Wednesday, February 28, 2007

National Judicial Council Bill

Abhishek Singhvi, senior advocate in the Supreme Court, and the Congress-I spokesperson, writes a column in Hindustan times, called candid corner. Today's piece, Judges in law, deals with the National Judicial Council Bill, presently being considered by the Parliamentary Standing Committee. In his piece, he justifies the Bill, as it does not require a Constitutional amendment, even though he admits it falls short of expectations in the civil society for a more broad-based body in charge of appointments, transfers, discipline and removal of Judges of Higher Judiciary. A Constitutional amendment, according to him, has certain difficulties. These include a fractured polity, and fragmented consensus, which he says, would make a constitutional amendment an exercise in eternity.
Singhvi's thesis that a broadbased commission with political and other elements external to judicial family as its members would be in conflict with judicial independence is debatable. There are several examples across the world (in vibrant democracies, not banana republics) where such broadbased commissions exist, but is not at odds with independence of judiciary.
But the more important issue is this: If he agrees that the status quo is unsatisfactory, and the brahmastra of impeachment has to be made usable rather than rendered dormant as it has been all these years, then a Constitutional amendment is inevitable. And why he is shying away from a Constitutional amendment? A fractured polity and a fragmented consensus are not the issues which are likely to come in the way of a Constitutional amendment on this issue. Today, there exists a wide political consensus across the spectrum. Look at NJC proposal. This was promised by all the parties in their election manifestos - including the BJP and the Left Parties, and the Congress. There may be differences in degrees about its composition, but the parties are not divided on the question of reforming the existing method of appointing and transferring Judges, legitimised in favour of Judiciary with primacy to the Chief Justice of India. No doubt, the present system of impeaching Judges failed in the case of Justice Ramaswami in 1993 because of lack of political will, as the Congress chose to abstain during the crucial vote in Parliament. That in fact reveals the flaw of the existing system of impeachment. The answer, therefore, lies in reforming the system, rather than blame the players. A Constitutional amendment, therefore, would not fail because of fractured polity and a fragmented consensus. Today, the entire political class wants to limit the scope of judicial activism, and frequent judicial aberrations. Where is the question of parties opposing such a key reform aiming to put judiciary in its place?

Latest expose on Mashelkar

Today's Times of India carries the latest expose by Manoj Mitta on Mashelkar. The previous 'victim' says Mashelkar is irresponsible, if not dishonest. I would like to know Shamnad Basheer's comment.

Monday, February 26, 2007

Criminalisation of Politics: Latest initiative of the Supreme Court and the case for invoking Article 356 in U.P.

Last week, the Supreme Court referred a PIL seeking to prevent 'tainted' Ministers (i.e. those who have a criminal background) to a Constitution Bench, and also directed individual state governments to compile and submit reports to the Court on the issue. Yesterday's Indian Express carries a detailed story about the case, which contain interesting facts, including the following:

"In the ruling UPA, 15 Congress MPs, 10 from the RJD and five NCP MPs have cases against their names. The Opposition is no better: of the NDA’s 37 MPs with criminal antecedents, 26 come from the BJP. The Samajwadi Party and BSP too have 18 such MPs."

The Express piece focuses on the following issues (it is not clear if these are the actual questions that have been referred to the Constitution Bench):

"* Is there a constitutional convention that a minister charged with commission of serious offence by a court should resign

* Does it follow that people charged by courts cannot be appointed as ministers?

* Should the president or governor have a residuary power to act in their discretion and advise the prime minister or chief minister to sack such a minister? Can the president or governor refuse oath to such a minister?

* Are the president and prime minister obligated by their oath of office not to appoint chargesheeted ministers?

* Not guilty unless proved, so if a person is only accused, does it make him eligible to be appointed as minister or on other offices under the Constitution?

* Do the provisions of the Representation of Peoples Act 1951 apply only to members of Houses or do they also apply to appointment of ministers when the charge is not a criminal charge?

* Would setting down of such parameters amount to interfering with parliamentary prerogative?

* Does the PM’s or CM’s discretion to appoint ministers prevent the court from deciding if somebody should be appointed?"

Since the Supreme Court is now deciding Constitution Bench cases quite quickly (as opposed to the practice a few years ago, when referring a case to a C.B. was an effective delaying tactic), the case promises to be yet another of those decisions which will have an immediate impact on the playing out of everyday politics.

