March 1, 2018

United by a Common Purpose: THE HINDU EDITORIAL

United by a Common Purpose: THE HINDU EDITORIAL

Entrenched in our commitment to a rule of law is what lawyers describe as stare decisis. That is, in plain English, a promise to stand by things decided, to respect and honour precedent. Today, with the Supreme Court seized by a maelstrom of crises, this principle stands deeply undermined. At first, the latest clash between judges on the court might strike us as a simple contretemps over theories of legal interpretation. But the consequences here are enormous and are already being felt across the country. The Chief Justice of India, Dipak Misra, has now established a bench of five judges, which he will head, and which will commence hearing arguments on March 6, to resolve the conflict. At stake is the court’s integrity.
United by a Common Purpose: THE HINDU EDITORIAL

Provision in Land Act                                                             

The issue itself emanates out of a divisive provision in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act), which replaced the Land Acquisition Act of 1894. The colonial law had codified powers of eminent domain in strikingly draconian fashion. Landowners were placed at the state’s mercy. Government was accorded vast discretion to expropriate land for supposed public use. Requirements of due process were scant, and the amount of money paid in return for land was often derisory, that too in the rare cases where it could be grasped from the exchequer’s strong hands.
Some might argue that the LARR Act, in repealing the 1894 statute, didn’t go far enough in correcting the wrongs of old, and that its basic premise, in re-recognising a wide power of eminent domain, is inherently flawed. But there can be little question that the number of safeguards that the law legislates has made the process of acquisition manifestly fairer. For instance, it compels a social and environmental impact assessment as a precondition for any acquisition.
Besides, it also acknowledges a need for a system of rehabilitation and resettlement for those whose livelihoods are likely to be affected by the transfer of land. At least partly, these protections intend to alter the traditional relationship between the state and the citizen, allowing communal benefit to occasionally trump interests of pure capital.

Compensation the key

One of the provisions, which seeks to give meaning to this larger aim, is Section 24 of the LARR Act. This clause, among other things, concerns acquisitions made under the 1894 law, where compensation payable to a landowner from whom land had been taken prior to the year 2009 has already been determined. In such cases, the new law stipulates, the state ought to have not only taken possession of the land but also paid the amounts determined as due, failing which the entire proceedings will lapse. This means that even where the state has put the land acquired to some use, its failure to pay the holder compensation would render the entire proceeding nugatory.
Plainly read, Section 24 might seem rather innocuous. But, in January 2014, soon after the law came into force, the state sought to fashion a conservative interpretation of the clause, only for a three-judge bench of the Supreme Court to quickly nip such attempts in the bud. Pune Municipal Corporation v. Harakchand Misirimal Solanki was a case where awards had been made by the government prior to 2009. The state argued that each of the landowners from whom land was acquired had specifically been told about the quantum of money that they were entitled to receive. Since they neither disputed the amount fixed nor came forward to receive the money, the government claimed it deposited cash payable by it into its own treasury. According to it, this action was sufficient to negate the operation of Section 24. Or, put more simply, the landowners, the government said, were not entitled to retake their lands by claiming that they hadn’t received their compensation. The Supreme Court, however, thought otherwise.
Ordinarily, the court held, the state is always obligated to pay the landowner money in terms of any award made. It was only in exceptional circumstances, defined in Section 31 of the 1894 statute, that the government could deposit those amounts into a court of law. These included cases where a landowner might have refused to receive compensation, for some reason or the other. But even there, a mere payment into the government’s own treasury wouldn’t suffice. The law mandated deposit into court. Therefore, the proceedings in all these cases under the 1894 law, the bench ruled, had to be annulled, with lands being returned to their original owners.
High Courts across India almost uniformly adopted this verdict, reversing acquisitions in a host of cases. Indeed, in September 2016, a two-judge bench of the Supreme Court in Delhi Development Authority v. Sukhbir Singh recognised the trend. The decision in Pune Municipal Corporation, it wrote, was “now stare decisis in that it has been followed in a large number of judgments.”

