Chief Justice Balakrishnan and his team met Canada's Chief Justice Beverley McLachlin and other Canadian supreme court judges and some senior attorneys in Ottawa. They had discussions on religious and human rights in the two countries. The legal luminaries also visited Montreal and Toronto before leaving for India on May 25.
The South Asian Bar Association headed by Ron Choudhry held a reception in honour of the Indian judges on Saturday, May 24 where a number of South Asian lawyers and others were present.
Justice Balakrishnan told rediff India Abroad Senior Editor Ajit Jain in Toronto that they have 60,000 cases pending in the Supreme Court. "At present we have only 26 judges. We are likely to have an additional five judges soon."
"Our real problem is the number of cases before the Supreme Court and the consequent delays. We have increased out disposal rate by 20 per cent but cases both in the Supreme Court and high courts are increasing at a faster rate," the judge explained.
What's the purpose of your visit to Canada?
We are here for the annual Indo-Canadian judges conference. We discussed two subjects with our Canadian counterparts: One is religious rights. India has so many communities and castes. Canada also has so many ethnic minorities and their religious rights have to be protected. Our discussion was how these rights have to be enforced and protected.
The Indian Constitution provides for religious rights under Articles 25 to 28. The question was to what extent these rights are to be enforced by the courts: One paper was presented from the Indian side by Subramaniam and another paper was presented from the Canadian side.
The other was human rights and terrorism. In the process of enforcing terrorism legislation, people complain about violation of human rights. You take the case of the Terrorist and Disruptive Activities (Prevention) Act. When TADA lapsed in 1995, it was replaced by the Criminal Law Amendment Bill.
Though TADA and the CLA have gone, there are still state enactments to deal with terrorist activities. Various states have passed such acts to control terrorist activities.
In the process of enforcing provisions of these acts, there could be allegations of human rights violations. The main problem is fine tuning these acts and balancing human rights.
We have so many terrorist attacks. When dealing with controlling terrorist activities, naturally there will allegations of human rights violations. In TADA, the main provision was whether a confession made to the police is admissible or no. TADA was challenged and the Constitutional validity of the act was upheld by the Supreme Court but some stringent conditions were imposed.
What did the Canadian judges think about Indian anti-terrorist laws?
They have great appreciation for the Indian judiciary specially on the question of human rights.
Another important thing they like is our environmental laws, and the Supreme Court's intervention in this area. The Supreme Court has repeatedly ruled to protect forests and stop non-forest activities. For any construction or mining activity or even to lay a pipeline in sanctuary areas, the Supreme Court must give clearance.
If the court has to intervene in each case, it means the executive authority has no say in licensing.
The executive authority -- the forest advisory board -- has to approve the application. Then the Supreme Court does the judicial review. The executive has no authority to simply grant license for activities in forests. The Supreme Court will supervise it and give clearance.
Of course, there are allegations of delays in our giving clearance. Normally we take it up urgently. Every Friday afternoon the forest bench of the Supreme Court sits.
That is why forests are now being protected, sanctuaries are being protected. It is a great contribution by the Supreme Court.
People say the Supreme Court has become politically proactive.
That's because every political matter comes to court. We cannot say no we don't want to take a decision on this issue because it is political.
But take the case of the recent dissolution of the Bihar assembly. Justice Pasayat and I made a decision that the Presidential decision in dissolving the assembly was right but the majority of the bench said it was wrong. So, the Presidential order was set aside.
Political matters with legal implications will come to the court. We are not inviting any cases. If political matters come to the court for judicial review, we have to deal with those matters. People challenge decisions by state assemblies, by Parliament or the Election Commission. It is part of our Constitution that any executive action can be challenged in court.
The recent Supreme Court's decision that all businesses run in private homes should be closed down has resulted in the loss of the livelihood of thousands of families.
That's in New Delhi. This decision was taken by the court -- I was not on that bench -- because there was no proper construction and planning. There are so many illegal constructions in Delhi. People started constructing residential buildings in non-residential areas. And in residential buildings, without proper permission, they started to use it for business purposes. In some areas there were all kinds of construction activities without valid permission.
So it was at the instance of the court that some buildings had to be demolished. Some buildings were sealed. These decisions were challenged and some cases are pending before the court. But now the imposition is not that rigorous.
People are complaining that their businesses have been closed down, their properties have been sealed. The lower courts are proceeding very slowly and they have become homeless.
These are all unauthorised constructions. The builders then sold it to innocent people who suffer the consequences. Now all problems are being settled. I understand that the lieutenant governor of Delhi has ordered that the ground floor can be used for non-residential purpose. In the West, they will never allow construction in a residential area for non-residential purposes. In India such laws are not strictly enforced.
Photograph: Ajit Jain
