Something About The Law

With Chief Justice KG Balakrishnan’s retirement in the first half of this month, came a series of long pending judgments. Be it ranging from the constitutionality of narco- analysis, the Reliance case to the permissibility of arbitrary removal of Governors under the Constitution. Below is a short summary of some of these decisions.

Let’s start with Bhim Singh v. Union of India. The issue was whether the fact that the Governor held office during the ‘pleasure of the President’ under Article 156 meant that he/she can be removed arbitrarily. The Court held that the doctrine of pleasure is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons. The Court also delved into the role of a Governor and stated that he or she ought not to be in sync with the mandate of the Union Gov’s policies and he is neither an employee or agent of the Union government.

In Union of India v. R. Gandhi, the Supreme Court upheld the validity of the National Company Law Tribunal (NCLT). The NCLT was introduced by an amendment to the Companies Act, 1956 but not yet notified. However, it was challenged in the Madras High Court stating that the powers of the High Court cannot be transferred to a quasi- judicial tribunal. The Supreme Court, while upholding the validity stated that only judicial members (lawyers or judges) can be part of such tribunal. A good comment can be found on Indian Corporate Law.

A constitutional bench in K Krishna Murthy v. Union of India, upheld the constitutional validity of Article 243 D and 243 T that provide for reservations in local panchayat bodies. CJI Balakrishnan (now ex.) stated that the nature and purpose of reservation in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Articles 243-D and Article 243-T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self-government.”

The Bench, however, made it clear that the ceiling of 50 per cent vertical reservation in favour of SC/ST/OBCs should not be breached in the context of local self-government. Further, it stated that no creamy layer can apply in the context of political representation.

After a two year gap, the Court finally delivered its judgment on the Constitutionality of narco- analyses tests. In Selvi v. State of Karnataka, the Court ruled that the use of narco analysis, brain-mapping and polygraph tests on accused, suspects and witnesses without their consent was unconstitutional and in violation of the protections in Article 20(3) and the right to privacy under Article 21. While criticisms may arise in terms of the Court being soft on terror, the judgment seems to have given true meaning to the protection against self- incrimination under Article 20(3). What is interesting in this decision though is that the question before the Court was only as to narco- analysis but the Court also ruled on the validity of polygraph and brain mapping tests. I personally was assisting/ working under Mr. Andhyarujina in this case and it surely was a great experience for me.

And finally there’s the Reliance dispute where the Supreme Court refused to recognise the MoU between the Ambani brothers and held that the price of natural national resources cannot be determined by a private arrangement and the Government ought to decided the minimum price.

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