The facts that lie at the heart of this case are also important for setting the context against which one must understand Jayanthi Natarajan's impassioned Op-Ed in today's Indian Express, where she espouses the "moral case" for invoking Article 356 against the Mulayam Singh government. She argues:

"There has been a complete breakdown of governance and law and order in UP, over a period of time. Nithari was possibly the lowest depth to which democracy could degenerate. The lack of remorse shown by the state government, the collusion and cynical indifference displayed by the state police and the overwhelming helplessness of the victims’ families are vignettes of government failure. They constitute a blot on the record of our democratic polity. Until the bitter end, the chief minister did not step into Nithari village to condole with the bereaved families. On the contrary, evidence was tampered with, and records allegedly destroyed in order to cover up the collusion of highly placed persons and officials. The truth will never be known now.

The communal violence at Gorakhpur, the alleged involvement of cabinet ministers in murder cases such as the current Kavita Rani case, are all but the latest manifestations of the systemic rot that had permeated the state."

While her overall argument is persuasive enough, the medium she has chosen allows her to ignore some inconvenient facts and questions about the Congress' complicit conduct in the series of acts that she details. Her colleague - and fellow-advocate of invoking Article 356 in U.P. - Kapil Sibal had to confront those questions in an interview published in Sunday's Indian Express:

"COOMI KAPOOR: Your party has been supporting this government for three-and-a-half years. Why?

This has been asked a number of times. This matter was raised on September 4, 2003. People met the Governor in August 2003, and the first petition was filed on September 5, 2003. Even the writ was in 2003. The judgment came in February 14, 2007. How can I take a public position on the issue that hasn’t been proved by court, which is pending with them? And even if I say it is illegal, assuming I withdraw the support mid-term, what happens to Mulayam’s government? It makes no difference to Mulayam’s government at all unless the court and the institutions act in accordance to the Constitution. I cannot take a political stand on it even, because they will say who are you to say it is invalid. What did the other side do last time? I have already given you the background to that. The problem in this country is that when the institutions do not discharge their constitutional functions the Constitution gets subverted.

MANINI CHATTERJEE: But even if you had an inkling that the government is illegal, you should not have supported it.

You asked for my personal opinion I have given you that¿ politically there are other considerations to be taken. You asked for my personal opinion, you did not ask for the Congress party’s decision to support Mulayam’s government. The party’s support or non-support is based on political considerations over and above this. In my answer, I am giving you the Constitutional basis of my stand. There can be no doubt, objection or opposition to this, if there is, I would like to invite them to challenge the basis of my stand. In your hearts you know that Mulayam Singh’s government has little Constitutional basis to continue. Then why should Article 356 not be imposed? That is a decision the party has to take and I am nobody as an individual minister to oppose that.

PAMELA PHILLIPOSE: Isn’t the problem the lack of credibility of the Congress party, given its various experiments with this Article.

Luckily, you cannot have Article 356 in the Central Government. It’s not an issue, I am talking about the underlying Constitutional principle. I am not talking about politics here. If you want to talk politics, we can talk politics, but that’s a separate issue. Which political party has credibility in this area? BJP tried this with Lalu, BJP supported Narendra Modi, and when we said we didn’t think this government should be in power in Gujarat, BJP said that was all politics. Let’s be very clear when we talk about credibility: it’s a common thread that runs through all parties. But we are talking about Mulayam Singh, and Constitutionally it would have been right."

Given these troubling facts (the high number of criminal-politicians in every major political grouping, and the abuse of Article 356 irrespective of which party is in power), politicians who seek to adopt the high moral ground on these issues should think about how, by doing so, they set themselves up for the obvious charge of hypocrisy, or worse. Arguments hinging on "morality" don't sound very persuasive when raised by people who turn a blind eye to moral concerns when it suits their interests.

Deconstructing the Mashelkar Committee Report: Part 1

Coming as I do from the relatively apolitical world of research and academia, the events of the last two weeks have taken me by surprise and left me wondering as to how easy it is for the substantive issues in any debate to get sidelined. I thought I’d reflect on the “real” issues surrounding this controversy once the “name” calling and personal/ad hominem attacks had died down. But it only seems to be getting worse. Friends keep asking me as to why I haven't said anything on my blog yet. I therefore thought this an opportune time to attempt to deconstruct some of the arguments that are being flung around in this controversy.

