his affidavit, Sakkaraichamy said
that he had cleared both the written
examination and personal interview, yet
was denied the job because he held a
bachelor of engineering degree, consid-
ered to be overqualification for the job.
He further submitted that he was
declared not possessing the requisite
educational qualifications and as per the
notification issued for these jobs by the
state government, the required degrees
were BA, BSc, BCom, BBA, BBM or
BLit.
The judge said: “Acute unemploy-
ment issues prompted overqualified
persons to apply for such posts under
Group 4 services as well as for the basic
services. However, the competent autho-
rities may not be in a position to effec-
tively extract work from these employ-
ees with reference to the job responsibil-
ity. For instance, if a professional degree
holder or a master degree holder was
appointed as Office Assistant, Sweeper
or Driver or any other basic services, the
Smart And Unfit
TheMadrasHighCourthasruledthatrecruitingpeoplewith
higheducationalqualificationsformenialjobswouldresultin
loweringtheefficiencylevelinpublicadministration
By R Ramasubramanian in Chennai
I
DESPERATE FOR A JOB
A worker cleans a railway
track at a station in
Mumbai. Many overqualified
people apply for such
menial jobs in government
UNI

administrative officials cannot direct
them to perform certain duties and res-
ponsibilities by virtue of their profes-
sional qualifications. They may not per-
form their duties as rules required.
Those employees would be reluctant in
performing their duties and responsibil-
ities and therefore, the very purpose and
object of prescribing educational qualifi-
cations for a particular job profile was
not only defeated, but the same would
result in lowering the efficiency level in
public administration”.
Lamenting that the massive unem-
ployment situation was the main reason
for this scenario, the judge said: “On
account of large-scale unemployment
problem in our great nation, it was un-
fortunate that the engineering degree
holders, agricultural degree holders and
other professional degree holders and
the master degree holders were partici-
pating in the recruitment process even
for Group 4 services and for basic serv-
ices in government departments and
even in high court services.
However, the state was dutybound
to provide equal opportunity in
public employment to all the citi-
zens, who were all aspiring to
secure public employment through
open competitive process.
“If overqualified candidates
were appointed for performing the
duties and responsibilities attached
to Group 4 services and basic serv-
ices, undoubtedly, efficiency level in the
public administration would be brought
down. After getting appointment these
overqualified persons were not perform-
ing their duties and responsibilities
attached to the posts under Group 4
services as well as basic services.”
The judge also pointed out that the
Madras High Court itself was feeling the
heat by appointing postgraduates to the
posts of sweepers and sanitary workers.
“After joining the public service, they are
refusing/neglecting to perform certain
menial jobs which are all duties and res-
ponsibilities prescribed in the service
rules. Conflicting situations are arising.
Higher officials are unable to function
effectively and efficiently for want of
adequate support from these employ-
ees,” he lamented.
The judge said that he was of the
firm view that from a constitutional per-
spective the appointment of over-
qualified persons should be construed as
a clear violation of Article 14 (right to
equality) and Article 16 (equality in
matters of public employment).
“Equality among equals is the constitu-
tional mandate. Unequals cannot be
treated equally,” the judge noted in his
judgment.
“If the concept of treating unequals
as equals is developed, then we are
breaching the fundamental rights.
Making unequal persons sit for a com-
mon examination will cause discrimina-
tion and naturally the overqualified per-
son can easily secure more marks. While
overqualified persons get many opportu-
nities to participate in different recruit-
ment processes, those with lesser educa-
tional qualifications do not enjoy such a
privilege. Therefore, the educational
qualifications must be commensurate
with the nature of posts notified under
the recruitment notification,” he added.
I
ncidentally, a few months back,
Justice Subramaniam had passed
an order on the same subject. The
issue then was related to an order pa-
ssed by a serving commandant of the
Tamil Nadu Special Police (TSP). A
police inspector, P Muthu, had filed a
petition in the Madras High Court
against the orders of the commandant,
who declared Muthu a deserter after the
latter was absent for over 21 days with-
out informing his senior officers.
The judge, while dismissing Muthu’s
petition, said that appointment of over-
qualified candidates at the entry level
cadres like Grade II constables and jail
wardens, firemen and head constables
was contributing to the growing indisci-
pline and insubordination in the police
force. He had then directed the state
home secretary and the DGP to pre-
scribe the maximum educational qualifi-
cation for the jobs within eight weeks.
In his order, Justice Subramaniam
had said: “The growing indiscipline
within the police force was visible to
the public. Negligence, lapses and
IN HIGH DEMAND
A protest by government employees in
Chennai. There is a scramble for such jobs
Inhisverdict,Justice
SMSubramaniam
said:“Equality
amongequalsisthe
Constitutional
mandate.Unequals
can’tbe
treatedequally.”
UNI

