Wednesday, April 25, 2007

CJI's Order for Early Hearing in Mandal-II

I write in my personal capacity to say I find it unusual that the learned Chief Justice of India (for whose sagacity and experience I have great respect) intervened in this matter after another bench of the Court expressly declined to do so. The Chief Justice's intervention raises several juridictional and substantive issues, which I hope our blogging community can interrogate. I agree that it is the Chief Justice's prerogative to assign matters among different benches. But once the matter had been assigned to the Pasayat-Panta bench, the Chief Justice ought to deferred to that bench to handle the matter unless there were compelling reasons (which should have been stated) for intervening in the matter. After all, Justice Pasayat (whose judgments I have followed with great interest for many years) is an experienced and sound judge whose integrity has not been questioned. By contradicting the Pasayat-Panta bench, the Chief Justice's ruling could be interpreted (even if it was not intended that way) as having overruled the former's order issued hardly a day earlier.

I understand the predicament of the Attorney General and the Solicitor General who were caught in a bind in a very important case. But the proper course of action would have been for the government to seek a review of the order denying a vacation of the stay (if a review against such an order were permissible under the Supreme Court's rules) rather than appearing to indulge in what could be unfortunately perceived as forum shopping among different benches of our Court. I invite comments on this matter from my other colleagues and our regular readers.


Arun Thiruvengadam said...

Dear Vikram,

You raise interesting issues (and they are extremely serious ones), and I'm sure this is something that a lot of people, including the CJI, have focused upon.

My sense, however, is that the CJI did the right thing to intervene. Given the volatile nature of the issue, and the suggestions being posed (including by V. Venkatesan on our blog), I think the CJI's action has defused a potential crisis. If he had not done so, and Parliament had tried to take legislative action to overturn the Pasayat bench's orders, the situation would have been far worse, and the long heralded clash between Parliament and the Judiciary would have come about. While Mr. Venkatesan is right in noting that legislative overruling of the basis of judicial rulings is recognised, it is generally recommended only in exceptional situations, and it almost always extracts costs in terms of the healthy and mutually reinforcing functioning of democratic institutions. If such actions came about on this issue, the debate would have been particularly volatile and problematic, given the charged nature of issues involved.

In the past, in several matters, the Supreme Court has expedited hearings to resolve issues quickly. This happened especially in economic issues, where delay would have financial implications. To take one instance, in the Delhi Science Forum case, where the validity of the licensing procedure to privatise Indian Telecom was under challenge, the Court 'fast-tracked' hearings over two days, and pronounced its final verdict very quickly. As I have followed this case, I couldn't help wondering why Justice Pasayat didn't 'fast-track' hearings to decide the issue finally.

You have to remember that the Govt. has been pursuing this for well over a year now. It is the petitioner's counsel who now say that they can't get their pleadings in order soon enough for an expedited hearing. Well, then thats their problem. The Govt has passed a law and has also allocated funds to various educational institutions to aid the implementation of the new law. It seems ready for final arguments, and the petitioners and the Court, who have caused the legislative policy to be stopped, cannot stall that unless clear reasons are provided. If the petitioners were ready to move the case, they should be ready to make their final arguments right away.

Like V. Venkatesan, I found the bench's observation about waiting for 57 years offensive. It is not for the judiciary to set time limits for policy decisions - it can only assess whether they are constitutionally valid or not. Perhaps the judiciary, given its vast interventions in several areas of administration, has lost sight of that basic institutional reality.

What the Pasayat bench would have been justified in doing was to hold finally that the Act was unconstitutional and strike it down, whereupon the Govt could have tried to get its decision reviewed or overturned by a higher bench. The effect of yesterday's order is that no other institution can do anything until late August. What gives the Court such a right to set time limits to govtl policies?

I am still considering the merits of the actual issues raised in the Thakur case, and am not inclined very strongly either for or against the government, but it seems to me that the CJI has acted sagaciously to precipitate a far more serious crisis. You are right to point to the problems raised by this action, but this really should have been considered by the Pasayat Bench. By acting so stubbornly and unpragmatically, they may have left the CJI with no other option.

I suspect the CJI will, to cater to precisely the concerns you raise, involve Justice Pasayat in the Constitution Bench that he sets up for the May 08 hearing.

These are my preliminary thoughts, and I am open to being persuaded that my initial thoughts on this are wrong. Hopefully, others will also intervene to comment on this extremely serious issue, which has ominous overtones. To me, the CJI is reflecting exactly the calm sense of moderation at a time like this, when both the legislators and judges more directly involved are adopting very dogmatic positions.

V.Venkatesan said...