I wrote a letter to the TOI and Hindu in response to the editorials that first sparked off this controversy and include it below.

Unfortunately, despite more than a week going by, neither of these papers have published this. Fortunately, the DNA carries some of the key points that I'd stated in the respose to the TOI and the Hindu. See http://dnaindia.com/report.asp?NewsID=1081968.

Also, the Hindu Business Line carried my interview where I have tried to clarify some of the factual inaccuracies regarding this debate--see http://www.thehindubusinessline.com/2007/02/24/stories/2007022402940700.htm



TO THE EDITOR OF THE TIMES OF INDIA

Dear Sir/Madam:

This refers to your article dated 12 February 2007, titled “Patent Wrong” by Chan Park and Achal Prabhala. In the process of critiquing the Mashelkar Committee Report, the authors have called into question my academic integrity, albeit indirectly. They have also alleged that the Committee “plagiarized” key conclusions from my submission.

I first deal with their charge of plagiarism, since I am the alleged “victim” here. They attempt to substantiate their claim of plagiarism by selectively quoting from my blog. They however omit the most critical part of my blog statement in this regard “To be fair to the Committee, they did include the crux of my submission in an Annex to their Report.”

In other words, the Committee did include my submission as an Annexure, as they did with every other submission (about 24 in all) that was made to them. It bears noting in this regard that the Committee received submissions from a variety of IP stakeholders including industry (Ranbaxy, Biocon, IPA, IDMA), civil society groups (ALF, MSF), law firms (Lex Orbis, K&S Partners), IP Associations (AIPPI) and even retired members of the judiciary (Justice Krishna Iyer). Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee’s observations were borrowed from my report to them. This being so, qualifying their borrowing of some of my conclusions as “plagiarism” is incorrect.

Park and Prabhala may not have intended this, but their writing casts aspersions on my academic integrity. If I understand their argument correctly, it runs something like this:
1. Shamnad Basheer is commissioned to write a paper on certain TRIPS issues for the purpose of submission to the Mashelkar Committee.
2. The paper is commissioned by the Intellectual Property Institute (IPI), with funding from Interpat.
3. Therefore, this paper necessarily reflects the industry position of Interpat.
4. Therefore, Shamnad Basheer exercised no independent judgment, but merely reiterated Interpat’s industry position.
5. The Mashelkar Committee was wrong to rely on the conclusions of a paper that reflects Interpat’s position.

These “leaps of logic’ rest on certain incorrect assumptions:

1. Anything funded by the pharmaceutical industry has to necessarily represent an industry view/position, despite the fact that the person commissioned holds himself out as an objective and independent academic.
2. The IPI is an “industry think-tank” that always resonates industry positions on all issues, despite the fact that its website (http://www.ip-institute.org.uk/) makes clear that is an independent charitable organisation which organises and peer reviews IP research.
3. The Mashelkar Committee blindly relied on the conclusions of my paper, without exercising any independent judgment of its own, despite the fact that it comprises members who are highly distinguished in their respective fields and known for their integrity.

Most importantly, the Park and Prabhala paper does no more than beg the question: is there something wrong with the analysis of TRIPS undertaken by me and relied on by the Committee? Park and Prabhala brush off this rather nuanced issue on TRIPS compatibility with broad statements such as “the report overlooks these (TRIPS) flexibilities—even the judgment of the WTO on this matter”.

Their note omits to explain as to what these “flexibilities” are, or where, in their opinion, the said flexibilities stem from and more importantly, which judgment of the WTO they are relying on—particularly, when there is not “one” but several WTO panel decisions dealing with TRIPS.

Article 27 of TRIPS mandates that patents shall be granted to all “inventions” in all “fields of technology”, provided such inventions are new, non obvious and have utility. Having studied TRIPS in some detail and now teaching it to graduate students at the George Washington University, my own view (as expressed to the Committee in more than 35 pages in a report that is now the subject matter of controversy) is that the term “invention” as used in Article 27 of TRIPS is to be vested with some basic meaning i.e. at the very least, it denotes something of “technical” import. Were it to be a term “freely” interpretable according to the whims of member states, we could end up with a situation where a member state may argue that it needn’t grant patents at all, since its unique lexicon suggests that nothing ever amounts to an “invention” under Article 27. In short, the term invention would be rendered redundant and such a result would fly in the face of a basic tenet of treaty interpretation that is well accepted under international law—that one cannot read a treaty term in a manner as to render it redundant.