A different reading

Yet, despite the law having been settled so thoroughly, with benefits from its interpretation extending to a number of landowners, including, in particular, poor farmers, on February 8, a divided three-judge bench departed from the decision in Pune Municipality. In Indore Development Authority v. Shailendra, Justices Arun Mishra and Adarsh Kumar Goel, who comprised the majority — Justice Mohan M. Shantanagoudar partly dissented — found that in cases where a landowner refuses compensation, a payment into the government’s treasury was sufficient, and that there was no attendant obligation on the state to deposit this money into court. This reading clearly fits neither with the language of the LARR Act nor the law’s larger objectives. But this is one part of the problem. What makes the ruling patently unconscionable, though, is that it roundly disregards Pune Municipal Corporation, holding that the bench there showed a lack of due regard for the law.
Stare decisis, a principle foundational to the judiciary’s effective functioning, is predicated on a belief that settled points of law ought not to be disturbed. The idea is that a court’s rulings should represent a consistent position. If judges are allowed to easily depart from precedent, citizens might find themselves in an impossible position, where the statement of law remains prone to the constant vagaries of human interpretation.
In India, since the Supreme Court declares the law for the whole country, ensuring uniformity in its decisions is especially critical. But achieving this has proved challenging, because the court doesn’t sit as one, functioning instead as a series of differently sized panels. Therefore, to ensure that its decisions remain predominantly consistent, the court has carved out rules that make its judgments binding on all benches of the court of an equal or lesser strength. This convention was even expressly acknowledged by a Constitution Bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2004). There, the court held that a three-judge bench cannot overrule a precedent set by an earlier bench of equal strength, but must, in cases where it thinks the previous bench might have blundered, refer the dispute to the Chief Justice, seeking the creation of a larger panel. Maintaining such a rule not only ensures stability in the court’s rulings but also provides the court with the necessary flexibility to correct its errors in appropriate cases.
Ultimately, therefore, the decision in Indore Development stems from an act of impropriety. To altogether overhaulproblems such as these altogether might require a complete reimagining of the court’s role. Only a larger purgingof its jurisdiction, by relieving it of mundane disputes that clog its docket, will allow it to function cohesively. For now, though, to restore even a semblance of institutional integrity, the Constitution Bench must show us that the court still respects rules of precedent, that it recognises its obligation to speak in unison, and that, most significantly, it sees itself as an institution governed by a common and majestic purpose.

