Some recent landmark decisions

For the benefit of our readers and also to catch-up the recent developments, we are running in this post short notes on some of the landmark decisions in recent past. These decisions are landmark on various counts; either they reveal a jurisprudence shift or they deal with a legal controversy which was vividly followed up by national media and the citizens alike. Some are landmark on account of the sheer fact of these decisions being rendered by larger bench of the Supreme Court and thus an important and likely stable constitutional declaration flows from these decisions.

Constitution Bench decisions

1. This series of two decisions is actually a revisit of the constitutional stipulations relating to appointment of judges amongst the High Courts and the Supreme Court. The law was firmly settled by earlier larger bench decisions. However the incumbent Government initiated the process which led to amendment of the Constitution. This amendment was meant to bring in place a new positive legal order regarding the appointment process. In the first decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.10.2015], a five-judges bench of the Supreme Court declared the amendment to the illegal being contrary to the basic constitutional principles. In essence, therefore, they revived the appointment process in place prior to this arrangement known as the 'Collegium'. However in this decision itself the judges agreed that there was room for improvement in the Collegium system and this led to the second decision. In this decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.12.2015] the same five-judges of the Supreme Court broadly examined the suggestions received from various quarters towards improving the Collegium system, only to conclude that it was beyond the judicial realm to lay down the policy. On such account it directed the Government of India to frame 'Memorandum of Procedures' which would serve as the Working Document and lay down the protocol for the appointment of the judges. These decisions are landmark in various senses. Firstly they are by constitutional benches and thus carry significant weight. Secondly, there is a significant discussion on the 'basic structure principle' and also the importance of 'judicial review' and 'independence of judiciary', which are key constitutional tenets. Thirdly and more importantly, it is rare for the Supreme Court to declare as illegal a constitutional amendment and thus these decisions carry significant insight on the subject. 

 

 

2. The decision of another five-judges bench of the Supreme Court in Nabam Rebia v. Deputy Speaker [Civil Appeal No. 6203-6204/2016 decision dated 13.07.2016] is another significant decision for it delineates the scope and ambit of the powers vested in a Governor of a State under the Constitution. In this decision the Court was examining the allegations that the Governor did not adopt a bipartisan role which was expected of him and instead went beyond the scope of authority conferred upon him. In fact in this decision the Supreme Court reinstated the exective Government which had not found favour amongst the stipulations of the Government, which makes it perhaps an unprecedented decision on large counts. The case also involved the relationship between the Government and Speaker of a Legislative Assembly and how far could the Governor direct the Speaker to carry out specified functions. 

 

 3. Another decision, also of five-judges of the Supreme Court is in the case of Union of India v. V. Sriharan Writ Petition (Criminal) No. 185/2014 decision dated 02.12.2015] which dilutes a number of decisions on the subject as also the common understanding to declare that a life sentence means imprisonment till the end of life. There was a common understanding that life sentence means 14 years. However the Court has declared otherwise and held that the power of the Government to remit sentence after 14 years is not a matter of right but only a possibility for early release. This decision also declares that the Court has power to give a fixed sentence (say 20 years) to a person without any possibility of early release.

Some other decisions, but not of constitution benches of Supreme Court

4.  This decision in Kedar Nath Yadav v. State of West Bengal [Civil Appeal No. 8438/2016] runs into over 200 pages and relates to validity of land acquisition in West Bengal relating to Tata Nano plant. Dealing with a very emotive issue for the local residents and also a politically sensitive matter for the incumbent government, the Supreme Court has dealt extensively with land acquisition laws and the interse considerations required to be considered for upholding acquisition of land. In conclusion the Supreme Court has directed that "land shall be given back to the land owners and compensation if any paid to them shall not be recovered from them those who have not collected it are free to collect the same in lieu of damages for deprivation of possession for ten years".


5.  Additionally, another Supreme Court decision is the case of Shreya Singhal v. Union fo India [Writ Petition (Criminal) No. 167 of 2012, decision dated 24.03.2015] where certain provisions of the Information Technology Act, 2000 has been declared as unconstitutional and illegal for they are impediment to freedom of speech and expression guaranteed by the Constitution to its citizens. This decision renders interesting insights, also on a comparative legal analysis perspective, the various dimensions of free-speech jurisprudence and its ambit under the Constitution of India. A must read for students.


6. In a very recent decision in Chandrakeshwar Prasad v. State of Bihar [Criminal Appeal No. 932 of 2016, decision dated 30.09.2016] the Supreme Court has cancelled the bail granted by the High Court to Md. Shahabuddin. This decision presents interesting insights over the competing considerations between personal liberty of an individual and the larger societal interests. Referring to its earlier decisions on the subject, the Supreme Court held that it was important to balance the "fundamental right to individual liberty with the interest of the society".


