Law and Justice

Archive for the ‘Supreme Court’ Category

According to the Second Amendment of the Bill of Rights, Americans have the right to hold and bear arms for self-defense, an ability that aggressive Michigan criminal defense lawyers work hard to protect. However, in recent years handgun bans in various major cities in the United States have made that a difficult task. Fortunately, in a recent U.S. Supreme Court decision, the rights of

American citizens to keep and bear arms were upheld, extending to state and local levels. Since 1982, the Midwest city of Chicago has had some of the strictest handgun laws in the country. Residents were not allowed to own handguns for personal use, even in their homes.

Despite these harsh firearm laws, changes were set in motion in 2008. This was when the United States Supreme Court ruled that the Second Amendment assertion that the rights of individuals to possess a gun for self-defense applied to the nation’s capitol. However, since Washington D.C. is a federal city and not a state, it was not specified whether or not the ruling extended to other state or municipal laws.

Fortunately, early Monday morning the Supreme Court clarified themselves. In a 5-4 ruling, the court reasserted the constitutional protection of the Second Amendment to include state and municipal laws, ultimately having both national and local implications. According to gun-rights advocates, this victory for the Second Amendment could potentially allow constitutional appeals to restrictions on handguns be heard and granted nationwide.

As evidenced by the decision handed down from the Supreme Court, the legal process is a complex and ever-changing one. If you have been accused of criminal charges, it is important to find out all your options before proceeding with any type of defense. For this, it is in your best interest to contact knowledgeable Michigan criminal defense attorneys for assistance. Doing so immediately can provide superior legal representation designed to protect your individual rights and freedoms including the right to own handguns for personal use.

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Supreme Court Case doesn’t Open the Floodgates to Discharging Student Loans in Bankruptcy.

The United States Supreme Court affirmed a lower court ruling that discharged Francisco J. Espinosa’s student loans in bankruptcy. The ruling was initially haled as a victory for borrowers and debtors. However, a closer look at the narrow ruling by the High Court establishes that debtors must establish that a student loan constitutes an undue hardship to discharge student loans through bankruptcy.

Mr. Espinosa had taken out four student loans to attend trade school. Four years later, he filed for Chapter 13 bankruptcy, and offered a repayment plan to the court, proposing that he repay the principal over five years, without interest. The bankruptcy judge approved his proposed repayment plan. The lender received notice of the proposed plan, but failed to file an objection. The court approved the plan. The lender failed to appeal from the court’s order within the time permitted by law. Mr. Espinosa repaid the principal on the loan pursuant to the repayment plan approved by the court, and the court discharged the outstanding interest. Years later, the lender attempted to reopen the bankruptcy court case and set aside the discharge of the interest.

On appeal, the lender argued that the bankruptcy court judge did not make a finding that the student loans constituted an undue hardship for Mr. Espinosa, as required by the Bankruptcy Code. In considering the case, Justice Clarence Thomas, writing for the Supreme Court specifically noted that the bankruptcy judge had erred in failing to make the required finding of undue hardship. However, because the lender had failed to timely object, and failed to file the proper appeal, the case had grown stale. “The bankruptcy court’s failure to find undue hardship before confirming Espinosa’s plan was a legal error,” Justice Thomas wrote in the majority opinion. “But the order remains enforceable and binding on United because United had notice of the error and failed to object or timely appeal.”

Noting that the Supreme Court specifically found that the bankruptcy judge had committed legal error probably precludes or severely limits the precedential value of the Espinosa case. In this case, the discharge came about because the lender slept on its right to object and timely appeal. If similarly situated lenders did not already have good reason to be vigilant for debtors seeking to discharge some or all of their student loan obligations in bankruptcy, they certainly will after the Espinosa decision.

Rather than being a great victory for debtors and borrowers, the Espinosa case actually reaffirmed that the Bankruptcy Code requires judges to make a determination of undue hardship. Failure to do so would constitute reversible error in other cases under different circumstances. Consequently, the Supreme Court’s decision does not open the floodgates to student loan discharges.

A World War I memorial will be allowed to stay in the Mojave Desert, and though covered since 2002 because it offended some people as a religious symbol is now unveiled again. It was the United States Supreme Court that allowed the Cross, on private land owned by the Veterans of Foreign Wars to stay after a protracted controversy. The Cross has stood for about 75 years in the desert. The question came to, Is the Cross religious symbol for Christians solely, or War Memorial for American dead?

In California and even San Francisco’s Bay Area the subject of a cross in a remote desert spot in the Mojave was a highly controversial matter. What about the cross on public land? Does this not violate separation of Church and State? was hotly asked.
 
A religious symbol cannot be on public land, said Frank Buono who is now retired from the Park Service. He brought the case to The Supreme Court over a ten year period with the help of The American Civil Liberties Union. According to The New York Times, “The white wooden cross, roughly 5 feet tall, stands atop Sunrise Rock in California’s San Bernardino County.” It is actually made of pipe today. The Supreme Court did not say whether this was a simple, dignified, and even popular War Memorial of little note but some popularity among the private individuals who visited it, and those who built it. The Court took on this almost humble case that to some appeared overblown.
 
A PDF of the Supreme Court decision is here.
 
The announcement of the Court’s result was made and reported in major newspapers April 28, 2010. Writing for the Supreme Court in Salazar v. Buono, Justice Anthony M. Kennedy said:
“The District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”
 
The Veterans of Foreign Wars agreed. One could easily surmise that’s the real issue, the real case from their vantage point. Many veterans agreed.
 
Gabriel Nelson, writing in his blog in The New York Times, said, “The Supreme Court ruled today that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve.”
 
There was no big hullaballoo, but a minimal statement with dissent by the Supreme Court. Gabriel Nelson put it well in his low key remark on how the Interior Department had acted properly. This writer has taken some snippets from other newspaper reports that demonstrate all are in accord in their reporting of the facts, and as the Supreme Court noted it was the facts that led them to their conclusions on the decision.
 