Courts/ Overqualified Candidates
28 July 29, 2019
dereliction of duty were common. Police
personnel on duty were indiscriminately
using smartphones to play games, chat
and watch movies. Adequate checks and
measures were not undertaken to con-
trol the misconduct by the department.
The causes for indiscipline have to be
analysed in the interest of public safety
and for an orderly society.
“If postgraduates or those with pro-
fessional degrees were appointed in
entry level cadres, then it would become
very difficult for senior officials to con-
trol them. Educational qualifications
and eligibility criteria for a post or cadre
were normally commensurate with the
job profile. Prescription of such criteria
and qualifications had a certain purpose
and object. In the event of appointing
overqualified candidates these get
defeated.”
I
nterestingly, the reactions to this
High Court judgment are mixed
and not everyone is ready to buy the
theory that the recruitment of highly
qualified persons would hamper basic
public services.
“In my view this is a wrong judg-
ment. When a person with the so-called
high educational degrees, whether from
professional courses like engineering or
law or from arts and commerce groups,
applies for menial jobs, it shows the
massive unemployment scenario in this
country. There are hundreds and thou-
sands of government jobs suitable for
these sort of qualified persons lying
vacant for years,” says Ramakanth Ojha,
a retired Indian Forest Service (IFS)
officer and former principal chief con-
servator of forests.
He further added: “The courts which
are worrying about the large-scale un-
employment problem should first direct
the concerned government authorities
to first fill up those vacancies and then
they can think about issuing directions
to the government about fixing the
maximum educational qualification ceil-
ing for those who are applying for
menial jobs.”
Echoing the same viewpoint but with
a slight variation, Adhi Veera Pandian, a
practising advocate in the Madras High
Court, said: “There is nothing called a
menial job or a higher job. By fixing
maximum qualifications for a job, you
are actually demeaning those human
beings who are doing/performing that
work whether he or she is a school
dropout or a postgraduate.
“One has to look at the issue from
only one viewpoint—whether that per-
son in the so-called menial job is per-
forming her/his duty as per the require-
ments of rules and regulations of the
concerned government manual. If
he/she fails on that front, the concerned
authorities can take action under the
relevant provisions of government man-
uals/provisions and service rules. For
any job in this world, you can only pre-
scribe a minimum qualification but cer-
tainly not maximum qualification.”
However, there is solid support for
this judgment from the top echelons of
the police force in Tamil Nadu. “We wel-
come this judgment wholeheartedly. We
are facing this problem day in and day
out for the past decade in the police
department. A sub-inspector of police
who has 33 years of service with 10th
standard as his qualification often has a
protracted tussle—sometimes even
physical altercations—with his constable
because that particular constable is rak-
ing up one issue or another with him.
The main reason behind this is the ego
war between the two. The constable is a
postgraduate and he refuses to obey the
orders of the sub-inspector who is more
qualified. Both sides have been called in
several times for counselling but all in
vain,” said a serving additional director
general of police, Tamil Nadu.
The situation is perhaps all the more
complex due to the high number of
women in the Tamil Nadu police. “Tamil
Nadu is the number one state in India
in terms of the strength of women in
police, especially at the constabulary
level. There are hundreds of police sta-
tions where women officers contribute
at least 50 percent of the total strength.
So a postgraduate police constable’s ego
refuses to obey the orders of his superi-
ors who are just 10th or 12th standard
pass,” he added.
The Tamil Nadu government is still
playing safe and has so far chosen to
remain silent after the verdict.
TamilNaduPoliceisoneofthesectors
thatfacesdisciplinaryissuesdueto
overqualificationofitspersonnelatthe
constabularylevel.Aconsiderablenum-
berofwomenintheforcemakesitworse.
UNI