7. While this is not a decision, this nonetheless has severe ramifications for the future of Supreme Court. In V. Vasanthakumar v. H.C. Bhatia [Writ Petition (Civil) No. 36 of 2016 order dated 13.07.2016] three judges of the Supreme Court have referred to a larger bench adjudication of certain constitutional questions, which are as under;

1. With access to justice being a fundamental right, would the said right stand denied to litigants, due to the unduly long delay in the disposal of cases in the Supreme Court?
2. Would the mere increase in the number of judges be an answer to the problem of undue delay in disposal of cases and to what extent would such increase be feasible?
3. Would the division of the Supreme Court into a Constitutional wing and an appellate wing be an answer to the problem?
4. Would the fact that the Supreme Court of India is situate in the far North, in Delhi, rendering travel from the Southern states and some other states in India, unduly long and expensive, be a deterrent to real access to justice?
5. Would the Supreme Court sitting in benches in different parts of India be an answer to the last mentioned problem?
6. Has the Supreme Court of India been exercising jurisdiction as an ordinary court of appeal on facts and law, in regard to routine cases of every description?
7. Is the huge pendency of cases in the Supreme Court, caused by the Court not restricting its consideration, as in the case of the Apex Courts of other countries, to Constitutional issues, questions of national importance, differences of opinion between different High Courts, death sentence cases and matters entrusted to the Supreme Court by express provisions of the Constitution?
8. Is there a need for having Courts of Appeal, with exclusive jurisdiction to hear and finally decide the vast proportion of the routine cases, as well as Article 32 petitions now being decided by the Supreme Court of India, especially when a considerable proportion of the four million cases pending before the High Court may require review by a higher intermediate court, as these judgments of the High Courts may fail to satisfy the standards of justice and competence expected from a superior court?
9. If four regional Courts of Appeal are established, in the Northern, Southern, Eastern and Western regions of the Country, each manned by, say, fifteen judges, elevated or appointed to each Court by the Collegium, would this not satisfy the requirement of ‘access to justice’ to all litigants from every part of the country?
10. As any such proposal would need an amendment to the Constitution, would the theory of ‘basic structure’ of the Constitution be violated, if in fact, such division of exclusive jurisdiction between the Supreme Court and the Courts of Appeal, enhances the efficacy of the justice delivery system without affecting the independence of the judicial wing of the State?
11. In view of cases pending in the Supreme Court of India on average for about 5 years, in the High Courts again for about 8 years, and anywhere between 5- 10 years in the Trial Courts on the average, would it not be part of the responsibility and duty of the Supreme Court of India to examine through a Constitution Bench, the issue of divesting the Supreme Court of about 80% of the pendency of cases of a routine nature, to recommend to Government, its opinion on the proposal for establishing four Courts of Appeal, so that the Supreme Court with about 2500 cases a year instead of about 60000, may regain its true status as a Constitutional Court?

8. And then in this series, we refer to the decision of the Delhi High Court in Government of National Capital Territory of Delhi v. Union of India [Writ Petition (Civil) No. 5888/2015 decision dated 04.08.2016] where the High Court has opined upon the interse powers of the Government of India and the Government of NCT of Delhi. Running into about 200 pages, this decision relied upon a nine-judge Supreme Court decision in New Delhi Municipal Corporation v. State of Punjab (1997) 7 SCC 339 to hold that Delhi continues to be Union Territory, albeit with special status, but does not enjoy statehood. This decision opines upon a long pending political struggle in Delhi and may not be the last word on the subject as the Supreme Court is currently seized of the dispute. Nonetheless various interesting aspects relating to the special position of Delhi and its legal attributes.

Harsher Punishment for Road Accidents: Supreme Court ponders

Taking note of its earlier observation that in India the drivers on the road feel as of they are “Emperors of all they survey”, the Supreme Court in its recent order has asked the Attorney General of India to explain the stand of the Government on harsher punishments for road accidents.

Currently Section 304A of the Indian Penal Code punishes an act of Causing death by negligence by an imprisonment of two years and a fine or both. In view of the Supreme Court, this punishment is "absolutely inadequate". While noting that it is the will of the Parliament to prescribe a punishment for an offence, in view of the Supreme Court it is important to understand the view of the Government of India on the subject. 

Accordingly in its order dated 26.08.2016 in Abdul Sharif v. State of Haryana [Crl. M.P. No. 13513/2016] has passed the following order;

Though we do not find any merit in this special leave petition and it should have seen the end today, yet we have kept it alive as we have something to say.