In its brief on behalf of Interior Secretary Ken Salazar, Solicitor General Elena Kagan said the cross did not imply government sponsorship. The transfer of land to the Veterans of Foreign Wars that required the installation of a plaque dissociating the statue from the federal government, she wrote, satisfied the problem of Church/State religion (Christian).
 
The Christian Post said in its report, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” wrote Justice Anthony Kennedy. “This cross,” he wrote, “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles.”
 
As a taste of the real argument in differences on the United States Supreme Court, it appears to this writer that Justice Anthony Kennedy caught the essence of the issue separating Justices. The Wall Street Journal noted in their report, Justice Stevens’s dissent argued that Congress wasn’t taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam.
 
JESS BRAVIN Wall Street Journal writer pointed out in his article, The cross—estimated at five to seven feet tall—stands on Sunrise Rock in a remote patch of desert. Veterans, some of whom had moved to the region for health reasons, first erected a cross at the site in 1934 and it was often used for Easter services. The current version was assembled from painted metal pipes in 1998 by Henry Sandoz of Yucca Valley, Calif.
 
Though The Wall Street Journal called the decision one whereby the Cross was determined more war memorial than religious symbol, the grass roots battle in California called for many statements that: Yes, it was significantly and first a war memorial, but it was a religious statement for the war dead. There the Supreme Court did not necessarily agree, but it did not make sweeping decisions. Justice Kennedy wrote, Because of the “highly fact-specific nature” of the case, it is “unsuited for announcing categorical rules.”
 
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Stevens’s dissent. Justice Stephen Breyer dissented separately.
 
Images:  (1) Mojave Desert Cross, by Associated Press; (2) Mojave Desert Cross, by unknown.

I am very happy to see the judgment of the Supreme Court on National Company Law Tribunal.  I have read the judgment of Justice Jayasimha Babu of Madras High Court regarding the constitution of National Company Law Tribunal and Appellate Tribunal in the Writ Petition preferred by Madras Bar Association many times. It was vehemently argued before the Madras High Court that the powers and jurisdiction of Court is taken away by the executive from time to time by constituting Tribunals. In my opinion, the Madras High Court could have stayed the constitution of National Company Law Tribunal as it takes away a very important jurisdiction of the High Court and the powers exercised by the High Court for years traditionally. I don’t think that giving a reason as to staying the constitution of National Company Law Tribunal is a difficult thing and especially in view of the functioning of the Company Law Board and the experience. Despite all this, laudably, the Madras High Court has upheld the power of executive in constituting National Company Law Tribunal though it stayed the certain provisions of the Companies (Second Amendment) Act, 2002. The Madras High Court has highlighted most important issues like independence, impartiality and quality of presiding officers while delivering the judgment on Constitution of National Company Law Tribunal. As everybody knows, the judgment of Madras High Court is upheld by the Supreme Court with elaborate observations in order preserve the independence and impartiality of an adjudicatory forum like National Company Law Tribunal. Though, we tend study the difference between Tribunals and Courts academically, there is no much difference between Tribunals and the Courts logically. The only difference may be that the Tribunals are constituted by a special enactment which may follow special procedure and need not follow Civil Procedure Code. As such, the basic principles like independence, impartiality and quality of presiding officers is to be preserved at any cost. In my opinion, it is part and parcel of basic structure of Constitution of India.

I am a critic of judiciary to some extent and a person to see the needed legal reforms in India aiming at effective and speedy justice. But, when it comes to exercise of powers by the High Court under Companies Act, 1956, I was of the opinion that the High Court or the Company Court is doing well despite many inevitable complications. Constitutional Courts have laid down wonderful principles regarding interpretation of provisions of Companies Act, 1956. After constitution of Company Law Board, if we see the difference between the powers exercised by the Company Law Board and the High Court, in my opinion, High Court is doing well compared to Company Law Board. High Court faces so much work pressure and had to listen and pass orders in many matters. It is not the case when it comes to Company Law Board. Many feel that the remedy before the Company Law Board was not effective and there are so many reasons as to why the litigation before Company Law Board was not effective and it is also addressed indirectly in the judgment of Madras High Court and the judgment of Supreme Court on constitution of National Company Law Tribunal.

The object behind introducing a Companies Bill is really good and I don’t think that it is a big exercise. What is important is that providing an effective reddressel to the companies or the shareholders when they approach the court or the tribunal for the protection of their corporate rights.  With the proposed Companies Bill, most of the powers of High Court are taken away with the constitution of National Company Law Tribunal and the Appellate Tribunal. There is a specific bar on the jurisdiction of Civil Courts in entertaining a company matter. I have read the paper statements that the Ministry of Corporate Affairs is planning to approach the bench of the Supreme Court again asking for a review on the ground that the members of ICLS are not allowed to be presiding officers of the National Company Law Tribunal. As I have read, according to the Ministry of Corporate Affairs, the members of ICLS are most talented and suited to deal with the company related issues. It is emphasized that there is so much procedure to be followed to introduce the Companies Bill again in the Parliament subsequent to the judgment of Supreme Court on NCLT.

I am not on the issue of the intelligence of the members of ICLS at all with due respect to the members of ICLS, but, I have some doubts like:

1. Why the Companies Bill is sought to be introduced in the Parliament knowing fully of the proceeding before Supreme Court?

2. Why Company Law Board could not be effective as opined by many companies and shareholders?

3. Was there any complete assessment as to why the Company Law Board could not provide an effective remedy?

4. Is Ministry of Corporate Affairs convinced that the Company Law Board is successful in achieving its object?

5. How come the Ministry of Corporate Affairs is convinced that the National Company Law Tribunal can effectively exercise most of the powers under the provisions of Companies Act, 1956 where there is no much difference in wording between the provisions dealing with the powers of Company Law Board under Companies Act, 1956 and the powers of National Company Law Tribunal under the proposed Companies Bill barring the bar on Civil Court’s jurisdiction?

6. Was there any thinking as to the implementation of the orders of the Company Law Board or the proposed National Company Law Tribunal as the orders of the Company Law Board were violated directly in many cases?

