The Executive VS Judiciary debate has reignited, thanks to the recent developments concerning Aadhaar. While the recent notifications by the Central Government making Aadhaar mandatory for Income Tax filing, mobile connections etc seem to be in clear violation of the orders of the Supreme Court, they are not isolated examples.
On one hand, the leaders of the government have been vocal about democracy’s triumph, but on the other hand, their government has failed to respect the orders of the apex court.
Below are four important cases in the recent past in which the Centre has openly defied the diktat of the Supreme Court.
Aadhaar
This case definitely tops the list. The Central government has been coming out with one notification after another, in clear violation of the orders passed by the Supreme Court.
The 11 August 2015 order of the Supreme Court states that obtaining Aadhaar shall not be mandatory. It states:
“1. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen.”
The order also clarifies that Aadhaar can be “used” by the Centre for PDS and LPG distribution schemes. This interim order of 11 August was subsequently modified by another order passed on 15 October. By this, the Court extended the permission to use Aadhaar for MNREGA, Employees Provident Fund, National Social Assistance Programme and Prime Minister’s Jan Dhan Yojana.
However, both the orders, though giving permission to the Centre to use Aadhaar for the exempted schemes, do not talk about permission to make it mandatory. In fact, both the orders spell out that Aadhaar is a voluntary scheme, and it cannot be made mandatory until the matter is finally decided by the Supreme Court.
On 3 January and 4 January this year, the Centre issued two notifications making Aadhaar number compulsory for MNREGA and EPS. This was in clear violation of two aforementioned interim orders passed by the Supreme Court.
Immediately after the two notifications were issued, the matter was mentioned on 5 January before Chief Justice Khehar by one of the petitioners, through Senior Advocate Shyam Divan. Though Divan sought an early hearing in the matter, the court brushed aside the same, and declined this request for the time being.
Fresh from the confidence of non-interference by the apex court, the Centre has now moved into top gear. They have now made it mandatory to have Aadhaar to file Income Tax Returns and to apply for a PAN card.
And that is not all. The Department of Telecom has also now issued a circular to Telecom companies, directing them to link all mobile numbers to Aadhaar.
Interestingly, the circular by DoT says that this has been done pursuant to an order of the Supreme Court. The Supreme Court order referred to by the DoT circular was passed by a Division Bench in a petition filed by NGO Lokniti Foundation. The said order and its interpretation itself is open to debate.
However, if the said order is interpreted to the effect that it mandates verification of mobile subscribers, then it will be in clear violation of the earlier order passed by larger Benches of the Court in the Aadhaar case. Interesting indeed.
Today, the Supreme Court again turned down the plea by Senior Advocate Shyam Divan for an urgent hearing, while also remarking that the interim orders of the Court which state that Aadhaar is not mandatory, but only voluntary with respect to social welfare schemes.
NJAC Case: Memorandum of Procedure
Perhaps the most blatant show of defiance by the Centre. This one might not be very well known outside the legal fraternity since judicial appointments is still a topic of discussion confined largely to legal circles.
Hence, some background.
On, 16 October 2015, a Constitution Bench of the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional. Subsequently, in what was unprecedented, the court invited suggestions for improving the Collegium system. Based on the inputs received, the court on 16 December 2015 passed an order by which it left the task of amending the Memorandum of Procedure (MoP) to the Central government.
The MoP is a document which sets out the procedure for appointment of judges to High Courts and the Supreme Court. It was first prepared pursuant to the directions of the Supreme Court in the Second Judges case.
Since it is an exercise to be carried out by the government in furtherance of a Supreme Court judgment, it is merely a step for implementation of the Court’s judgment. In other words, it is not a right that the Executive has, but merely a task left to them to enforce a judicial order. The order of 16 December itself makes this clear:
“It was at this stage of our reflection, that the learned Attorney General made an impassioned submission, not in any obstructive manner, but
as a matter of faithful assistance, suggesting that we should desist from pursuing the contemplated course of action. In this behalf it was pointed out, that the
formulation of the Memorandum of Procedure was an administrative responsibility which fell in the executive domain.
...we were also informed by the Attorney General, that the MoP and amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. This practice, we were informed, had been consistently adopted, in consonance with the directions contained in paragraph 478 of the Second Judges case.
In order to allay any fear that may be entertained by any of the stakeholders, it was submitted that the same procedure would be adopted now, if the task was entrusted to the executive. We are in complete agreement with the suggestion of the learned Attorney General.”
However, contrary to the submissions of the Attorney General on 16 December 2015, what the Centre did and continues to do has baffled legal experts and commentators alike.