In State of Punjab vs. Saurabh Bakshi (2015) 5 SCC 182, this Court has observed thus:

“Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304-A IPC. We say so with immense anguish.”

We have said that Section 304-A IPC should be revisited so that higher punishment can be provided. The aforesaid passage clearly indicates that punishment provided under Section 304-A is absolutely inadequate. We are absolutely conscious, as the aforesaid would convey, it is up to the Parliament. However, we would like to hear the learned Attorney General for India on this score. Mr. Maninder Singh, learned Additional Solicitor General, who is present in the Court, submits the he will apprise the learned Attorney General to assist the Court. 

Let the matter be listed on 30th August, 2016.

One hopes that the Government shares the concern and will initiate the necessary action to change the mindset as the Supreme Court has noted.

Chief Minister not to interfere with Police functioning: Supreme Court

Taking serious exception to the role of the Chief Minister in directing police not to take action in a matter involving a particular person, the Supreme Court in a recent decision expressed its displeasure in no uncertain terms against such practices. Declaring in State of Maharashtra v. Sarangdharsingh Shivdassingh Chavan that the directions by the Chief Minister of Maharashtra (who has been mentioned and criticized by name more than once in the decision) were contrary to the republican values of our constitution and an unwarranted intervention in the role of the police, the Supreme Court imposed an exemplary cost of ten lakhs.

The Court inter alia observed as under;

2. The facts of each case, which come up to this Court and especially those which are heard at length as appeals, have a message to convey. The message conveyed in this case is extremely shocking and it shocks the conscience of this Court about the manner in which the Constitutional functionaries behaved in the State of Maharashtra.

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18. Since, the learned counsel for the first respondent was arguing on the propriety of directions given by the then Chief Minister of Maharashtra and also on the propriety of Chief Minister’s Personal Secretary making telephone calls to the police station and giving instructions as to how complaints should be registered against the family of the second respondent, this Court thought that the then Chief Minister of Maharashtra, who was initially not a party to this proceeding, should be impleaded and be given a chance to make his representation before the Court. Therefore, this Court by an order dated 31st March 2010, gave notice to the then Chief Minister of State of Maharashtra, presently Union Minister, Department of Heavy Industries, Government of India and directed service of the entire paper book of Special Leave Petition on him in order to enable him to file an affidavit in the context of the letter dated 5th June 2006 sent by the Collector to the District Superintendent of the Police, Buldhana. 

19. Pursuant to the said notice an affidavit was filed by Shri Vilasrao Deshmukh, the then Chief Minister of Maharashtra. In paragraph 5 of the said affidavit the content of the letter of the Collector dated 5.6.06 was not denied. Nor was it denied that on 31.5.06, his Private Secretary made two telephone calls to the concerned Police Station enquiring about cases registered against Sananda. However, in the said affidavit Mr. Deshmukh stated that he never interfered with any pending investigation against the family of Sananda and he further stated that investigation was conducted and the chargesheet was filed.

20. Considering the entire matter in its proper perspective, this Court is of the view that the way interference was caused first from the office of the Chief Minister by his Private Secretary by two telephone calls on 31.5.2006 and the manner in which District Collector was summoned by the Chief Minister on the very next day i.e. 1.6.2006 for giving instructions to specially treat any complaints filed against M.L.A. Mr. Dilip Kumar Sananda and his family has no precedent either in law or in public administration.

21. The legal position is well settled that on information being lodged with the police and if the said information discloses the commission of a cognizable offence, the police shall record the same in accordance with the provisions contained under Section 154 of the Criminal Procedure Code. Police Officer’s power to investigate in case of a cognizable offence without order of the Magistrate is statutorily recognised under Section 156 of Code. Thus the police officer in charge of a police station, on the basis of information received or otherwise, can start investigation if he has reasons to suspect the commission of any cognizable offence.

22. This is subject to the provisos (a) and (b) to Section 157 of the Code which leaves discretion with the police officer-in-charge of police station to consider if the information is not of a serious nature, he may depute a subordinate officer to investigate and if it appears to the officer-in-charge that there does not exist sufficient ground, he shall not investigate. 

23. This legal framework is a very vital component of the Rule of Law in order to ensure prompt investigation in cognizable cases and to maintain law and order.