7. Was there any discussion with the Law Ministry or the concerned people regarding the powers of Contempt of National Company Law Tribunal in view of the general application of provisions of Contempt of Courts Act?

8. Will it not cause a great hardship to the companies or the corporates if only there is one Appellate Tribunal in Delhi?

9. Did the Ministry of Corporate Affairs take note of filing fictitious forms with the ROC under MCA scheme and procedure for removal of those forms?

Constitution of National Company Law Tribunal and its effective functioning is very important for the corporate world. It is not an easy thing for the Ministry of Corporate Affairs to ensure proper functioning of National Company Law Tribunal in view of our experience with Company Law Board as I believe and heard from many shareholders. The judgment of the Madras High Court and the Supreme Court in the Appeal on constitution of National Company Law Tribunal is really laudable; as otherwise, there would have been an irreparable damage to the corporate world. The issue is really challenging for the Ministry of Corporate Affairs and it will be interesting to follow as to  when the Companies Bill is introduced, changes are made to the bill subsequent to the judgment of Supreme Court and the finally the functioning of the National Company Law Tribunal.

Note: The views expressed are my personal and I have no intention to insult any profession or institution.

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Imagine a six-figure income and some familiar figures may come to mind. Doctors, lawyers, and top-level executives are no strangers to incomes above $100,000, but you might not realize the pay scale possible for those who make a living transcribing court cases.

Not every court reporter earns six figures–average earnings for the career hover around half that–but the most experienced and skilled can, and in some cases do.

A Day in the Life of a Court Reporter
Court reporters capture live speech from trials and pre-trial depositions, recording it in text form for records purposes. Instead of using a traditional keyboard or computer, court reporters use a stenotype machine. Pressing multiple keys on the machine allows the reporter to record different sounds, words, or phrases. Audio reporting and voice writing are also popular methods, and court reporters often try all three before deciding on the method that works best for them.

Accuracy on a tight budget is an essential skill, and judges and lawyers value court reporters for the documents they create. Your day as a court reporter may start with a morning pre-trial deposition, a few hours off to check your transcript, and one or two trials. If you don’t have a trial scheduled, you may attend to your freelance work transcribing press conferences or television programs, sending them in real-time to viewers.

Freelancing as a Court Reporter
How can a court reporter earn six figures? By freelancing in the court system they serve. Freelance work is not required, but a skilled court reporter taking on the extra work can earn money by-the-page for as long as they need it. CNN Money reports that experienced court reporters may earn up to $88,171 in the New York State Supreme Court, with freelancing work perhaps pushing that figure over the $100,000 mark. Freelancing is one way to set your own income, in that sense, though the nature of the work means a reliable salary is not always guaranteed.

Typical Court Reporter Salaries
Check out the mean annual salaries (not including freelance work) for industries with the highest level of employment for court reporters, as reported by the Bureau of Labor Statistics (BLS):

• Business support services: $44,260
• Local government: $49,950
• Employment services: $43,680
• Federal executive branch: $50,380

Training cannot guarantee a certain salary, and you may earn more depending on your skills and education. Depending on your desire to freelance, it may be more important to learn a range of stenographic techniques and equipment.

Court Reporter Career Training Programs
Education is essential for anyone hoping to work as a court reporter. Students typically aim to capture 225 words per minute–a requirement for Federal employment–using special stenographic equipment. The BLS reports that training may include on-the-job instruction and averages at 33 months. Formal training is popular at the associate’s degree level.

Employment for court reporters is expected to grow 25 percent in the coming years, adding an estimated 4,700 new jobs through 2016. Consider a career in court reporting as a growing job that can reward your attention to detail.

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 INHERENT POWERS OF HIGH COURTS (Quashing of     F.I.R)

 

 

 

INTRODUCTION:

 

Inherent powers of the High Courts are the powers which are not additional to the powers conferred upon the High Courts. The most important aspect of such power is the Quashing of FIR by the court .

 

Section 482 CrPC talks about the inherent powers of the high courts. This section reproduces section 561-A of the code of 1898 without any change. It does not confer any new powers on the high courts but saves such inherent powers which the court possessed before the enactment of CrPC.

 

Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases. The section was added by the Code of Criminal Procedure(amendment) Act,1923 , as the high courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The section is a sort of reminder to the high courts that they are not merely courts n law, but also courts of justice and possess inherent powers to remove injustice. The inherent power in the high is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial . They are  necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The expression ‘ends of justice’ is not used to comprise within it any vague or nebulous concept of justice, nor even justice in philosophical sense , but justice according to law, statute law and the common law. Inherent powers are in the nature of etxtraordinary powers available only where no  express power is available to the high courts to do a particular thing , and where the express power does not negativate the existence of such inherent power. The jurisdiction under section 482 is discretionary , the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

 

 

 

OBJECTIVE:

 

 

To highlight the use of inherent powers by the high courts  under the Code of Criminal Procedure especially  for quashing of FIR or criminal complaints  before the filing of a chargesheet.

 

 

SCOPE :

 

The scope of the report is limited only to the quashing of FIR and highlighting some judgements delivered by the Supreme Court and the high courts in this context.

 

As per the scope of this section is concerned , it has a very wide scope. The inherent powers are only with the high courts and no other court can exercise these powers. The high courts are bound to exercise such powers whenever there is injustice done by the court below. Some of the inherent powers of the high courts are:

 

a)     quashing of  FIR

b)    quashing of complaint

c)     quashing of any order passed by the court below in revision etc.

 

In this report we are mainly concerned with quashing of FIR and criminal complaints.

 

 

 

 

 

MAIN TEXT:

 

 

1.     Section 482 :

 

It reads as follows :

 

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

 

The section was added by the Code of Criminal Procedure (Amendment) Act of 1923. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely:

 

1.     to give effect to an order under CrPC,

to prevent abuse of the process of the court,
to secure the ends of justice.