Bringing You
The Stories That Count
An ENC Publication
To Stay Abreast With Today,
Pick Up Yesterday’s India Legal
ONLY THE
STORIES THAT COUNT
Every week India Legal will bring you
news, analyses and opinion from
the sharpest investigative reporters
and most incisive legal minds in the
nation on matters that matter to you
Don’t miss a single issue of
this independent, scintillating
new weekly magazine and
get special discounts for
yourself and your friends
NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
July22, 2019
Whileattentionhasrightlybeenfocusedonsexualatrocitiesagainstwomen,aPILinthe
SupremeCourtsaysequalweightageshouldbegiventosimilarassaultsonmen,highlightingan
issuethathasbeenagitatingtheCentre,academics,courtsandactivistsforquitesometime
Stay in Trials
By Prof Upendra Baxi
The Tik Tok
Trauma
MaleRape
MakingtheSystemNeutral

Interview/ Justice BA Khan
30 July 29, 2019
JUSTICE BASHIR AHMED KHAN,
fondly called “Badshah Khan” in
legal circles and reckoned as a
credible voice on affairs in the judi-
ciary, has held several key posi-
tions in his decades-long career in
law and public life. He has served
in various High Courts and was
Chief Justice of the J&K High
Court, Acting Chief Justice of the
Delhi High Court and Adminis-
trative Judge of the Madhya
Pradesh High Court’s Indore
bench. He has also been the head or
a prominent activist member of
various law bodies and forums
including being president of
SAARC Law India, being in the
Executive Committee of the
National Judicial Academy and the
governing body of the Indian Law
Institute, etc. He is currently chief
of the J&K State Accountability
Commission, an anti-graft body
akin to the Lokpal. Justice Khan
spoke to India Legal’s editor
INDERJIT BADHWAR in an exclu-
sive interview. Excerpts:
“Anti-corruption
mechanisms are made with
the intent to eventually
render them defunct”

the latest methods and skills in dispute
resolution. Then there is the commer-
cialisation of the legal profession, gov-
ernment apathy and rivalry towards the
judiciary, lack of access to the system by
the common man, the judiciary being
denied its due place as the third limb of
the State in the country’s policy and
planning and so on. Some of its wings
such as the criminal justice system are
nearly collapsing.
Why did you use the term “collapse” to
describe the situation in the system?
The signs are there for all to see. From
shoddy investigation to dysfunctional
prosecution and lethargic adjudication,
it all seems in disarray and in a mess.
Investigating and prosecution agencies
are not independent and that is why you
see them changing colours with the
change of political dispensation. There is
no worthwhile supervisory mechanism
to check lethargic judging and all factors
taken together lead to a very pathetic sit-
uation with people languishing in jails
and serving longer terms of sentence
than prescribed under laws and conse-
quently losing faith in the system.
There are other disturbing trends also
which reflect the functioning and image
of the judiciary. Even the higher echelons
of the institution are charged with mal-
functioning, mismanagement, pliability
or other wrongdoing. Recently, four
senior judges of the Supreme Court,
including the present CJI, went public
complaining of wrongdoing in the high-
est court posing a threat to the inde-
pendence of the judiciary from within.
What more is needed to indicate a
near collapse?
What needs to be done to clear the
mess is a matter of common knowledge.
So many commissions and committees
have gone into these issues and recom-
mended ways and means to tackle these.
But where is the implementation? Why
there is no implementation is a separate
matter. Is it not frustrating that we have
not been able to formulate a judicial
policy aimed at taking justice to the
common man who has hardly any access
to it?
Since you talked about judi-
cial policy, what are some
important issues that should
be addressed on a priority
basis?
All the issues I have menti-
oned earlier, be it of recruit-
ment, infrastructure, speedy
and inexpensive justice,
reduction of the huge bulk of
government litigation, intro-
duction of latest technology,
etc. My view is that the judiciary has
always received stepmotherly treatment
from successive governments.
One of India’s most admired figures,
former Chief Justice TS Thakur, wept
publicly in 2016 over the issue of inc-
reasing judicial vacancies. What did you
make of that?
It is no secret that our judicial system is
plagued by so many ailments. There are
issues of faulty recruitments, inadequate
infrastructure, judicial delays and
expense. This includes redundant judi-
cial training with the neglected National
Judicial Academy, a white elephant with
no faculty, syllabus or programmes,
holding periodical sessions in the name
of training judges but serving like any
other ill-equipped law college than a
place of learning to equip judges with
“Itisnosecretthatour
judicialsystemisplagued
byseveralailments.There
areissuesoffaultyrecruit-
ments,inadequateinfra-
structure,judicialdelays
andexpenseandsoon....”

