Are “WE, THE PEOPLE OF INDIA” Not Entitled To Be Governed By the ‘Rule of Law’?

INTRODUCTION:

(1) The constitutional validity has been challenged of Chapters 1B and 1C of the Companies Act, 1956 inserted by Companies (Second Amendment) Act 2002, providing for the constitution of National Company Law Tribunal (`NCLT' or `Tribunal') and National Company Law Appellate Tribunal (`NCLAT' or `Appellate Tribunal') by raising, inter alia, the following contentions: 

   (i), (ii) and (iii)……..……….x…………..x…………x……………….x………   

  “(iv) The various provisions of Chapters IB and IC of the Act (sections 10FB, 10FD, 10FE, 10FF, 10FL(2), 10FO, 10FR(3), 10FT and 10FX) are defective and unconstitutional, being in breach of basic principles of Rule of Law, Separation of Powers and independence of the judiciary”.

This contention at para (iv) has been accepted by Supreme Court as per para 56(xiii) and 57(ii) of the judgment as follows. Recently, a five judge Constitution Bench of Hon’ble Supreme Court in  Union of India Vs. R. Gandhi (Civil Appeal No.3067 OF 2004; 2010 INDLAW SC 405; Decided on 11 May, 2010 ) has held, inter alia, as follows.

“56(xiii). The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent ministries or concerned Department.”

“57. We therefore dispose of these appeals, partly allowing them, as follows:

(i) We uphold the decision of the High Court that the creation of National Company Law Tribunal and National Company Law Appellate Tribunal and vesting in them, the powers and jurisdiction exercised by the High Court in regard to company law matters, are not unconstitutional.

(ii) We declare that Parts 1B and 1C of the Act as presently structured, are unconstitutional for the reasons stated in the preceding para. However, Parts IB and IC of the Act, may be made operational by making suitable amendments, as indicated above, in addition to what the Union Government has already agreed in pursuance of the impugned order of the High Court.”

The Protection of Human Rights Act, 1993

(2)(a) The Protection of Human Rights Act, 1993;  SECTION 2(1)(d) "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India.

(2)(b) SECTION 36. Matters not subject to jurisdiction of the Commission: “36(2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.” (emphasis and capitals mine in all above paras)

COMMENTS

(1)(a): With reference to the aforesaid case at para (1) above, it is submitted that the Preamble to the Constitution of India reads thus:  “WE, THE PEOPLE OF INDIA, having solemnly resolved  to  constitute India  into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: JUSTICE, social, economic and political;…..”

(1)(b): However, in fact, even after expiry of a period of more than two and a half years since pronouncement of above judgment of Supreme Court, the Debts Recovery Tribunals (‘DRTs’) are still working under the Ministry of Finance, the Parent Ministry, hence as presently structured, are unconstitutional. Neither the Central Govt has taken effective steps, nor hon’ble Supreme Court has monitored such an issue of fundamental importance.

 (1)(c): The question arises as to whether, “WE, THE PEOPLE OF INDIA” are not entitled to be governed by the Rule of Law and further, whether the orders being passed by DRTs and DRATs are not vitiated?

 (2): With reference to para (2) above, whether the (human) rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution are less valuable than an ordinary money claim, for the enforcement of which the limitation is ordinarily three years?



Note: The views expressed are my personal and a view point only.

 

Author:

Narendra Sharma,

Consultant (Corporate Legal)

E-mail: nkdewas@yahoo.co.in

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