24. Law does not accord any special treatment to any person in respect of any complaint having been filed against him when it discloses the commission of any cognizable offence. In the context of this clear legal position which, as noted above, is a vital component of a Rule of Law, the direction of the then Chief Minister to give a special treatment to Shri Dilip Kumar Sananda, M.L.A and his family about registering of complaint filed against them is totally unwarranted in law. Mr. Vilasrao Deshmukh as the Chief Minister of State of Maharashtra is expected to know that the farmers of the State specially those in the Vidarbha region are going through a great deal of suffering and hardship in the hands of money lenders.

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28. As Judges of this Court, it is our paramount duty to maintain the Rule of Law and the Constitutional norms of equal protection.

29. We cannot shut our eyes to the stark realities. From the National Crime Records Bureau (NCRB), it is clear that close to two lakh farmers committed suicide in India between 1997 and 2008. This is the largest sustained wave of suicides ever recorded in human history. Two thirds of the two lakh suicides took place in five states and those five states are Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh and Chhattisgarh. Even though Maharashtra is one of the richest state in the country and in its capital Mumbai twenty five thousand of India’s one lakh dollar millionaires reside, the Vidarbha region of Maharashtra, in which is situated Buldhana, is today the worst place in the whole country for farmers. Professor K. Nagraj of the Madras Institute of Development Studies who carried on a research in this area has categorized that Maharashtra could be called the graveyard of farmers.

30. The position is so pathetic in Vidarbha region that families are holding funerals and weddings at the same time and some time on the same day. In a moving show of solidarity poor villagers are accumulating their money and labour to conduct marriages and funerals of their poor neighbours. (See the report in Hindu dated 22nd May 2006).

31. This being the ground reality, as the Chief Minister of the State and as holding a position of great responsibility as a high constitutional functionary, Mr. Vilasrao Deshmukh certainly acted beyond all legal norms by giving the impugned directions to the Collector to protect members of a particular family who are dealing in money lending business from the normal process of law. This amounts to bestowing special favour to some chosen few at the cost of the vast number of poor people who as farmers have taken loans and who have come to the authorities of law and order to register their complaints against torture and atrocities by the money lenders. Theinstructions of the Chief Minister will certainly impede their access to legal redress and bring about a failure of the due process .

32. The aforesaid action of the Chief Minister is completely contrary to and inconsistent with the constitutional promise of equality and also the preambular resolve of social and economic justice. As a Chief Minister of the State Mr. Deshmukh has taken a solemn of oath of allegiance to the Constitution but the directions which he gave are wholly unconstitutional and seek to subvert the constitutional norms of equality and social justice. 

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38. This Court is extremely anguished to see that such an instruction could come from the Chief Minister of a State which is governed under a Constitution which resolves to constitute India into a socialist, secular, democratic republic. Chief Minister’s instructions are so incongruous and anachronistic, being in defiance of all logic and reason, that our conscience is deeply disturbed. We condemn the same in no uncertain terms.

39. We affirm the order of the High Court and direct that the instruction of the Chief Minister to the Collector dated 5.6.06 has no warrant in law and is unconstitutional and is quashed. We dismiss this appeal with costs of Rs.10,00,000/- (Rupees Ten Lakhs) to be paid by the appellant in favour of the Maharashtra State Legal Services Authority. This fund shall be earmarked by the Authority to help the cases of poor farmers. Such costs should be paid within a period of six weeks from date.

Have a look at the decision.

Retirement age prerogative of Government: Supreme Court

The conditions of service regarding government employees are governed in a strict regime in terms of the rule-based regime which governs the employment. While a number of additional safeguards are available to government employees (in comparison to those in private employment), the courts have been vigilant enough by not stretching the limits the protection available to them in a manner so as to render the governmental functioning otiose. In this line of reasoning the Supreme Court has declared that the fixation of retirement age is the prerogative of the Government and the same is beyond challenge. 

In State of U.P. v. Hirendra Pal Singh the Court was examining the validity of the order of the Allahabad High Court wherein the High Court had stayed the provision reducing the retirement age of District Government Counsel from 62 to 60 years and had allowed the incumbents to continue upto the age of 62. In this context noting that the High Court had not been appraised of the legal position regarding the change in retirement age, a three judge Bench of the Supreme Court clarified the law in the following terms;

7. ... So far as the issue of reduction of age from 62 to 60 years is concerned, it has not been brought to the notice of the High Court that it is within the exclusive domain of the State Government to reduce the age even in Government services. So in case of purely professional engagement, the age could validly be reduced by the State Government unilaterally.

8. A Constitution Bench of this Court in Bishun Narain Misra v. The State of Uttar Pradesh & Ors., AIR 1965 SC 1567 held that new rule reducing the age of retirement from 58 to 55 years could neither be invalid nor could be held to be retrospective as the said rule was a method adopted to tide over the difficult situation which could arise in public services if the new rule was applied at once and also to meet any financial objection arising in enforcement of the new rule. 