32 July 29, 2019
The problem is that there is no
investment made by the government in
the judicial system which is an impor-
tant limb of the State under the Consti-
tution. Look at the investment made in
this budget—1-2 percent of the national
budget. One has only to experience the
miserable conditions and the atmos-
phere prevailing in our courts.
What is the way forward?
Again, in my view, all ways are available
and open. All that is needed is the will,
determination and sincerity of purpose
by the government of the day. It first has
to realise the importance of the judiciary
under our constitutional scheme and
then accord equal treatment to it and
give it its proper deserving place. This
reminds me of Narendra Modi who, in
2006, addressed the chief justice’s con-
ference in his capacity as Gujarat’s chief
minister. He made a very impressive
speech highlighting the problems facing
the judicial system and disabling it to
deliver justice to the common man.
Participants at the conference, including
me, were so impressed by his blunt hon-
esty in highlighting the issues. Today, he
is the prime minister and his govern-
ment enjoys an overwhelming majority
in Parliament. Could he not be reminded
of his vision of taking the justice system
to the doorstep of the common man and
implement it?
Is there a lack of will? Why can’t we have
a system of circuit courts like in the US
where only constitutional matters are
decided by the Supreme Court?
I have already explained what is lacking,
which includes a lack of will by all the
stakeholders. As regards the US model of
circuit benches, we are governed by our
constitutional scheme which provides for
various jurisdictions of the Supreme
Court and other courts. It is true that the
top court is overburdened by jurisdic-
tions which could have been spared. For
example, its Special Leave Petition juris-
diction is regularly involved and avail-
able against the order of any authority.
In my view, it makes no sense to engage
washed in milk and honey are running
it. There are black sheep present but to
paint the whole institution with a tarred
brush is unjustified and unacceptable. I
have known judges living by their con-
viction from hand to mouth, believing
for good or bad that they are discharging
some divine duty, without realistically
realising that they are only utilising their
craft in dispute resolution.
There is a need for enforcing judicial
accountability and standards in the sys-
tem, for which efforts have been made
since 1968 when the Judges Inquiry Act
was enacted. Thereafter, legislations in
this regard were brought before Parlia-
ment but were allowed to lapse. Why
and how this has happened is an issue to
be debated separately.
Recently, a sexual harassment allegation
was levelled against the CJI. And a suo
motu hearing was conducted by a special
bench of the Supreme Court constituted
by the CJI, calling it a grave national
security matter. Do you think this was
the right way to deal with it?
Of late, one witnesses a pattern of target-
ing successive chief justices of India.
This has brought the institution into dis-
repute. Smear campaigns are run and
wild allegations are cast without the
complainants coming forward to sub-
stantiate such allegations. A judge is a
very vulnerable person; he has no way to
give his version of events. Any disgrun-
tled litigant or vested interest can throw
the highest court in this jurisdiction at
the cost of matters which concern the
lives of the people. I am all for its scrap-
ping but that can be done only by an
amendment to the Constitution by the
Parliament. The apex court which should
have been deciding constitutional issues
and legal matters of public importance is
engaged in spending public time on such
matters (like PILs, etc) which should
have been left to be considered by other
forums. As far as the jurisdiction of the
Supreme Court remaining limited to
constitutional matters is concerned,
there have been suggestions/recommen-
dations in this regard from time to time,
but without any consideration and
implementation.
Is there such a thing as judicial corrup-
tion? What are anti-corruption mecha-
nisms like the Lokpal, the Accountability
Commission and the Vigilance Comm-
ission doing to tackle corruption in the
government, including the judiciary?
The issue of corruption in the judiciary
must be dealt with cautiously to avoid
any threat to the independence of the
institution. It is nobody’s case that all is
well in the judiciary and that only saints
“Myviewisthatthejudiciary
hasalwaysreceivedstep-
motherlytreatmentfrom
successivegovernments.”
Interview/ Justice BA Khan