 

The jurisdiction of the high court is confined to the courts subordinate to it in the state for which the high court has been constituted. An application under section 482 cannot be entertained by any court other than the high court. The inherent jurisdiction possessed by the high court under this section is not confined to cases pending before it, but extends to all the cases which may come to its notice whether in appeal revision or otherwise. Inherent powers under section 482 can be invoked only in the event when there is no other remedy open to the aggrieved party.

 

 

2. INHERENT JURISDICTION VESTED IN THE HIGH COURTS :

 

The inherent jurisdiction of the high court preserved under this section is vested in it by law within the meaning of article 21 of the constitution . The procedure for invoking the inherent powers may be regulated by rules which may have been or be framed by the high courts. The power to make such rules is conferred on the high court by the constitution. Where the rules were previously framed , they continue in force by virtue of article 372 of the constitution.

 

 

3. HIGH COURT NOT TO FUNCTION AS A COURT OF APPEAL OR REVISION :

 

While exercising powers under section 482 the court does not function as a court of appeal or revision. It also would not enter into the appreciation of evidence . Inherent powers are to be very sparingly exercised for compelling reasons, when where there has been any abuse of process of law or any glaring injustice.

 

 

4. NO INHERENT POWERS OF SUBORDINATE COURTS : 

 

Under CrPC , inherent powers are vested only in the high courtsand the courts subordinate to the high courts have no inherent powers. In bindeshwari Prasad singh  v  kali singh , the supreme court held that a magistrate has no inherent power to restore a complaint dismissed in default.

 

 

5. INHERENT POWER NOT TO BE INVOKED IN MATTERS COVERED BY SPECIFIC PROVISIONS :   

 

The inherent power of the high court under this section cannot be invoked in regard to matters which are directly covered by specific provisions of CrPC. Eg. the petitioner who has a remedy under s. 397 cannot be permitted to invoke s 482. The powers of high court under this section are indeed very wide . However, they can only be exercised in cases where there is such a palpable want of jurisdiction in the proceedings initiated, as would result in unnecessary harassment and oppression to the accused concerned. The section cannot be invoked to supplant the normal processes and inquiries by a tribunal prescribed in CrPC.

 

 

6. WHETHER A PERSON WHO HAS NOT APPLIED UNDER SECTION 482 CAN BE GIVEN RELIEF :

 

When the matter comes before the high court , it can exercise its power under s.482 irrespective of the consideration as to which of the parties has come before it. The high court can give relief even to the other accused who did not file any petition under this section.

 

When the matter is pending before the supreme court and that court has ordered the session judge to issue non bailable warrant for the arrest of the petitioners, the high court cannot exercise its power under this section.

 

 

 

7. WHEN ALTERNATIVE REMEDY AVAILABLE
:

 

If an effective alternative remedy is available , the high court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy. The powers of this section are not usually invoked when there is another remedy available.

 

 

8. APPRECIATION OF EVIDENCE :

 

In a proceeding under section 482, the high court will not enter into any finding of facts , particularly when the matter has been concluded by concurrent finding of facts of two courts below.

 

When the high court quashed a criminal complaint on consideration of certain documents produced by the petitioner , it was held by the supreme court that the order of the high court was illegal, as only when the high court comes to a conclusion that no prima facie case is made out , based on the complaint and the documents accompanying it, that the court could quash the complaint.

 

 

 

VIEW OF THE SUPREME COURT:

 

 

The Supreme Court has recently ruled that the High Courts can quash an FIR against a person if it did not prima facie disclose any offence.

 

A two judge bench said that ordinarily criminal proceedings instituted against an accused must be tried and taken to logical conclusions under the Criminal Procedure Code (Cr.P.C.) and the High Courts should be reluctant to interfere into the proceedings at an interlocutory stage.

“However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed”, the bench said. Where the allegations in the FIR or the complaint or the accompanying documents taken at their face value, do not constitute the offence alleged, the person proceeded against in such a frivolous criminal litigation has to be saved, ruled the bench.

 

 

In the landmark case State of Haryana v. Bhajan Lal ( 1992 Supp.(1) SCC 335) :

 

A two-judge bench of the Supreme Court of India considered in detail the provisions of section 482 and the power of the high court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by high courts in exercise of their inherent powers to quash a criminal complaint:

 

1. The criminal complaint can be quashed when allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, prima facie constitute any offence or make out a case against the accused person.

2. The criminal complaint can be quashed when allegations made in the complaint are so absurd and inherently improbable that on the basis of which no prudent person can ever reach a conclusion that there are sufficient grounds for continuing the proceedings against the accused person.

 

3. The criminal complaint can be quashed when the allegations made in the

complaint and evidence collected in support of the complaint does not disclose the commission of any offence against the accused person.

 

4. The criminal complaint can be quashed when the complaint is manifestly attended with malafide or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused person and with a view to spite him due to private and personal grudge.

 

5. The criminal complaint can be quashed when there is an express legal bar under any of the provisions of the CrPC or any other legislation (under which a criminal proceeding is instituted) to the institution and continuance of criminal complaint.

 

Thus, if the high court is convinced that the criminal complaint does not disclose a cognizable offence and the continuation of an investigation is not based on sound foundations and would amount to an abuse of power of the police necessitating interference to secure the ends of justice, the high court will exercise its inherent power to quash the proceedings.

 

 

In Pepsi Foods Ltd. v. Special Judicial Magistrate  (AIR 1998 SC 128) :

 

the Supreme Court of India observed that:

 

“Though the magistrate can discharge the accused at any stage of the trial if he considers the charges to be groundless, this does not mean that the accused cannot approach the High Court under section 482 to have the complaint quashed if the complaint does disclose the commission of a cognizable offence against the accused person. In this case the Supreme Court held that the order of the High Court  refusing to quash the complaint on the ground that alternate remedy was available under the CrPC to the accused person was not proper.”

 

 

 

However it has been held by the Supreme Court of India in Om Prakash Singh v. State of UP  (2004 CrLJ 3567) :

 

That ‘if a complaint discloses the commission of a cognizable offence, it would not be a sound exercise of discretion to quash the criminal complaint’.