In what has literally been a tug-of-war between the two wings of the State, the MoP has gone back and forth. The disagreement between the two was pronounced during the tenure of former Chief Justice of India TS Thakur. After his retirement, conflicting reports have been published; Times of India reported that the CJI had agreed to the ‘National Security’ clause, but The Indian Express subsequently reported the opposite.
Whatever be the factual position, the law as it currently stands, does not entitle the Union to bargain with the CJI on the MoP.
It is due to this reason that I consider it surprising that the Supreme Court has not reopened the NJAC case – in which it had passed the 16 December order – and hauled up the officials of the Ministry of Law and Justice.
This was precisely what the late Senior Advocate Anil B Divan said at a panel discussion organised by Vidhi Centre for Legal Policy and the Campaign for Judicial Accountability and Reforms on 31 August 2016.
Divan was very categorical in his remarks, stating that the Supreme Court should recall its order, by which it had left it to the Centre to finalise the MoP. He also said that the matter should be dealt with by the Supreme Court on the judicial side, given that the Centre is not co-operating with the drafting of the MoP. He said:
It is a judicial order, recall that order.
Despite this, the Supreme Court had refused to take up the issue on the judicial side as they kept going back and forth over the MoP.
Patiala House: Bar and Police Refusing to Obey the Bench?
The events began on 15 February of last year, when a bunch of lawyers had held the Patiala House District court to ransom. The reason was that JNU student Kanhaiya Kumar, charged with sedition, was being brought to the court for trial. A big group of lawyers gathered inside the court premises, and thrashed students from JNU and journalists who had come to report the proceedings. The hearing was, therefore, postponed to 17 February.
Meanwhile, social activist and JNU alum ND Jayaprakash filed a PIL in Supreme Court the very next day, i.e 16 February seeking, amongst other things, a direction the Union Home Ministry and Delhi Police to ensure the safety and security of persons inside the Patiala House court premises during the trial of Kanhaiya Kumar.
The petition was taken up for hearing on 17 February at 10:30 am the same day when the trial in Patiala House court was slated to be taken up.
The Court then passed an order regulating the entry of people inside the Patiala house courtroom where the hearing was slated.
The Court in its order also stated the following:
We are also informed that there is a possibility of a large gathering of various groups including the students and political parties at the Court when the matter is taken up. We are inclined to agree with such anticipation and we, therefore, deem it appropriate to direct the Commissioner of Police, Delhi to take such appropriate measures as he may deem fit to maintain the law and order situation in accordance with law.
Despite the clear direction to regulate entry of people into Patiala House and to take steps to maintain law and order, lawyers once again ran amok with the police remaining mute spectators.
The Court subsequently called for a report from the Delhi Police on why it was unable to control the hooliganism despite a strict direction to that effect. The Delhi Police had its own version of the story. But the fact that there was a clear disobedience of the Supreme Court’s order by the police under the Union Home Ministry remains as clear as daylight.
Judicial Appointments Case: Justices Valmiki Mehta and MR Shah
This is one case in which there were no formal judicial orders which were disobeyed by the Centre. However, each and every hearing in the PIL filed by one Anil Kabotra witnessed gripping exchanges between former Chief Justice TS Thakur and Centre’s lawyers.
On 12 August of last year, Justice Thakur was clearly upset by the fact that the transfer files of Justice Valmiki Mehta of the Delhi High Court and Justice MR Shah of the Gujarat High Court were not being cleared. He threatened to withdraw judicial work from the two judges if the transfer was not given effect.
Recommendations for transfer of Justice MR Shah from Gujarat High Court and Justice Valmiki Mehta from Delhi High Court were sent in February and March. These have not been given effect to. If this is the approach of the Union government, then we would have no option but to withdraw judicial work from these transferred Judges.
Two months down the line, Justice Thakur stepped on the gas and warned the Centre that it will summon top bureaucrats from the Prime Minister’s Office. This development came about after Attorney General Mukul Rohatgi submitted data relating to files cleared by the Centre. Rohatgi told the court that out of the eight recommendations pertaining to the Allahabad High Court, two had been cleared.
Thakur CJ was visibly unimpressed, commenting that it appeared that the government wanted a “confrontation”. Timely intervention by the Attorney General helped the Centre hold Justice Thakur at bay.
After Justice Thakur’s retirement this January, his successor disposed of the petition, noting that sufficient progress has been made. However, if newspaper reports are to be believed, Justices Mehta and Shah will continue in their respective parent High Courts, as the Centre has returned their transfer files to the collegium.
Even as the Centre continues to defy the court’s orders, it remains to be seen whether the apex court will take a stern stand on this trend.
(This article was first published on Bar and Bench.)
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