The Government's plea to the CJI to advance the hearing of the case has been criticised on two counts:
A. It is against tradition - as it encourages evasion of the Bench which initially heard the matter.
B. It has overruled the Pasayat-Panta Bench's earlier order.
My response to A:
We should understand how the CJI’s intervention has been sought. The Government did not ask Pasayat-Panta Bench for advancing the hearing of the case, but only for vacation of stay, in view of several issues raised in the application. This having been rejected by the Division Bench, the Government had no other option but to approach the CJI for this relief. Did it evade the P-P Bench? The question does not arise, as the Solicitor General who argued the case, did not request early hearing of the case. The rejection of the Govt.’s application for vacation of stay brought forth the acute realities staring at the face of the OBCs, with the case being scheduled for hearing only in August in the regular course. As such, there is no reason to suspect that the Govt. deliberately did not unfold its cards before the P-P Bench.
Now, it can be asked why the SG did not approach the P-P Bench again for early hearing. The SG did not do so precisely because, there were subtle indications that the Bench, by making certain uncalled for utterances like ‘You waited for 56 years, why not wait for one more year”, has clearly revealed where its sympathies lie. An application or request for early hearing to the same Bench would no doubt be rejected, as the Bench did not reveal an open mind to the issue.
There is one crucial thing which the Times of India story has revealed, but The Hindu didn’t. The Attorney-General who argued the case before the CJI, did so under Article 76 (3), which says, in the performance of his duties, the AG shall have right of audience in all courts in the territory of India. Therefore, the CJI could not have refused to hear the AG, even if the so-called tradition required him to ignore the AG’s request.
My response to B:
The CJI has not overruled the P-P Bench’s order at all. The stay has not been vacated. The scheduling of the hearing to August is not the substantive part of the P-P Bench’s order, but only a procedural part. The CJI only modified it, understanding the gravity of the situation as outlined by the AG. Now, the P-P Bench did not reveal an inclination to understand the need to advance the hearing, so the CJI stepped in. Asking the AG to approach the P-P Bench again for this purpose, would have meant abdicating his responsibility and prerogative as the CJI.
In my view, the CJI must do something more. There is a subtle message in the Government’s request to the CJI to advance the hearing. It is that the Government does not believe in the neutrality of the P-P Bench for several reasons. These reasons are more than obvious to any observer who has been closely watching the case. This blog has been citing several instances – improper attribution to the ASG, on the basis of which the Bench reached certain conclusions. With the ASG’s subsequent denial of these in the application (the link has been provided in my earlier post), these very conclusions now seem shaky, and therefore, the stay ought to have been vacated. This blog also showed a crucial factual inaccuracy of wrongly sourcing a comment on OBCs queuing up to claim SEBC status to Indra Sawhney, whereas it was Justice O.Chinnappa Reddy who made that comment in a different context, to draw a different inference in K.C.Vasanth Kumar in 1985. And the offensive remark about waiting for 56 years, why not one more year is the last straw in a series of such observations. There is no discussion in the interim order about the merits of the stay, when the Bench is yet to form even a prima facie view about the petitioner’s main contentions, in their own admission, that is why they have adjourned it to August for a detailed hearing of rival contentions. And there is no consideration of the plenty of reasons advanced by the Government in its written submissions and again in the application why creamy layer could not be excluded from the Act’s purview. All these are more than sufficient to infer that the neutrality of the P-P Bench has come under a cloud, even though the integrity of these two Judges are impeccable, and is not in doubt. A perception of neutrality and objectivity is essential to inspire confidence in the Judiciary, especially when it hears a matter of far-reaching significance. When this perception is eroded, then it is the duty of the head of the Judiciary to step in to restore confidence, and credibility of the institution.
Even to a student of law, it is obvious that a substantial question of law and Constitution has arisen in this case . Article 15(5), the source of the CEI Act, 2006 has been inserted only recently, and is a virgin area, not having been tested earlier. The Government’s plea for referring the case to a Constitution Bench, therefore, must have been accepted by the P-P Bench. But it has not done so immediately, but adjourned even hearing of this question to August. In all fairness, the CJI must exclude both Justices Pasayat and Panta from the new Bench which he would constitute. The CJI should also exclude himself, as he is the recipient of an unsolicited compliment from the Union HRD Minister, Arjun Singh who has reportedly said: “Just and compassionate face of justice will emerge in the CJI’s court.”

ravi srinivas said...

I think Venkatesan is arguing for "committed judiciary" that is
sensitive to the government and
"It is that the Government does not believe in the neutrality of the P-P Bench for several reasons.".
This UPA government indluges in shameless appeasement of OBCs,
muslims.Is it neutral or is it
biased in favor of some.

Even,if, for the sake of argument
we accept Venkatesan's contentions,
was it not a fact that 27% reservation was forced upon the
institutions.Were they ever consulted on this issue.The govt.
decided to give reservations and
then appointed Moily Panel to go into implementation issues.
The political class and persons like Venkatesan may equate mobacracy and majoritarianism with democracy.But there is more to democracy than just numbers. We are
back in the old game.Only difference is Mrs.Gandhi was more
brutal and her cronies lacked some
sophistication. The present political class, particularly the
left may not be so brutal but the
intentions are the same.They want
institutions that would dance to
their tunes.

Srinivasan said...

I believe it is correct on the part of CJI to intervene and set an early date for the trial on such an explosive issue. The GoI has submitted it is ready for final arguments, so should be the petitioner, who brought the case in the first place. Having said that, the court in recent years,
has started to relish playing to the media gallery by posing theatrical, and acerbic remarks and questions. The media has come to print those provocative comments as headlines generating more proclivity on the bench to indulge itself more. Is this a recent phenomenon? May be seasoned court observers can comment with more accuracy. In the US Supreme Court Justice Scalia indulges in this game of provocateurship. I am sure he would envy the publicity given to the Indian justices.