 

 

 

In Indian Oil Corporation v. NEPC India Ltd. and Others (2006) 6 SCC 736 ) :

 

A petition under section 482 was filed to quash two criminal complaints. The High Court by common judgments allowed the petition and quashed the two complaints. The order was challenged in appeal to Supreme Court of India.

 

While deciding the appeal, the Supreme Court of India laid down following principles:

 

1. The high courts should not exercise their inherent powers to stifle or scuttle a legitimate prosecution. The power to quash criminal complaints should be used  sparingly and with abundant caution.

 

2. The criminal complaint is not required to verbatim reproduce the legal

ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed.

Quashing of the complaint is warranted only where the complaint is bereft of

even the basic facts which are absolutely necessary for making out the alleged offence.

 

 

3. It was held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c
) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence.

 

As the nature and scope of civil proceedings are different from a criminal

proceeding, the mere fact that the complaint relates to a commercial

transaction or breach of contract, for which a civil remedy is available or has

been availed, is not by itself a ground to quash the criminal proceedings. The

test is whether the allegations in the complaint disclose a criminal offence or

not.

 

 

 

View of the High Courts :

 

 

In  Pasupati Banerji v. King (AIR 1950 cal 97)  :

 

The court has observed that

 

“In order to attract the provisions of section 182 of the IPC, it must be established that the person gave information to a public servant which he knew or believed to be false and that he intended thereby to cause the public servant to use his lawful power to the injury or annoyance of any person. It is not sufficient that the person had reasons to believe it was false or that he did not believe it to be true; what is necessary that the person must have positive knowledge or belief that it was false.”

 

 

In state of maharashtra v mohd yusuf noormohammad and others [1990 CrLJ 2106 (bom)] :

 

The high court held that , in the interest of peace, the right of  an individual to prosecute his complaint may be curtailed by the high court under section 482.

 

 

 

CONCLUSION :

 

So as per the following report we have seen that how the high courts uses its inherent powers and how important it is for the high courts to use these powers. Section 482 has a very wide scope and its really important for the courts to use it properly and wisely. Many a times it has been observed that when there is an issue of money for eg. Any money matter then the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the high courts to quash such complaints as it leads to the abuse of the process of the lower courts.

 

Thus section 482 is very important for acquiring proper justice and to stop the public from filing fictitious complaints just to fulfill there personal grudges.

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 INHERENT POWERS OF HIGH COURTS (Quashing of     F.I.R)

 

 

 

INTRODUCTION:

 

Inherent powers of the High Courts are the powers which are not additional to the powers conferred upon the High Courts. The most important aspect of such power is the Quashing of FIR by the court .

 

Section 482 CrPC talks about the inherent powers of the high courts. This section reproduces section 561-A of the code of 1898 without any change. It does not confer any new powers on the high courts but saves such inherent powers which the court possessed before the enactment of CrPC.

 

Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases. The section was added by the Code of Criminal Procedure(amendment) Act,1923 , as the high courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The section is a sort of reminder to the high courts that they are not merely courts n law, but also courts of justice and possess inherent powers to remove injustice. The inherent power in the high is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial . They are  necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The expression ‘ends of justice’ is not used to comprise within it any vague or nebulous concept of justice, nor even justice in philosophical sense , but justice according to law, statute law and the common law. Inherent powers are in the nature of etxtraordinary powers available only where no  express power is available to the high courts to do a particular thing , and where the express power does not negativate the existence of such inherent power. The jurisdiction under section 482 is discretionary , the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

 

 

 

OBJECTIVE:

 

 

To highlight the use of inherent powers by the high courts  under the Code of Criminal Procedure especially  for quashing of FIR or criminal complaints  before the filing of a chargesheet.

 

 

SCOPE :

 

The scope of the report is limited only to the quashing of FIR and highlighting some judgements delivered by the Supreme Court and the high courts in this context.

 

As per the scope of this section is concerned , it has a very wide scope. The inherent powers are only with the high courts and no other court can exercise these powers. The high courts are bound to exercise such powers whenever there is injustice done by the court below. Some of the inherent powers of the high courts are:

 

a)     quashing of  FIR

b)    quashing of complaint

c)     quashing of any order passed by the court below in revision etc.

 

In this report we are mainly concerned with quashing of FIR and criminal complaints.

 

 

 

 

 

MAIN TEXT:

 

 

1.     Section 482 :

 

It reads as follows :

 

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

 

The section was added by the Code of Criminal Procedure (Amendment) Act of 1923. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely:

 

1.     to give effect to an order under CrPC,

to prevent abuse of the process of the court,
to secure the ends of justice.

 

The jurisdiction of the high court is confined to the courts subordinate to it in the state for which the high court has been constituted. An application under section 482 cannot be entertained by any court other than the high court. The inherent jurisdiction possessed by the high court under this section is not confined to cases pending before it, but extends to all the cases which may come to its notice whether in appeal revision or otherwise. Inherent powers under section 482 can be invoked only in the event when there is no other remedy open to the aggrieved party.

 

 

2. INHERENT JURISDICTION VESTED IN THE HIGH COURTS :

 

The inherent jurisdiction of the high court preserved under this section is vested in it by law within the meaning of article 21 of the constitution . The procedure for invoking the inherent powers may be regulated by rules which may have been or be framed by the high courts. The power to make such rules is conferred on the high court by the constitution. Where the rules were previously framed , they continue in force by virtue of article 372 of the constitution.

 

 

3. HIGH COURT NOT TO FUNCTION AS A COURT OF APPEAL OR REVISION :

 

While exercising powers under section 482 the court does not function as a court of appeal or revision. It also would not enter into the appreciation of evidence . Inherent powers are to be very sparingly exercised for compelling reasons, when where there has been any abuse of process of law or any glaring injustice.

