Madras High Court Questions Parliament On Laws Regarding Violation Of Fundamental Rights By State/Officials

BRIEF OVERVIEW

• "Number of cases/decisions could be quoted, wherein the Constitutional Courts have suggested or bringing the new Act or to bring suitable amendments in the various existing Acts and till date, they have not been done."While observing that either the Parliament or the State Legislature, are not taking up the suggestions/directions of the Constitutional Courts seriously, the Madras High Court remarked on 1st December 2020.

• While noting that "there should be a separation of powers between the three wings of the State, namely, Executive, Legislature and Judiciary", the Bench of Justice N. Kirubakaran and Justice B. Pugalendhi, in its order, specifically observed,"The response shown by the other Wings to the suggestions made by the judiciaryregarding the important issues for the enactment of suitable laws pointing out the absence of law as on date orthe necessity to make new laws or to amend the existing Acts, is not positive and thesuggestions made by the constitutional Courts are not considered by the legislatures very seriously and acted upon."

COURT’S OBSERVATIONS

• Without mincing words, the Bench remarked,"The history would tell that the suggestions given by the Honourable Supreme Court and various High Courts have been consistently ignored by the respective Governments."

• To drive home the point, the Court cited the ruling of the Apex Court in the Case of V. Sudeer v. Bar Council of India AIR 1999 SC 1167,wherein the SC struck down the Apprenticeship Rule and opined that it was introduced onlyto enhance the quality of the legal profession and the legal training is necessary and the Parliament should make an amendment in the Advocates Act, 1961.

• To this, the High Court said,"Till date, even after passing of two decades, namely, 21 years, the Government is not bothered to bring an amendment to the Advocates Act, 1961, to have apprenticeship."

• The High Court also cited the Apex Court's ruling in the case of Vishaka and others v. State of Rajasthan reported in AIR 1997 SC 3011 and further observed, "Even though the said judgment came to be passed in the year 1997, only after 14 or 15 years only,the Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013."

FURTHER OBSERVATIONS

• The Court also observed,"It seems that there is no proper Wing in every Department of the Government to note the suggestions/directions given bythe Courts and bring them to the notice of the policymakers. Therefore, there is a necessity to have such a Wing in every Department."

• The Court, in its order, observed that there is no legislation in the field of 'Torts and State Liability' in India.

• The Court said that though the recommendations have been made by the Law Commission to the Union Government forcomprehensive legislation in the field of 'Torts and State Liability' as early as in the year 1965-1967, "except introduction of some Bill in 1965-1967, nothing came out as an Act."

• The Court also noted that "the Honourable Supreme Court time and again has been insisting upon the necessity to have comprehensive legislation in theabove subjects."

• The Court also cited the Apex Court's rulings in the cases of MCD v. Uphaar Tragedy Victims Association (2011) 14 SCC 481and Vadodara Municipal Corporation v. Purshottam V. Murjani and others (2014) 16, wherein SC reiterated the need for comprehensive legislation in thefield of 'Torts and State Liability'.

NON-APPOINTMENT OF CHAIRMAN AND MEMBERS OF THE LAW COMMISSION OF INDIA

• The Court pointed out that the tenure of Chairman of the 21st Law Commission already came to an end and 22nd Law Commission of India was constituted by Notification, dated 21.02.2020.

• However, the Court noted,"So far the Chairman and Members have not been appointed. The non-appointment of theLaw Commission of India which is like an Advisory Board, for a long time,will affect the progress of the law making process in the country."

• In view of the above, the Court, suo-motu, impleaded (i) Union of India, represented by its Secretary, Ministry of Parliamentary Affairs, New Delhi;(ii) The State of Tamil Nadu, represented by its Chief Secretary, Secretariat, Chennai; and (iii) The Secretary to Government,Government of Tamil Nadu, Law Department, Secretariat, Chennai, as the respondents 4 to 6.

THE COURT’S QUERIES

• (a) In how many judgments, the Constitutional Courts have recommended for enactment of new laws or amendments of the existing Acts, so far?

• (b) How many orders have been acted upon and suitable Acts/Rules and amendments to the existing Acts, have been done so far and what are all the new Acts, have been done so far and what are all the new Acts/Rules and the amendments made so far?

• (c) How many judgments are being acted upon and suitable Acts/Amendments are in the process of enactment?

• (d) When will the Parliament bring comprehensive suitable legislation in the field of 'Torts and State Liability'for violation of fundamental rights of the citizens at the hands of the State and its officials?

• (e) Whether the Central and State Governments are having appropriate Wings to note down the judgments/orders of the Constitutional Courts,wherein suggestions for enacting new Acts or amendments have been enacted/proposed or recommended?

• (f) If there is no such Wing, when such Wing will be established to bring those suggestions to the higher-ups or policymakers to act upon suggestions given by Courts?

• (g) When does the Central Government appoint Chairman and Members of 22nd Law Commission of India?