Incremental pharmaceutical inventions are very “technical” in nature, and ought to fall within even the lowest common denominator that any sensible reading of the term “invention” would offer. As such, their exclusion from patentability (when the other patentability criteria of novelty, non obviousness and utility are satisfied) is likely to contravene the mandate under Article 27 to grant patents to all “inventions”.

Unfortunately, Park and Prabhala fail to engage with any of these substantive TRIPS issues. They may have had the best of intentions, but what they’ve engaged in amounts to what can at best be described as an adhominem argument which, according to Wikipedia, “consists of replying to an argument by attacking or appealing to the person making the argument, rather than by addressing the substance of the argument. It….. consists of criticizing or personally attacking an argument's proponent in an attempt to discredit that argument.”

The authors also reference section 3(d), a highly controversial section that is the subject matter of a lawsuit by Novartis in this debate, when the Committee never really speaks about section 3(d) in their report. It bears noting that the Committees mandate was never to examine the TRIPS compatibility of section 3(d) or of any existing provision in the Indian Patents Act and to be fair to them, they never engaged in this exercise.

This being so, it is rather far fetched to allege a “conspiracy” theory, simply because the Mashelkar Committee chose to adopt some of the positions advocated in my paper and to use some of the language from my paper. One has to bear in mind that this Committee was commissioned by the Government to come to a conclusion as independent technical experts. They were entitled to deliberate, seek outside guidance and then come to their own conclusions as they deemed fit. Of course, as I point out in my blog, although they got their conclusions right, the key failing of the Committee is in not demonstrating how they worked through the TRIPS issues/analysis in their report. Park and Prabhala conveniently ignore this not so “waxing jubilant” reception to the Committee Report in my blog.

A “thin analysis”, appears to be their main grudge against the Mashelkar Committee Report. It’s a sheer pity that the authors failed to use this fantastic opportunity (very rarely does one get space in the editorials of two leading newspapers on the same day) to “fatten” their own analysis.

The author is the Frank H Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University law School, where he teaches a course on TRIPS, pharmaceutical patents and public health.

Shamnad Basheer
Frank H Marks Visiting Associate Professor of Law
George Washington University Law School
Washington DC-- 20052
Ph: 001 (202) 957 3442
Email: sbasheer@law.gwu.edu

Sunday, February 25, 2007

Supreme Court's collegium

Another glaring instance of how the Supreme Court's collegium responsible for the choice of Judges in the Higher Judiciary does not jealously guard its primacy accorded by the Supreme Court's Opinion in Third Judges Case has come to light. Manoj Mitta's story in Times of India shows how Justice S.Ashok Kumar was appointed as a permanent Judge of the Madras High Court. The new CJI, Justice K.G.Balakrishnan, the story says, recommended Justice Kumar's confirmation, bypassing other members of the SC collegium. As the story suggests, is it an example of executive managing its way in the collegium system? If it is true that the previous CJIs too favoured Justice Kumar's extension - despite an adverse IB report - as additional Judge, does it mean the executive's influence is writ large on the collegium, especially, the CJI, who does not have any veto power? The story, in fact, partly contradicts what the SCBA was arguing the other day in New Delhi, (see my earlier contribution under the comments section) against the primacy of the collegium. The primacy of the collegium practically means the primacy of the CJI, and with lack of transparency, one does not know the factors which merit serious consideration by the CJI in the matter of appointments or transfers. In the Third Judges Case (In Re: Under Article 143(1) of the Constitution of India), delivered in 1998, the Supreme Court discussed at length the concept of collegium and the importance of the consultation process, only to dilute the element of arbitrariness implicit in the Second Judges case judgment, equating primacy with the CJI's view. It appears that arbitrariness is now back thus defeating the very thrust of the Third Judges case judgment.

Saturday, February 24, 2007

New Contributor to Law and Other Things Blog

I am very pleased to welcome V. Venkatesan to our blog. Mr. Venkatesan is a long-standing and well-known commentator on legal and judicial developments in India. He writes a widely read column in Frontline, which does not hesitate to tackle tough and controversial issues. I do hope that Mr. Venkatesan's online presence will encourage greater debate on the amazing number of constitutional and legal issues that are confronting our country today.