 

 

4. NO INHERENT POWERS OF SUBORDINATE COURTS : 

 

Under CrPC , inherent powers are vested only in the high courtsand the courts subordinate to the high courts have no inherent powers. In bindeshwari Prasad singh  v  kali singh , the supreme court held that a magistrate has no inherent power to restore a complaint dismissed in default.

 

 

5. INHERENT POWER NOT TO BE INVOKED IN MATTERS COVERED BY SPECIFIC PROVISIONS :   

 

The inherent power of the high court under this section cannot be invoked in regard to matters which are directly covered by specific provisions of CrPC. Eg. the petitioner who has a remedy under s. 397 cannot be permitted to invoke s 482. The powers of high court under this section are indeed very wide . However, they can only be exercised in cases where there is such a palpable want of jurisdiction in the proceedings initiated, as would result in unnecessary harassment and oppression to the accused concerned. The section cannot be invoked to supplant the normal processes and inquiries by a tribunal prescribed in CrPC.

 

 

6. WHETHER A PERSON WHO HAS NOT APPLIED UNDER SECTION 482 CAN BE GIVEN RELIEF :

 

When the matter comes before the high court , it can exercise its power under s.482 irrespective of the consideration as to which of the parties has come before it. The high court can give relief even to the other accused who did not file any petition under this section.

 

When the matter is pending before the supreme court and that court has ordered the session judge to issue non bailable warrant for the arrest of the petitioners, the high court cannot exercise its power under this section.

 

 

 

7. WHEN ALTERNATIVE REMEDY AVAILABLE
:

 

If an effective alternative remedy is available , the high court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy. The powers of this section are not usually invoked when there is another remedy available.

 

 

8. APPRECIATION OF EVIDENCE :

 

In a proceeding under section 482, the high court will not enter into any finding of facts , particularly when the matter has been concluded by concurrent finding of facts of two courts below.

 

When the high court quashed a criminal complaint on consideration of certain documents produced by the petitioner , it was held by the supreme court that the order of the high court was illegal, as only when the high court comes to a conclusion that no prima facie case is made out , based on the complaint and the documents accompanying it, that the court could quash the complaint.

 

 

 

VIEW OF THE SUPREME COURT:

 

 

The Supreme Court has recently ruled that the High Courts can quash an FIR against a person if it did not prima facie disclose any offence.

 

A two judge bench said that ordinarily criminal proceedings instituted against an accused must be tried and taken to logical conclusions under the Criminal Procedure Code (Cr.P.C.) and the High Courts should be reluctant to interfere into the proceedings at an interlocutory stage.

“However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed”, the bench said. Where the allegations in the FIR or the complaint or the accompanying documents taken at their face value, do not constitute the offence alleged, the person proceeded against in such a frivolous criminal litigation has to be saved, ruled the bench.

 

 

In the landmark case State of Haryana v. Bhajan Lal ( 1992 Supp.(1) SCC 335) :

 

A two-judge bench of the Supreme Court of India considered in detail the provisions of section 482 and the power of the high court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by high courts in exercise of their inherent powers to quash a criminal complaint:

 

1. The criminal complaint can be quashed when allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, prima facie constitute any offence or make out a case against the accused person.

2. The criminal complaint can be quashed when allegations made in the complaint are so absurd and inherently improbable that on the basis of which no prudent person can ever reach a conclusion that there are sufficient grounds for continuing the proceedings against the accused person.

 

3. The criminal complaint can be quashed when the allegations made in the

complaint and evidence collected in support of the complaint does not disclose the commission of any offence against the accused person.

 

4. The criminal complaint can be quashed when the complaint is manifestly attended with malafide or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused person and with a view to spite him due to private and personal grudge.

 

5. The criminal complaint can be quashed when there is an express legal bar under any of the provisions of the CrPC or any other legislation (under which a criminal proceeding is instituted) to the institution and continuance of criminal complaint.

 

Thus, if the high court is convinced that the criminal complaint does not disclose a cognizable offence and the continuation of an investigation is not based on sound foundations and would amount to an abuse of power of the police necessitating interference to secure the ends of justice, the high court will exercise its inherent power to quash the proceedings.

 

 

In Pepsi Foods Ltd. v. Special Judicial Magistrate  (AIR 1998 SC 128) :

 

the Supreme Court of India observed that:

 

“Though the magistrate can discharge the accused at any stage of the trial if he considers the charges to be groundless, this does not mean that the accused cannot approach the High Court under section 482 to have the complaint quashed if the complaint does disclose the commission of a cognizable offence against the accused person. In this case the Supreme Court held that the order of the High Court  refusing to quash the complaint on the ground that alternate remedy was available under the CrPC to the accused person was not proper.”

 

 

 

However it has been held by the Supreme Court of India in Om Prakash Singh v. State of UP  (2004 CrLJ 3567) :

 

That ‘if a complaint discloses the commission of a cognizable offence, it would not be a sound exercise of discretion to quash the criminal complaint’.

 

 

 

In Indian Oil Corporation v. NEPC India Ltd. and Others (2006) 6 SCC 736 ) :

 

A petition under section 482 was filed to quash two criminal complaints. The High Court by common judgments allowed the petition and quashed the two complaints. The order was challenged in appeal to Supreme Court of India.

 

While deciding the appeal, the Supreme Court of India laid down following principles:

 

1. The high courts should not exercise their inherent powers to stifle or scuttle a legitimate prosecution. The power to quash criminal complaints should be used  sparingly and with abundant caution.

 

2. The criminal complaint is not required to verbatim reproduce the legal

ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed.

Quashing of the complaint is warranted only where the complaint is bereft of

even the basic facts which are absolutely necessary for making out the alleged offence.

 

 

3. It was held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c
) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence.

 

As the nature and scope of civil proceedings are different from a criminal

proceeding, the mere fact that the complaint relates to a commercial

transaction or breach of contract, for which a civil remedy is available or has

been availed, is not by itself a ground to quash the criminal proceedings. The

test is whether the allegations in the complaint disclose a criminal offence or

not.

