Unenforced legislations - reconsidering AK Roy

In a recent post on a related matter, I mentioned the judgment in AK Roy:

'In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.'

It is very interesting to compare AK Roy and several subsequent cases which have taken the same route with a British case decided by the far less 'activist' House of Lords:

In Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) the House of Lords held that it was unlawful for the Home Secretary to introduce changes to a scheme which were incompatible with an Act of Parliament. Parliament enacted a provision for compensating victims of crimes, with a clause empowering the Secretary of State to bring it into force. The Secretary not only did not bring it into force, but also issued an order instituting a less generous scheme. The majority held that although it was within the Secretary's discretion to decide when it was appropriate to bring the law into force, he was under an obligation to keep the matter under continuing review. The institution of the less generous scheme was a failure of this duty since it was clear that the Secretary did not intend to bring the law into force at all, and thereby frustrated Parliament's will.

The doctrine of reasonable expectations also played a role. To quote Lord Brone-Wilkinson:

"Although the victim of a crime committed immediately before theWhite Paper was published had no legal right to receive compensation inaccordance with the old scheme, he certainly had a legitimate expectation thathe would do so. Moreover, he had a legitimate expectation that, unless therewere proper reasons for further delay in bringing sections 108 to 117 of theAct into force, his expectations would be converted into a statutory right. Ifthose legitimate expectations were defeated by the composite decision of theSecretary of State to discontinue the old scheme and not to bring the statutoryscheme into force and those decisions were unlawfully taken, he has locusstandi in proceedings for judicial review to complain of such illegality."

Interestingly, both the majority and the minority employed separation of power arguments. The majority held that it was for the Parliament to repeal a law, not the Executive. The minority reminded the Court of its own limitations.

The majority opionion makes sense. There are several instances where it is quite clear that the Executive has decided never to implement a law, like the constitutional amendment in AK Roy. It has thereby frustrated Parliamentary mandate - surely the discretion to bring into force does not include the choice of never bringing it into force. It is easy to say that those aggreived should go back to the Parliament - but Parliamentary time is a valuable resource. In any case, the Parliament has expressed an intention and has not said anything to the contrary - shouldn't it generate some obligations on the Executive? In fact, if it is unhappy with a law, shouldn't it be the government's responsibility to go back to Parliament to get it repealed (like it did in the case of the Freedom of Information Act 2002) rather than it frustrating the legitimate expectations of the citizen as well as the will of the Parliament?

Even international law (I think) has comparable rules, where a country which has signed a treaty but not ratified it is nonetheless has the obligation to refrain from any action contrary to the spirit of the treaty.

Perhaps the courts cannot issue mandamus to bring the law into force. But surely there is a middle way, like in Fire Brigades Union? The challenge of coming up with appropriate remedies should not result in the denial of the right itself. In some cases, even a mere judicial declaration of the continuing obligation on the Executive to consider the date of implementation and seeking evidence to demonstrate the fulfilment of this duty might suffice.

Update:
This article discusses a related issue of bringing different provisions into force at different times, creating confusion:
'The Supreme Court was confronted with this predicament in a recent case, J Mitra & Co Pvt Ltd vs Assistant Controller of Patents & Designs.
The judgment described the case as a “classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of the Patents (Amendment) Act 2005”. There were amendments in 1999 and 2002, making significant changes in the patent law. But some sections were not notified, and others telescoped into the later amendments, creating a bewildering situation. This is what happens when different dates are appointed for the coming into force of different parts of the same Act, and the government does not enforce some portions.'

Venkatesan, thanks for pointing this out.

Update 2:
Apparently Aeltemesh Rein v. Union of India decided by the Supreme Court has already upheld a 'duty to consider' similar to that in Fire Brigades Union. I haven't read the case myself yet, but picked this up from a note Vikram sent (thanks) - am I correct in this? Has anyone else seen this case?

NHRC under a cloud

The Salwa Judum case in the Supreme Court has taken a curious turn with the petitioners questioning the impartiality of the NHRC, which was asked by the Supreme Court to submit a report on human rights violations by the Salwa Judum. One of the petitioners, Nandini Sundar, has referred to a recent story in Economic Times as the basis for her apprehensions that the NHRC's report to the Supreme Court, submitted on August 26, may not be objective. She said in a press release: "The leaking of the report to Economic Times clearly amounts to contempt of court. More disturbingly, the fact that the report was most likely leaked by the respondents - who should not have been in possession of a copy - casts into doubt the impartiality and independence of the NHRC."