 LEARN VOCABULARY FROM THE HINDU EDITORIAL 

1) Entrenched
Meaning: (Of an attitude, habit, or belief) firmly established and difficult or unlikely to change; ingrained.
Example:”An entrenched resistance to change”
2) Stare
Meaning:  Look fixedly or vacantly at someone or something with one’s eyes wide open.
Example: “He stared at her in amazement”
Synonyms: Gaze, Gape
3) Decisis
Meaning: The legal principle of determining points in litigation according to precedent.
Example: “A doctrine of stare decisis”
4) Precedent
Meaning: An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.
Example: “There are substantial precedents for using interactive media in training”
Synonyms: Model, Exemplar
5) Maelstrom
Meaning: A situation or state of confused movement or violent turmoil.
Example: “The train station was a maelstrom of crowds”
Synonyms: Turbulence, Tumult
6) Contretemps
Meaning: A minor dispute or disagreement.
Example: “She had occasional contretemps with her staff”
Synonyms: Argument, Quarrel
7) Enormous
Meaning: Very large in size, quantity, or extent.
Example: “Enormous sums of money”
Synonyms: Huge, Vast
Antonyms: Tiny
8) Stake
Example: Mark an area with stakes so as to claim ownership of it.
Meaning: “The boundary between the two manors was properly staked out”
Synonyms: Mark off, Mark out
9) Emanates
Example: Give out or emit (a feeling, quality, or sensation).
Meaning: “He emanated a powerful brooding air”
Synonyms: Exude, Give off
10) Strikingly
Meaning: In a way that attracts attention by reason of being unusual, extreme, or prominent.
Example: “The stories strikingly illustrate the creative power of the imagination”
11) Draconian
Meaning: (Of laws or their application) excessively harsh and severe.
Example: “The Nazis destroyed the independence of the press by a series of draconian laws”
Synonyms: Harsh, Severe
Antonyms: Mild
12) Mercy
Meaning: Compassion or forgiveness shown towards someone whom it is within one’s power to punish or harm.
Example: “The boy was screaming and begging for mercy”
Synonyms: Leniency, Lenience
Antonyms: Ruthlessness, Cruelty
13) Accorded
Meaning: Give or grant someone (power, status, or recognition).
Example:”The powers accorded to the head of state”
Synonyms: Give, Grant
Antonyms: Withhold, Remove
14) Expropriate
Meaning: (Of the state or an authority) take (property) from its owner for public use or benefit.
Example: “Their assets were expropriated by the government”
synonyms: Seize, Take away
15) Scant
Meaning: Barely sufficient or adequate.
Example:”Companies with scant regard for the safety of future generations”
Synonyms: Little, Minimal
Antonyms: Abundant, Ample, Sufficient
16) Derisory
Meaning: Ridiculously small or inadequate.
Example: “They were given a derisory pay rise”
Synonyms: Inadequate, Insufficient
17) Grasped
Meaning: Take (an opportunity) eagerly.
Example: “Many companies grasped the opportunity to expand”
Synonyms: Take advantage of, Act on
Antonyms: Miss, Overlook
18) Exchequer
Meaning: A royal or national treasury.
Example: “An important source of revenue to the sultan’s exchequer”
19) Flawed
Meaning: Having or characterized by a fundamental weakness or imperfection.
Example: “A fatally flawed strategy”
Synonyms: Unsound, Defective
Antonyms: Sound
20) Manifestly
Meaning: In a way that is clear or obvious to the eye or mind.
Example: “We have manifestly failed to exercise good judgment”
21) Stipulates
Meaning: Demand or specify (a requirement), typically as part of an agreement.
Example: “He stipulated certain conditions before their marriage”
Synonyms: Specify, Set down
22) Lapse
Meaning: A brief or temporary failure of concentration, memory, or judgement.
Example:”A lapse of concentration in the second set cost her the match”
Synonyms: Failure, Failing
23) Nugatory
Meaning: Of no value or importance.
Example:”A nugatory and pointless observation”
Synonyms: Worthless, Of no value
24) Innocuous
Meaning: Not harmful or offensive.
Example:”It was an innocuous question”
Synonyms: Harmless, Safe
Antonyms: Harmful, Obnoxious
25) Nip
Meaning: (Of the cold or frost) damage or hurt.
Example: “The vegetable garden, nipped now by frost”
26) Bud
Meaning: A friendly form of address from one boy or man to another.
Example: “I’ll tell you what, bud”
27) Quantum
Meaning: A required or allowed amount, especially an amount of money legally payable in damages.
Example:”The court must determine the quantum of compensation due”
28) Obligated
Meaning: Require or compel (someone) to undertake a legal or moral duty.
Example: “The medical establishment is obligated to take action in the best interest of the public”
29) Annulled
Meaning: Declare invalid (an official agreement, decision, or result).
Example: “The elections were annulled by the general amid renewed protests”
Synonyms: Declare invalid, Declare null and void
Antonyms: Restore, Enact
30) Verdict
Meaning: A decision on an issue of fact in a civil or criminal case or an inquest.
Example:”The jury returned a verdict of not guilty”
Synonyms: Judgement, Adjudication
31) Dissented
Meaning: Hold or express opinions that are at variance with those commonly or officially held.
Example:”Two members dissented from the majority”
32) Prone
Meaning: Likely or liable to suffer from, do, or experience something unpleasant or regrettable.
Example:”Farmed fish are prone to disease”
Synonyms: Susceptible, Vulnerable
Antonyms: Resistant, Immune
33) Vagaries
Meaning: An unexpected and inexplicable change in a situation or in someone’s behaviour.
Example: “The vagaries of the weather”
Synonyms: Quirk, Idiosyncrasy
34) Carved out
Meaning: To create or obtain something that helps you by skillful activities.
Example: ”She carved out a reputation for herself as a high-powered lawyer”
35) Overhaul
Meaning: Take apart (a piece of machinery or equipment) in order to examine it and repair it if necessary.
Example: “The steering box was recently overhauled”
Synonyms: Service, Maintain
36) Purging
Meaning: Remove (a group of people considered undesirable) from an organization or place in an abrupt or violent way.
Example:”He purged all but 26 of the central committee members”
Synonyms: Remove, Get rid of
37) Mundane
Meaning: Lacking interest or excitement; dull.
Example: “His mundane, humdrum existence”
Synonyms: Humdrum, Dull
Antonyms: Extraordinary, Imaginative
38) Clog
Meaning: Fill up or crowd (something) so as to obstruct passage.
Example: “Tourists’ cars clog the roads into Cornwall”
39) Docket
Meaning: A document or label listing the contents of a consignment or package.
Synonyms: Document, Chit
40) Semblance
Meaning: The outward appearance or apparent form of something, especially when the reality is different.
Example: “She tried to force her thoughts back into some semblance of order”
Synonyms: Appearance, Outward appearance

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