 

 

 

View of the High Courts :

 

 

In  Pasupati Banerji v. King (AIR 1950 cal 97)  :

 

The court has observed that

 

“In order to attract the provisions of section 182 of the IPC, it must be established that the person gave information to a public servant which he knew or believed to be false and that he intended thereby to cause the public servant to use his lawful power to the injury or annoyance of any person. It is not sufficient that the person had reasons to believe it was false or that he did not believe it to be true; what is necessary that the person must have positive knowledge or belief that it was false.”

 

 

In state of maharashtra v mohd yusuf noormohammad and others [1990 CrLJ 2106 (bom)] :

 

The high court held that , in the interest of peace, the right of  an individual to prosecute his complaint may be curtailed by the high court under section 482.

 

 

 

CONCLUSION :

 

So as per the following report we have seen that how the high courts uses its inherent powers and how important it is for the high courts to use these powers. Section 482 has a very wide scope and its really important for the courts to use it properly and wisely. Many a times it has been observed that when there is an issue of money for eg. Any money matter then the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the high courts to quash such complaints as it leads to the abuse of the process of the lower courts.

 

Thus section 482 is very important for acquiring proper justice and to stop the public from filing fictitious complaints just to fulfill there personal grudges.

The Attitude of Ghanaian Courts towards the Enforcement of Socio-economic Rights of the Citizenry: A Critical Review.

Introduction

Ghana has a chequered past; one interspersed with both civilian and military governments since its independence from Great Britain in 1957. The concept of human rights enshrinement in the Constitution was not foreign to the Ghanaian setup. Prior to the adoption of the 1992 Republican Constitution human rights were  provided in the 1969 and 1979 Constitutions of Ghana. It was provided to a limited extent in Chapter Six of the 1979 constitution of Ghana. During the deliberations leading to the adoption of the 1992 Constitution, the Committee of Experts noted that even though there has been compartmentalization of human rights into civil and political right; and economic, social and cultural rights, they felt that whatever the material scope of the rights, all persons were entitled to them. (Paragraph 137 of  Report of Committee of Experts on Proposals for Draft Constitution of Ghana).

 

 The 1992 Constitution of Ghana has its Bill of Rights being Chapter Five of the Constitution. A reading of the constitution evinces a number of civil and political rights as well as socio- economic rights in the Bill of Rights. The socio-economic rights include: protection from deprivation of property (Article 20), property rights of spouses (Article 22), right to work under safe, satisfactory and healthy conditions and right to form trade unions (Article 24), right to educational opportunities and facilities (Article 25), women’s rights (Article 27),children’s rights (Article 28), rights of the disabled (Article 29). Also, a number of these socio-economic rights such as the right to a healthy environment (Art. 36(9)); the right to work; the right to good health care and the right to education are provided for under Chapter Six of the 1992 Constitution. Yet still a number of socio-economic rights like the right to social security and adequate standards of living are not provided for at all under the present constitution.

The Directive Principles of State Policy (DPSP) are to serve as guidelines in the application and interpretation of the constitution (Article 34(1) of the 1992 Constitution of Ghana).  Due to this, it has been suggested that the directive principles are not justiciable. However, a provision in the constitution stipulates that the fundamental human rights mentioned in Chapter Five are not to be regarded as excluding others not specifically mentioned (Article 33(5)). In other words, Chapter Five does not exhaust the socio-economic rights.

 

The question then is, whether the socio-economic rights which are not mentioned in chapter Five are rights which can be enforced by the courts? The High court has been charged with the duty of enforcement of the fundamental rights with right of appeal to the Court of Appeal and then, the Supreme Court. A number of cases involving socio-economic rights under chapter Six of the constitution have come before the courts for interpretation.

 

1.     The Legal Arguments Emanating from the Courts

The Ghanaian decisions to be examined in this respect are: the New Patriotic Party (NPP) v Attorney-General (the 31st December case, 1993-94, 2 GLR 35- 192) ; New Patriotic Party (NPP) v Attorney-General (CIBA case 1996-97, SCGLR 729-803) and Ghana Lotto Operators Association & 6 Ors. v National Lottery Authority (Lotto case, 23rd July 2008, unreported)).

 

In the 31st December case, an action was brought by the plaintiff, a registered political party in the supreme court for a declaration that the celebration of the 31st December as a statutory public holiday was inconsistent with articles 3, 35(1) and 41(b) of the Constitution. Amongst the issues for determination was whether the directive principles of state policy were justiciable. This was because the declaration sought was in respect of two provisions under chapter Six of the constitution.

Adade JSC, in giving the lead judgment of the court stated that “The Directive Principles of State Policy contained in the 1992 Constitution,  Chapter Six were justiciable because the Constitution as a whole was a justiciable document and accordingly, if any part was non-justiciable, the Constitution itself had to indicate it”. But no provision in the constitution had indicated that chapter Six was not justiciable. Yet, the evidence to establish the non-justiciability of the principles had to be internal to the constitution otherwise it would be in conflict with it and thus be void and inadmissible. He stated further that “although in some quarters it had been said that the use of the phrase ‘shall guide’ in article 34(1) of the 1992 Constitution implied that the directive principles were not meant to be justiciable, the argument was weak and unimpressive and that though, all laws were for guidance, they had not on that account, be said to be non-justiciable”. 

It must be said that though this was not a unanimous decision of the house either some members of the house inferring the non- justiciability of the directive principles from the Committee of Experts and Consultative Assembly reports, it must be said that the deliberations leading up to its adoption in the 1979 Constitution of Ghana does not support such a position nor does the express language in Article 34(1) suggest same. The majority decision is the one supported as such a decision can be said to be the natural deduction and conclusion to be inferred from the preamble and Article 1 of the constitution that the will of the people shall be supreme and that the fundamental human rights and freedoms shall be protected and preserved.