dirt and mud at him. But that is not to
suggest that there is no wrongdoing hap-
pening in the corridors of the judiciary.
All that I am emphasising is that if there
is any wrongdoing taking place, come
forward and prove it. Bald and wild alle-
gations only tarnish the image of the
judiciary which is the custodian of peo-
ple’s rights. Therefore, there is actually a
need to check this trend while enacting
any law related to judicial accountability
because the independence of the judici-
ary needs to be protected to sustain peo-
ple’s faith and confidence in the institu-
tion. That is why I plead that if a judge
commits a wrongdoing, punish him
through a credible and impartial in-
house mechanism to sustain people’s
faith in the institution.
As regards the allegations against the
present CJI, why reopen a closed chap-
ter? An inquiry committee of three apex
court judges found no merit in the alle-
gations. That should be the end of it.
Why should holes be picked in the rep-
ort of this committee when the same
judges are trusted for deciding high-
stake matters involving public and nat-
ional interest? Enforcement of judicial
accountability is the need of the hour.
This debate has been uselessly going on
for years. Why is legislation on the sub-
ject being killed by successive govern-
ments? A majority in the judiciary is
always ready to welcome it with a caveat
that it should cause no harm to the inde-
pendence of the judiciary.
Do you think judicial activism has a
place in India? Should the judiciary step
in, even at the risk of being called acti-
vist, when other branches of the govern-
ment fail to discharge their functions or
trample on the basic structure of the
Constitution?
I support judicial activism as long as it is
within the confines of law and the
Constitution and there is no misuse. If a
court intervenes in such matters on find-
ing failure or default of the executive or
legislature, what is wrong in it? It is
because someone is knocking on the
doors of justice. When a common man
approaches the court, he expects justice
to be done. He can’t be turned away on
the plank of separation of powers. As
long as judicial intervention is to meet
the ends of justice and it is within the
framework of the Constitution and law,
it must be accepted. Now scrutiny mech-
anisms are in place in High Courts to
prevent any misuse of PIL jurisdiction.
Where do you see the role of the Lokpal
against this backdrop and what do you
have to say about the delay by the gov-
ernment in setting it up?
The Lokpal has now been established,
after all. But it is best to not have high
expectations from it. The reality is that
corruption has become a norm in our
society and anti-corruption mechanisms,
wherever set up, are weakened eventual-
ly and rendered defunct. That is why you
find that no such mechanism, be it the
Lokayukta, CBI or RTI, has made any
impact on corruption.
This defect was discussed by Jawaharlal
Nehru, Sardar Patel, BR Ambedkar,
Rajendra Prasad and Maulana Azad dur-
ing Constituent Assembly debates.
Nehru wrote many times about the
importance of independent legislators to
keep a proper check and balance on the
executive. Is there a need for a massive
overhaul of the Constitution to establish
true separation of powers?
In my view, anti-corruption mechanisms
are created only for a political purpose.
There is no intent to make these effective
or potent to facilitate good governance.
Experience shows that after these insti-
tutions are established, they are made
powerless in the course of time till ren-
dered defunct. Let me give you the
example of my own Accountability
Commission set up in 2002 with high
hopes and vast jurisdiction. No sooner
had it started making an impact, most of
its jurisdiction was taken away step by
step to render it useless. So much so that
the government is challenging its powers
and actions day in and day out in courts.
The government has taken the issue of
its suo motu jurisdiction even up to the
Supreme Court. A number of states have
Lokayuktas now. One only hopes that
they are empowered and allowed to
function freely and fairly to achieve the
purpose for which they were set up. The
same is the case with the Lokpal, which
was sought to be set up with high hopes.
I know that there will be efforts to weak-
en it, to turn it into a failed institution,
but I also hope and pray that it survives
the onslaughts for the sake of national
interest.
There is nothing short of a crisis in our
judiciary and at every level of our socio-
political organisations. Based on your
own experience as a judge and a thought
leader, where should one begin?
The judiciary is the custodian of the
Constitution and the rights of the people.
It is true that it is going through a bad
patch, but I am confident that it will
come out, stand up and rise to the occa-
sion to protect and safeguard the rights
of the people, unmindful of any adverse
consequences. Governments will come
and go but the institution of the judici-
ary will grow as a bulwark in defence of
the rights of the people.
“CouldthePMnotberemindedof
hisvisionoftakingthejustice
systemtothedoorstepofthe
commonmanandimplementit?”