9. In Roshan Lal Tandon v. Union of India & Ors., AIR 1967 SC 1889, a similar view has been reiterated by this Court observing that emoluments of the Government servant and his terms of service could be altered by the employer unilaterally for the reason that conditions of service are governed by statutory rules which can be unilaterally altered by the Government without the consent of the employee. (See also B.S. Vadera v. Union of India & Ors., AIR 1969 SC 118; The State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., AIR 1974 SC 1; B.S. Yadav & Ors. v. State of Haryana & Ors., AIR 1981 SC 561; and State of Jammu & Kashmir v. Shiv Ram Sharma & Ors., AIR 1999 SC 2012). 

10. In K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr. etc., AIR 1985 SC 551, this Court examined the amended provisions of Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance, 1983 by which the age of retirement was reduced from 58 to 55 years and this Court upheld the amended provisions being neither arbitrary nor irrational. The court further rejected the submission of the appellants therein that the said amended provisions would have retrospective application taking away their accrued rights. (See also State of Andhra Pradesh etc. etc. v. S.K. Mohinuddin etc. etc., AIR 1994 SC 1474).

11. In view of the above, it is evident that even in government services where the terms and conditions of service are governed by the statutory provisions, the Legislature is competent to enhance or reduce the age of superannuation. In view of the above, it is beyond our imaginations as why such a course is not permissible for the appellant-State while fixing the age of working of the District Government Advocates.

Have a look at the decision.

Accountability of International Organizations

By definition 'International Law' is considered as 'soft law'. This is for the reason that unlike municipal law, international law lacks sanction i.e. ability to ensure compliance by the subjects except in the cases where the subjects by their own consent agree to comply. In this context, the nature and role of international organizations requires critical examination for the reason that there are no standards to adjudge the level of performance and the qualitative aspects of decision-making undertaken by such international organizations. 

In this perspective, Matthew Parish in his paper titled An Essay on the Accountability of International Organizations discusses the factual position of such organizations in as much as their accountability for actions is concerned. Discussing the conceptual foundations underlying the working of these organizations, the paper suggests rendering the actions of such organizations subject to the scrutiny of municipal courts so as to fix accountability and develops theoretical foundations to this effect. The rationale for such is explained by the author by stating that "we are not at liberty to treat international organizations as clumsy but harmless white elephants, lumbering over the fields in the middle distance but causing little harm or good in our immediate lives". In all, the paper provides meaningful insights into this less traversed path of international reckoning.

The abstract reads as under;

International organizations sometimes suffer from acute agency problems. Three exogenous methods of addressing those problems are considered: economic incentives, political accountability and legal accountability. For international organizations, the first is undesirable and the second inevitably weak. There is therefore an argument for heightened legal scrutiny of their actions. Yet international organizations have an unenviable track record of acting without regard to the most fundamental international standards of rule of law, and this article offers an unsightly catalogue of their legal aberrations. Moreover, the internal legal mechanisms international organizations have created ostensibly to hold themselves to account prove wanting at best. There may also be structural reasons why international courts and tribunals will never be able to conduct an adequate review of the important decisions international organizations routinely take. This makes those organizations’ assertions of blanket legal immunity from jurisdiction of domestic courts appear increasingly inexplicable, as it removes all possibility of legal accountability. The supposed rationales for legal immunities of international organizations are reviewed and proved wanting. The conclusion drawn is that international organizations should be subjected to radically improved regimes of international judicial oversight, or their immunities should be abrogated in certain areas so that they may be rendered subject to the jurisdiction of the domestic courts of the countries in which they operate, or both. Measures of this kind may dramatically improve the quality of decision-making and accountability of international organizations. 

Setting the Size of the Supreme Court

In the article entitled Setting the Size of the Supreme Court, F. Andrew Hessick III and Samuel P. Jordan explore the variables which essentially determine the perfect strength of the highest constitutional court of a country. Reflecting upon the United States Supreme Court, the paper takes into consideration factors such as (*) impartiality, (*) independence, (*) diversity, (*) representation, (*) efficiency, (*) cohesion, etc. which essentially determine the seamless integration and working of the court and on the flip side a contact conflict amongst the office bearers. 