The CIBA case was concerned with a declaration sought under article 2(1) of the 1992 constitution  by the NPP to the effect that the Council of Indigenous Business Association (CIBA) law was inconsistent and thereby contravened Articles 21 (1) (e), 35(1) and 37(2)(a) and (3) of the 1992 constitution of Ghana. The defendant raised a preliminary objection to the suit on the ground that the articles sought to be relied on by the plaintiff fell under chapter Six of the 1992 Constitution titled Directive Principles of State Policy (DPSP) and were thus not justiciable. In ruling on the preliminary objection to the action, the majority of the house held that the Directive Principles of State Policy had the effect of providing goals for legislative programmes and a guide for judicial interpretation but were not of and by themselves legally enforceable by any court.

According to Bamford Addo JSC, as a mouth piece of the unanimous majority, the Directive Principles of State Policy were of and in themselves, not justiciable. She made reference to Par. 95-97 of the Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana especially par.96 which stated that the principles should not of and by themselves be legally enforceable by any court. She however qualified this statement to the effect that they could be justiciable when read in conjunction with other enforceable provisions of the constitution by reason of the fact that the courts are mandated to apply them, they become justiciable. Also, that any provision in chapter Six that could be interpreted to mean a guaranteed fundamental right also became justiciable. She concluded by stating that the justiciability of any provision under Chapter Six of the constitution would rest on the peculiar facts of the case presented before the court. The position stated by Bamford Addo remained the position as regards the directive principles of state policy until a new position was stated by the Supreme Court of Ghana in 2008 in Lotto case.

The Supreme Court decision in the Lotto case can be said to be the most recent and hence the current position of the law on the Directive Principles of State Policy. In this case, a reference was made to the Supreme Court of Ghana for a determination as to whether The National Lotto Act, 2006, Act 722 violated Articles 33(5), 35(1) and 36(2) of the 1992 constitution of Ghana.

 The background to the case concerned the issue of a writ by some private lotto operators in Ghana by virtue of newspaper announcements by the defendant established under the National Lotto Act, 2006 to the effect that no person other than the National Lotto Authority  from operating any form of lottery in Ghana. The plaintiffs who were aggrieved sought a declaration inter alia that, Act 722 violated the afore-mentioned provisions.

Date- Bah JSC, giving the judgment of the court made some very interesting pronouncements on the justiciability of the Directive Principles of State Policy. It is this aspect of the case that shall be subject to our perusal. After establishing the fact that the plaintiffs had failed to make a case concerning the first two articles, he stated that the most relevant issue to be determined was whether the Act violated Article 36(2) of the constitution. He examined this article by stating that an issue was justiciable if it was capable of being settled by a court. For him all the provisions in the constitution were justiciable because it contained the most important rule on political governance. 

In so stating, he reiterated the view earlier expressed by Adade JSC in the 31st December Case that all the provisions in the constitution were justiciable unless the constitution categorically stated otherwise. He distinguished the restraint on Indian judges to adjudicate on the Directive principles by reference Article 37 of the Indian Constitution which unequivocally stated that the Provisions in Part IV therein was unenforceable by any court as against a non- express exclusion in the Ghanaian constitution. After examining the Committee of Experts report on the adoption of the constitution of Ghana, he came to the conclusion that there was no language in the constitution suggestive that the Directive principles are not of and by themselves legally enforceable by any court.  He stated that even if the original intention of the Committee may have being to make the principles unenforceable that did not appear in the constitution as such.

He continued that as the problems of the nation changed, the interpretations of the constitutions by the judiciary also had to change to reflect modern practices. A statement he made which is at the heart of this article bears repeating. He stated that the rights set out in chapter Six are predominantly the economic, social and cultural rights which by international and domestic practice are becoming just as fundamental as the rights in chapter Five.

The enforceability of these economic, social and cultural rights was a legitimate purpose for the court to seek to achieve through appropriate purposive interpretation and so any interpretation to Article 34 of the constitution should take into account the purpose of expanding the range of enforceable human rights in Ghana. He emphasized the need for the elaboration and enforcement of economic, social and cultural rights in light of the history, culture and legal system as a need of the present times and for the test of Article 34 if it could help meet this need, then the court should fulfil it.

He added that a presumption of justiciability in respect of Chapter Six of the constitution would strengthen the legal status of socio- economic and cultural rights in the Ghanaian jurisdiction and that any provision that does not lend itself to enforcement by its nature would rebut such a presumption as this would go a long way to deepen our democracy. Any ambiguity in article 34 should be resolved in favour of enforceability so as to strengthen the enforcement of fundamental human rights as a core value of the current legal and constitutional system.

Date-Bah however cautioned that the enforceability of these economic, social and cultural rights did not mean that the implementation in respect of it would be the same as the civil and political rights embodied in Chapter Five. The court thus needed to be flexible and imaginative in determining how provisions under the Chapter Six would be enforced.

Aside the courts, a body clothed with competence to hear complaints on the fundamental human rights is the Commission on Human Rights and Administrative Justice (CHRAJ) hereinafter known as CHRAJ. CHRAJ which is an elaboration of the Ombudsman in the 1979 constitution has now per Article 218(a) and section 7(1) (a) of the CHRAJ Act the mandate to investigate complaints of violations of fundamental rights and freedoms. In line with this mandate, CHRAJ has given a number of decisions on the fundamental human rights specifically the socio-economic rights. However it has not given a decision in respect of the justiciability of socio-economic rights.

 

2.     Conclusion

Having recognized that the CIBA case was a departure from the 31st December case and that there was a conflict between two previous decisions, of the supreme court and thus the court was free to choose between the two or formulate a different rule, the court still went ahead to choose a presumption of justiciability of chapter Six of the 1992 constitution. This is probably due to the fact that the court recognized the increasing trend in various jurisdictions to this position as a need of our time and hence important that it does likewise.

After a reading of the various cases, it can be boldly stated that the Ghanaian position on the Directive Principles and thus, the socio- economic rights has now been established by the Lotto case and has been resolved in favour of the justiciability of the socio- economic rights. Ghana has therefore joined hands with other jurisdictions to safeguard the protection of the socio- economic rights, thus changing the attitude of the courts in that direction.