Economy/ Credit Rating Agencies
34 July 29, 2019
INANCIAL regulators are
always guilty of closing the
barn door after the horse has
bolted. The IL&FS crisis is an
excellent example of this.
Despite all the warnings, no
gatekeeper (SEBI, RBI, banks, account-
ants, credit rating agencies, directors)
raised any red flags until it had turned
into a full-blown crisis. The contagion
effect of IL&FS is now being felt
throughout the economy with an almost
complete shutdown of credit for non-
banking financial companies affecting
projects worth tens of thousands of
crores in real estate development, con-
struction and infrastructure.
The fingers have started to point and
the role of credit rating agencies (CRAs)
has come under scrutiny. The serious
fraud investigation unit (SFIO) is inves-
tigating four CRAs for inflating the
credit rating of IL&FS and its financial
arm IFIN, and for failing to adjust their
ratings on IL&FS debt despite obvious
red flags, including internal warnings
from analysts at the rating agencies.
CRAs are not new to controversy.
There is a broad consensus that CRAs
contributed to the 2008 financial crisis.
They underestimated the risk associated
with mortgage securities and other deri-
vative credit products and failed to adju-
st their ratings quickly enough to deteri-
orating market conditions. Prior to the
outbreak of the financial crisis, CRAs
were mostly unregulated, but as the cri-
sis progressed, and the finger-pointing
started, calls for regulating CRAs grew
louder. They were accused of method-
ological errors in their rating process
and unresolved conflicts of interests.
What are CRAs, what role do they pl-
ay and why are they so crucial for debt
markets? CRAs provide opinions about
the creditworthiness of bonds (and oth-
er debt instruments) that are issued by
corporations, municipalities, sovereign
governments and the like. Such infor-
mation is the foundation for the opera-
tion of any credit market. There are
high fixed costs of gathering and analy-
sing this information and many lenders
may be too small or lack the expertise to
collect and analyse the data themselves.
This leads many investors to outsource
this service to credit rating agencies who
have professionals who can gather the
appropriate information and analyse it
using proprietary risk models.
The CRAs summarise their research
into an alphabetical rating of debt.
While each CRA has its own rating sys-
tem, the general convention is to pro-
vide ratings on a letter scale, with AAA
being the safest credit and C represent-
ing the highest risk borrowers (instru-
ments rated D are in default). These rat-
ings have huge significance for the inter-
est rate paid by companies on their debt
instruments. The lower the credit rating,
the greater the risk and higher the yield
investors demand. Thus, B-rated bonds
currently have to offer a yield of about
350 basis points higher than their A-
rated counterparts. As the ratings could
mean significantly higher borrowing
costs and lower profits, firms and CRAs
have been accused of colluding and
gaming the system. The IL&FS case is a
classic example of this gaming—both
IL&FS and IFIN debt had AAA ratings
which were downgraded to junk, not
gradually as would be the case for a
company whose financial position was
slowly deteriorating, but overnight, and
only after the financial deficiencies of
the firm had been exposed.
The modern credit rating industry
originated during the late 19th century
Wanted:
A Judicious
Gatekeeper
Thegovernmentwantstoincreaseregulationson
theAgencies.Thiswon’tpreventanotherIL&FS.
Itwillonlyincreasecompliancecostsandprevent
theentryofnewinnovativecompanies
By Sanjiv Bhatia
F