The abstract states as under;

As with any institutional feature, the size of the Supreme Court should be informed by a definition of functional goals. This article describes how the current size of the Supreme Court is largely untethered from any such definition, and it begins the process of understanding how size and Court performance might interact. To do so, it identifies a list of institutional goals for the Supreme Court and explores how changing the size of the Court promotes or obstructs the attainment of those goals. Given that the Court's institutional goals are numerous and occasionally in tension, there is no definitive answer to the question of how large the Court should be. Instead, the optimal size of the Court depends on how one views the relative importance of each institutional goal and how those goals should be balanced. Unfortunately, the current size of the Supreme Court is not attributable to a careful balancing of these institutional goals, but instead is due to political efforts to secure power on the Court. Consequently, a reconsideration of the Court's size in light of institutional considerations is long overdue.

The paper provides an interesting reading in as much as even the Law Commission of India, in its 230th Report had recommended that the size of the Indian Supreme Court be increased and mulled over the possibility of setting up benches of the Supreme Court in other parts of the country. We also had an occasion to write on the same a long time back in our earlier post. 

Local Courts have no jurisdiction against United Nations

The Appeal Court in The Hague had recently issued a decision which may as well turn out to be a landmark one in as far as international law and the position of 'United Nations' is concerned. The Appeal Court affirmed a local court decision to hold that the United Nations is vested with immunity such that local courts do not have jurisdiction to decide claims against it. The Appeal Court was dealing with a challenge to the lower court's ruling where it had declined to exercise its jurisdiction in a claim raised by an association (comprising of kins of victims) claiming action against UN for failing to prevent Genocide in which many people were killed. The Appeal Court took note of the provisions of the 'UN Charter', the 'Convention on the Privileges and Immunities of the United Nations' to come to such conclusion. 

The Appeal Court in the Hague inter alia observed  as under;

4.2 Article II § 2 of the Convention lays down that the UN, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity. Pursuant to article 31 of the Vienna Convention of the law of treaties (Bulletin of Treaties 1977, no. 169) a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The Court of Appeal finds that in this light the immunity referred to in article II § 2 of the Convention, which is indisputably defined as broadly as possible, is clear and, considering - amongst other things – the considerations given hereinafter regarding article 105 of the Charter, does not allow any other interpretation than that the UN has been granted the most far-reaching immunity, in the sense that the UN cannot be brought before any national court of law in the countries that are a party to the Convention. 

4.3 The Association et al. take the position that the question whether the UN has immunity from prosecution should not be assessed on the basis of article II, § 2 of the Convention, but on the basis of article 105 of the Charter, which provides that the UN shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes. According to the Association et al. the immunity provided for under article 105 of the Charter is more restricted than that under article II, § 2 of the Convention, because on the basis of the former a court must determine in each and every case brought before it whether the immunity invoked is necessary for the realization of the UN’s objectives. The Association et al. adopt the position that article 105 of the Charter has priority over article II, § 2 of the Convention, because article 105 subsection 3 of the Charter provides that the General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of article 105 of the Charter, but that the Convention has no scope beyond the higher-classed Charter. Moreover, the latter is believed to be confirmed by article 103 of the Charter, which provides that the obligations under the Charter take precedence over the Members’ obligations pursuant to other international treaties.

4.4 The Court of Appeal does not share the Association’s view. In the opinion of the Court of Appeal it is evident, for it appears from the considerations preceding the provisions of the Convention, that the Convention and therefore also article II § 2 of the Convention, implement (amongst other things) article 105, subsection 3 of the Charter, in the sense that article II § 2 of the Convention further substantiates which immunities are necessary for attaining the objectives of the UN. There is no indication that article II § 2 of the Convention goes beyond the scope allowed by article 105 of the Charter in this respect.

4.5 It would be of no avail to the Association et al. anyway if the invocation of the UN’s immunity was tested strictly on the basis of article 105 of the Charter, for the question that needs to be addressed is not whether the invocation of immunity in this particular case in hand is necessary for the realization of the objectives of the UN, but whether it is necessary for the realization of those objectives that the UN is granted immunity from prosecution in general.

Have a look at the decision.


Similar sentiment has been expressed by the United States Court of Appeals for the Second Circuit which in Brzak v. United States declared that the officials of UN were immune from action before it. The Court of Appeals inter alia observed as under;

As the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless “it has expressly waived its immunity.” Id. art. II, § 2. Although the plaintiffs argue that purported inadequacies with the United Nations’ internal dispute resolution mechanism indicate a waiver of immunity, crediting this argument would read the word “expressly” out of the CPIUN. The United Nations has not waived its immunity. See Letter from Nicolas Michel, United Nations Under-Secretary-General for Legal Affairs, to Alejandro D. Wolff, Deputy Permanent Representative of the United States of America to the United Nations (May 15, 2006); Letter from Nicolas Michel, United Nations Under-Secretary-General for Legal Affairs, to John R. Bolton, Permanent Representative of the United States, to the United Nations (Oct. 19, 2006). Consequently, the United Nations enjoys absolute immunity and the district court’s decision to dismiss the claims against the United Nations was correct.