Nandini Sundar quotes NHRC as saying that the ET report is twisted and not fully accurate. In this account, the NHRC suggests that the attacks on the police party accompanying them by some people did not deter the team visiting the areas, but does not give any details of the attacks. Considering that the petitioners have described the police as the principal violators of human rights, NHRC's incomplete reference to an incident of attack on the police during the team's visit, is likely to be misconstrued. Why refer to this incident at all in this manner, if the team can describe it in the report?

The next hearing of the case is on September 5, after which it appears, the report will be made public.

J&K: Pro and anti-secession

The J&K crisis has led to a renewed debate on whether the State deserves independence from India. Apologists for independence include Arundhati Roy, Vir Sanghvi and S.S.A.Aiyar. Those who argue against independence include Manoj Joshi, K.Subrahmanyam and V.P.Malik.

My heart lies somewhere between these two extreme positions. But it seems to me that analysts like K.Subrahmanyam confuse (read this)the republic's basic responsibility to sustain the fundamental ideals that make India such as secularism, with the perceived imperative to use force against what in reality, are aspirations for genuine autonomy, masquerading as azadi.

One can see similar contradiction in Malik's article. Malik invokes the French philosopher Ernest Renan to suggest what constitutes a nation: it is not speaking the same tongue, or belonging to the same religion or ethnic group, but having accomplished great things in common in the past, and the wish to accomplish them again in future.

Renan's lecture on nationalism needs to be read in full to understand this 19th century philosopher. He said: "A nation's existence is, if you will pardon the metaphor, a daily plebiscite, just as an individual's existence is a perpetual affirmation of life. That, I know full well, is less metaphysical than divine right and less brutal than so called historical right. According to the ideas that I am outlining to you, a nation has no more right than a king does to say to a province: "You belong to me, I am seizing you." A province, as far as I am concerned, is its inhabitants; if anyone has the right to be consulted in such an affair, it is the inbabitant. A nation never has any real interest in annexing or holding on to a country against its will. The wish of nations is, all in all, the sole legitimate criterion, the one to which one must always return."

Supreme Court's double standards on forest matter

My interest in the T.N.Godavarman Thirumulpad vs. Union of India got rekindled after the J&K Government's controversial decision not to seek the Supreme Court's opinion whether it could hand over the forest land to the Shri Amarnathji Shrine Board for non-forest purposes. Today's article by Sunita Narain in Business Standard exposes the Supreme Court's double standards in this case - one for the rich and the other for the poor, the former being allowed to get away with the use of forest land for non-forest purposes by paying a pittance, while the poor being denied any right to use the forest land for sustainable use. For those interested in tracking this case on a regular basis (the case comes up for hearing before the Forest Bench once in a week) this site is immensely useful. The credit for maintaining this site up to date must go to this dynamic environmental lawyer and activist, Ritwick Dutta, whose dedication to the cause has been widely recognised. Dutta explains his interest in this interview.

The importance of speaking orders/judgments

Time and again, the Supreme Court reminds the courts below of the importance of speaking orders. State of Himachal Pradesh v. Sardara Singh is the latest of such reminders, which deserves to be noticed. In this case, the High Court rejected the application for grant of leave to appeal.

Justice Arijit Pasayat said in his judgment: "The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all.

"Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court."

Dhavan's response to Venkatesan

Dr. Dhavan has sent the following in response to Venkatesan's critique. I have his permission to post it on the blog:

"Wrong But Delightful: A Response to V. Venkatesan

- By Rajeev Dhavan

1. What a wonderfully provocative review!

2. The main debate is on whether the Parliamentary debates were fulfilling (see Book pp. 34-5). Clearly they were not.

3. It is the OBC bench that was utterly confused about whether the creamy layer applied to SCs and STs (see Book pp. 227-233) where the contradiction is shown.

4. The important aspect of Nagraj and Coelho is the caveat that, 50% reservations, creamy layer and compelling necessity are essential in respect of future actions even validity of the constitutional amendments is upheld (see Book pp. 238).

5. Alas, you have reviewed only the epilogue (see Book pp.199 ff) and my supposed reversal of roles, but not the book.

6. I love your writing – right or wrong!!"

Rajeev Dhavan's new book on quota

Understanding Rajeev Dhavan is a challenging exercise - whether in the courtroom or in print. Here, (pp.5-6)I have done my best, of course as a critique.