This tendency of the court to express its own 'class' character in contra-distinction to the political 'class', is very unhealthy for a democracy. The political 'class' has all the right to indulge in any sort of rhetoric, the nature of the beast being such. However the courts are the place for dispassionate constructive constitutionalism and establishing the rule of law.

Anonymous said...

Mr. Venkatesan,

From what you write, it appears that the Supreme Court is useless and one might as well disband it. Presumably, the Court is okay so long as it passes the "right decisions" - and what passes for "right" is to be decided by Parliament and of course, you and your cronies.

Can one ask if Parliament has always made the "right" decisions? If "majority" is always right and all that, then you might note that this is the same institution which passed laws like POTA. Some of our Legislative Assemblies have passed laws on "illegal conversion." The point of our institutions is not that they always make the "right" decisions - no institution can guarantee anything like this - but that they are a check on each other. Hopefully egregious errors can be prevented in this way but even such checks are no guarantees, of course.

No institution is above criticism, of course. But with regard to the Supreme Court, I think, one is going too far the moment one starts attributing motives to individual justices. That is my personal opinion. Presumably you disagree. But you are in very good company - the chief minister of Tamil Nadu has been reported saying that "social justice cannot be held hostage by two men." So a supreme court judgment is akin to being "held hostage"? Interesting - and even more interesting is the fact that there is no criticism of this idiotic remark.


V.Venkatesan said...

Dear Mr.Srinivas and Mr.Suresh,
Just a quick response to your comments:
1. I am not in favour of committed judiciary, but I believe it is reasonable to expect a Bench to have an open mind. It can put probing questions to the parties during the hearing, but should not give the impression that it has made up its mind even before hearing starts.
2. I don’t think I equate mobocracy with democracy. POTA cannot be compared with the present law. I am against POTA, even if entire Parliament supported it (which was not the case any way –Parliament was vertically divided on this). My support to A.15(5) is not because it enjoys entire Parliament’s support, but because it is a compensatory discrimination policy.
3. I am not in favour of attributing motives to Judges. I have only interpreted the course of events, and suggested that there is a subtle hint behind the Govt.’s move to approach the CJI that it suspects the P-P Bench’s neutrality. I fully understand that this suggestion is debatable.
4. T.N.CM’s outburst and where I stand. I had felt that bandh was not the correct response to the stay. But I also understand that the court’s orders must be capable of implementation. If there is a large-scale/widespread threat of defiance of court’s directives, then there is a need to introspect. Court’s orders must be willingly obeyed by the Governments and citizens, only then courts earn respect and legitimacy. When this is not the case, there is a need for in-house correctives, which the CJI has taken, to restore judicial credibility and institutional strength.
I hope these clarify my stand.

Anonymous said...

But I also understand that the court’s orders must be capable of implementation. If there is a large-scale/widespread threat of defiance of court’s directives, then there is a need to introspect. Court’s orders must be willingly obeyed by the Governments and citizens, only then courts earn respect and legitimacy.

I disagree. It is not the business of the Court to worry about implementation - that is the job of the executive. The job of the Court is to interpret the Constitution.

Secondly, in countries like the US, the legitimacy of the Court, stems in part from the fact that it has not hesitated to take positions which have been deeply unpopular at least at the time they were issued. The fact that the Court has taken "unpopular" decisions is what gives, I think, people the confidence that this is a truly independent institution. If the Court more-or-less always sides with the executive, then why the need for a Court at all?

None of this indicates that all is well with the judiciary or that the judiciary is above criticism.

Lastly, if you read my post, I was not comparing POTA with anything. I was reacting to what I sensed (perhaps incorrectly, but then Ravi Srinivas reacted similarly) you were saying - that the Court is okay so long as it passes "correct decisions" - that is, decisions Parliament agrees with. POTA was simply an example to show that if the Court makes mistakes, so does the Parliament, or for that matter, any other institution.


Rampal of the Bailey said...

While it is true that the CJI is also the administrative head of the SC and responsible for deciding the composition of benches, 2 judge benches have always exercised their own discretion in deciding whether early hearing should be granted. As pointed out, this may set a dangerous precedent, as the Govt. was free to approach the 2 judge bench for an early hearing. If this failed, they could have filed a review and perhaps a curative petition alleging bias. The CJI's remarks (as reported in the newspapers) to the petitioners junior counsel (Mr. Lahoty) also appear intemperate.

The Govts. belated plea relating to Art. 145(3) is also interesting. Though the contention that Art. 145(3) requires the matter to be heard by a Constitution Bench is meritorious, Art. 145(3) is observed largely in breach. Also the proper course would be to make an application to the 2 judge bench who would then have ordered the matter to be listed before the CJI who would constitute a CB to hear it.

As regards Art. 76(3), one would think that the present AG has, by his conduct and persistent refusal to appear before the SC in crucial matters, waived any constitutional right to audience!