Our conclusion is further confirmed by the International Organizations Immunities Act of 1945, 22 U.S.C. § 288a(b) (the “IOIA”), which provides that international organizations designated by the President should receive the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” The United Nations has been so designated. See Exec. Ord. No. 9698, 11 Fed. Reg. 1809 (Feb. 19, 1946). The plaintiffs argue that designated international organizations no longer have absolute immunity in all cases, because, since that act was passed, Congress has passed the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 (“FSIA”), which strips foreign sovereigns of their immunity in certain circumstances. Plaintiffs argue that it is this narrower definition of sovereign immunity that now defines what sort of immunity the IOIA applies to international organizations. Although this argument has been rejected by at least one other Court of Appeals, see Atkinson v. Inter-American Dev. Bank, 156 F.3d 1335, 1340-42 (D.C. Cir. 1998), we need not resolve whether plaintiffs’ argument is correct for at least two reasons. The first is that, whatever immunities are possessed by other international organizations, the CPIUN unequivocally grants the United Nations absolute immunity without exception. The second is that the plaintiffs have not presented any argument, either at the district level or to us, which would suggest that one of FSIA’s exceptions to immunity would apply. Therefore, even under the plaintiffs’ interpretation of the IOIA, the United Nations would still be immune from suit.

Have a look at the decision.

European Executive Government: The 'Most Dangerous Branch'?

In his recently uploaded paper on SSRN titled 'Accumulated executive power in Europe: The ‘most dangerous’ branch of government in the European Union", Professor Deidre M Curtin (Professor of European Law, University of Amsterdam and Professor of International and European Governance, University of Utrecht) has nominated the Executive Branch of the European Union as the 'Most Dangerous Branch', given the host of powers accumulated in this wing of State-polity and the lack of accountability thereon. 

The abstract to the paper notes that "the executive branch of government in Europe in being gradually transformed in several significant respects. This phenomenon in placed in its historical perspective; at the same time it is recognised that something specific is going on in the political system of the EU with the almost continuous expansion of executive power in that context. At the same time this development is not always visible nor is it subject to an overall system of checks and balances. The layered and accumulated nature of the executive power being exercised in and around the EU complicates the discussion on accountability. The crucial challenge is to ensure that overall the growing executive power is subject to a cumulative system of checks and balances."

Taking note of various historical and comparative factors, the author has concluded inter-alia as under;

The scope and nature of executive power in a given political system remains difficult to define in substantive terms. This may have something to do with the fact that the executive power is rarely fixed and determinate but evolves over time, shaped by social and political circumstances as well as the letter of a constitution. One thing that does seem inherent in executive power is its tendency towards expansion. It seems that nowadays it is the executive branch that may be ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ At the same time the executive power can be considered in structural terms ‘in shadow'. In the political system of the EU this may be aggravated by the fact that the legislative and executive functions are so mixed together, more so than in the political systems of the constituent Member States where the legislative power will basically be exercised by a directly elected parliament (with input into the system by the executive power in terms of an often non exclusive power of legislative initiative).

The executive branch of government can arguably be considered today as ‘the most dangerous branch’ compared to the other two, the legislative and judicial branches particularly in the context of externalization and Europeanization. It can be argued that considerable emasculation has taken place in practice of the legislative branch in particular, despite the fact that with incremental Treaty revision processes, the European Parliament has acquired more powers of formal ‘co-decision’ over a wider range of policy areas. Since 9/11 in particular we have seen both in the United States and in Europe the consolidation of an executive power that subsumes much of the tripartite structure of government. ...

The problem that I have sought to highlight is that political actors may adopt decisions at one level with no forum able to hold them to account for their action, either politically as in a parliament or election procedure or legally as in a court. That gap in accountability may infiltrate other levels of governance such as the European level and subsequently the national level. This raises sensitive questions about which actors should be held to account: holding governments to account may no longer be enough and will need to be complemented with mechanisms and forums that focus both on the accountability of supranational executive bodies as well as national agencies and agents with dual loyalties (national and European). The crucial challenge in coming years is how these various levels can be better related and interconnected with one another in a perspective inspired by the need to ensure that growing executive power is subject overall to a cumulative system of checks and balances. ...

The paper provides an insightful reading on the way in which various European institutions are placed and the manner of their working in which they yield power. Historical changes (to note the gradual power-accumulation) are also documented. 