in the US as a service to evaluate the ris-
kiness of railroad bonds that were used
to finance American railroads. In 1890,
Poor’s Publishing Company, the prede-
cessor of today’s Standard & Poor’s
(S&P) Financial Services, started pub-
lishing the Poor’s Manual with reports
and elaborate details about financial
data for individual railroad companies.
Later, John Moody, an entrepreneur,
started collecting these details and syn-
thesising this mass of information into
an easily digestible format which even-
tually became the Moody’s rating sys-
tem. By 1924, several rating companies
started publishing ratings on bonds.
These early agencies made money by ch-
arging investors subscription fees, unli-
ke today where the rating fee is paid by
the company whose bond is being rated.
The credit rating industry went into
a general decline after the 1929 crash.
Investors, stung by the poor record of
these agencies in anticipating the sharp
drop in bond values, lost interest in pur-
chasing ratings. They recognised that
the ratings were not valuable and were
based mainly on publicly available infor-
mation. According to a study of 207 cor-
porate bond rating changes from 1950
to 1972, credit rating changes generated
information of little or no value. The
changes merely reflected information
already incorporated into stock prices—
and indeed lagged that information by
as much as 18 months. As a result of this
investor apathy, the rating business
remained stagnant for decades.
A
ll of this changed in the 1980s
with growing privatisation and
the increased globalisation of
finance. With investors seeking returns
worldwide, there was an increase in the
demand for information about the cred-
itworthiness of issuers, instruments and
countries in foreign markets. CRAs
jumped in as gatekeepers to reduce the
information asymmetry between lenders
and borrowers. And their business blos-
somed. An investor in the US, for exam-
ple, would be unable to do independent
research on a bond issuer in India—so
she/he is forced to rely on the credit rat-
ing provided by the CRA. As of 2018,
Standard & Poor’s, the largest CRA in
the world, had credit rating opinions
outstanding on approximately $40 tril-
lion of debt, including 7,45,000 securi-
ties issued by roughly 42,000 obligors in
more than 100 countries.
Credit rating is a highly concentrated
industry and three big CRAs—Moody’s
Investors Service, Standard & Poor’s
(S&P) and Fitch Ratings—control 95
percent of the global market. The three
largest rating agencies in India—CRISIL
(owned by S&P subsidiary), Care Rati-
ngs and ICRA (owned by Moody’s)—
account for 85 percent of the rating
business in India. The rest is shared by
India Ratings and Research (a sub-
sidiary of Fitch), Brickwork Ratings
India Pvt Ltd (promoted by Canara
Bank), Smera Ratings Ltd (owned by
Dun and Bradstreet Information
Services India Pvt Ltd and some banks)
and Infomerics Valuation and Rating.
Credit ratings continue to present an
unusual paradox: rating changes are im-
portant, yet they possess little informa-
tional value. Most CRAs are behind the
curve and provide rating downgrades
only after the company has defaulted.
Yet, governments insist that public pen-
sion plans and public sector banks
invest only in high-rated instruments.
Credit ratings also don’t help in miti-
gating risk because ratings are relative—
a AAA-rated bond in India is not the
THE GREAT CREDIT MESS
India’s leading infrastructure finance company IL&FS defaulted on payments, triggering panic
in the markets; (above) Standard & Poor’s, one of the largest CRAs in the world

Supreme Court intervention in Karnataka crisis raises separation of powers issues

Supreme Court intervention in Karnataka crisis raises separation of powers issues

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (20)

Similaire à Supreme Court intervention in Karnataka crisis raises separation of powers issues

Similaire à Supreme Court intervention in Karnataka crisis raises separation of powers issues (20)

Plus de ENC

Plus de ENC (20)

Dernier

Dernier (20)

Supreme Court intervention in Karnataka crisis raises separation of powers issues