One can access the full paper at this SSRN link.

Video recording of wills to be promoted: High Court

Dealing with the case of inheritance of property on the basis of a will (technically called a 'Probate proceeding') the Delhi High Court in a recent decision has held that video recording of wills not only further the case of the parties but are also a reliance medium to prove the genuineness of a will. Noting the fact that even though the will was made (and recorded on video in 1985) when the Information Technology Act (of 2000) was not even in picture, the High Court found it a convenient way of determining the probate proceedings. The High Court even went ahead to give directions to the lower authorities to promote such video recording of wills such that inheritance disputes can be settled faster and without much doubt. 

Speaking on the legality and admissiability of video recording of will as evidence, the High Court stated;

Before concluding this Court would like to observe that the making of the video of the execution of the last Will in the present case has made the task of the Court easier in arriving at its conclusion as to its genuineness. Although the Information Technology Act, 2000 (IT Act) was not in operation when the video recording was made of the execution and attestation of the last Will, the evidence by way of video recording is admissible for proving the Will in question. The Supreme Court has in State of Maharashtra v. Prafull B. Desai AIR 2003 SC 2053 recognized in principle, although in the context of a trial, that evidence by way of video recording is admissible. This has been followed also in Sube Singh v. State of Haryana AIR 2006 SC 1117 and Rajendra Singh Rana v. Swami Prasad Maurya AIR 2007 SC 1305.

Declaring the legal position as aforesaid, the High Court went on to examine the practical significance of such video recordings and direct the lower authorities to initiate steps towards undertaking such recordings as under;

Under the provisions of the IT Act there should be no difficulty in Courts acting upon and accepting as evidence video or digital recordings of the execution of Wills subject to compliance with the requirement of Section 65B of the Evidence Act, 1872. This Court would like to impress upon the Sub-Registrars that with the availability of inexpensive gadgets like webcams, portable and desk top computers, and connectivity through internet, it should be possible to make a video recording of the entire process of execution of a Will at the time of registration (by focussing on the executor of the Will, and the attesting witnesses, and also the administering of certain standard questions by the registering authority to the Executor). It should be possible to have a certified copy of such video/digital recording clip (with the date and time embedded thereon) issued to the parties concerned. There should also be no difficulty in storing in hard disks (with back ups at different secure locations) the recordings of such digital video clips (with date and time embedded) for easy retrieval. This will eliminate to a large extent questions of genuineness or the capacity of the testator to make the Will. If not already done, a protocol should be developed in this regard (along with a manual of instructions to the Registering authorities) by the Government of the National Capital Territory of Delhi (GNCTD) in consultation with the National Informatics Centre.

Have a look at the decision.  

Goodbye House of Lords, Welcome United Kingdom Supreme Court

The father of all courts and perhaps also the oldest-highest court on the planet, the Appellate Committee of House of Lords stopped functioning on 31st of July this year and would now be replaced by the Supreme Court of the United Kingdom coming October. Giving Political Scientists a reason to rethink, United Kingdom finally has separated the judicial and legislative functions which earlier merged in the House of Lords, which performed the dual function of being a part of the legislative wing as well and also hearing cases as the highest court of appeal in the country.

Undone by the Constitutional Reform Act passed by the British Parliament in 2005, the Supreme Court for United Kingdom will take over from Michaelmas term and had already announced its sittings for the coming months, effectively starting from the 5th of October this year. The Supreme Court will now be the highest court of appeal for all matters of English Law, Welsh Law, and Northern Irish Law. 

Though in actual practice the judicial functions and legislative functions were separated in the House of Lords (with the members of the judicial committee not attending the sessions of Parliament), yet the main reason of the shift was the argument based on the concept of  'Seperation of Powers'. The proposal to shift were first formally introduced by the British Government in 2003 and thereafter were extensively discussed and debated both in public as well on the houses of the Parliament. Upon consideration of all these fronts, decision was taken to move on and leave behind its historical awe. 

The Court would be comprised on 12 judges appointed by Her Majesty by letters patent (a formal charter). In the new set-up, initially the former Law Lords will dawn the benches as the Justices of the Supreme Court with Lord Phillips the former Lord Chief Justice becoming the President of the Supreme Court. Thereafter the judges would be appointed by this procedure. 

The Supreme Court has been given its own separate building (and will not be housed like earlier in the Parliament itself) and is expected more to be open for public viewing unlike the earlier forum. The Court has already notified the procedure to be followed, directions for practice before it etc. on its official website (glad that it has one). 

Welcome Supreme Court ... :)