Finally, to add our standard caveat, opinions and views expressed on this blog reflect the personal views of the posters, and not the institutions to which they are affiliated. These views and opinions are based on well-considered and articulated positions and are an exercise of our fundamental right to freedom of speech and expression under Article 19 (1) (a) of our Constitution. They are not intended to defame anyone or constitute contempt of court.

Friday, February 23, 2007

Article 356 in the news .... again

On Valentine's Day this year, the Supreme Court delivered its decision in the Rajendra Singh Rana case, disqualifying 13 MLAs in the U.P. Legislative Assembly, and sparked off a veritable 'constitutional crisis' as the UPA government considered invoking Article 356 to impose President's Rule in the crucial state of U.P. Watching this event unfold over the past few days was depressing, as all the players seemed to be playing a by-now familiar set of roles, ignoring the much commented upon abuses of Article 356 in recent decades.

Today's editorials for the Hindu and the Telegraph conclude that the crisis has been averted due to the tactical intervention of the Election Commission, but are quite strident in their condemnation of the political opportunism that was on display in full measure during the unfolding of events over the past few days. Also, Soli Sorabjee has a hard-hitting Op-Ed in the Indian Express commenting on this recent episode by placing it in the context of recent cases involving Article 356, including the Bommai case, which he argued and has also written insightfully about.

In the comments section of the post preceding this one, V. Venkatesan draws attention to a possible solution to the perennial problem of the abuse of Article 356, which came up during the proceedings of the National Commission to Review the Working of the Constitution, and was the subject of a 2001 Frontline piece by him.

While this crisis may have been averted, it only emphasises the need for resolving the basic issues at the heart of the continuing abuse of Article 356.

Monday, February 12, 2007

Assertions of Institutional Supremacy

In a recent post, I sought to highlight the problems with Somnath Chatterjee's assertion that Parliament ought to have the last word on the issue of Parliamentary Privileges, and that judges should stay away from this arena. As Noorani's article linked in that post demonstrated, it is not at all clear that the Constitution intended Parliament to have the final word on such issues.

By the same token, a recent statement made by the new Chief Justice of India, Justice Balakrishnan, is equally problematic. According to this newsreport, Chief Justice Balakrishnan is said to have "ruled out the question of having any compulsory annual declaration of wealth and assets by judges of the apex court and high courts." The report quotes the CJI as having asserted that

"No self-respecting judge would accept the idea of such compulsory declaration or have any committee of lay persons to probe the conduct of the judiciary,"

Leaving aside the fact that several judges of the Supreme Court of India in the past have recommended and endorsed such measures (most notably, Chief Justice Verma, who is said to have mooted this proposal during his tenure), one cannot help wondering if the 'self-respect' of judges should be the determinative factor on this issue, at a time when the controversy sorrounding Justice Bhalla is fresh in the minds of people who have been campaigning around the issue of corruption in the higher judiciary.

It is an oft-made claim but in this context, it bears repitition: if the higher judiciary in India aims to be the watchdog for every other democratic institution in India, it would be better off setting its own house in order in the first place. To this end, it should put in place measures to ensure that it is above reproach.

On a separate note, while Chief Justice Balakrishnan's tenure is already headed towards the history books, he may also be remembered for having given perhaps the largest number of interviews to the press so early in his tenure. Newspapers from the last two months seem to be filled with an unusual number of quotes attributed to him.

While this may augur well for those who value transparency in public life and
complain about the reticence of high public figures to comment about the functioning of their offices, some of the new CJI's statements do cause concern, given the fact that his comments bear upon cases that may potentially arise before him in his capacity as Chief Justice of India. Of late, there have been some cases in other jurisdictions where judges have had to recuse themselves from cases for having publicly stated their views on the policy issues at stake beforehand.

Update:
In the comments section, V. Venkatesan has interesting thoughts on the CJI's press statements. He has also asked about the comparative examples that I referred to in the last paragraph, while also enquiring about statements of the CJI that I find particularly problematic. The one judge who has been in the news a lot over the past few years for making public statements that have caused doubts about his ability to adjudicate upon cases with an open mind, is Justice Antonin Scalia of the U.S. Supreme Court. This online article details how Justice Scalia recused himself (pursuant to an application by the plaintiff) in a recent, high-profile case relating to secularism in the U.S. (the Pledge of Allegiance or Newdow case). Newdow was decided in 2003. More recently, in April 2006, the same issue arose in the context of a much more controversial case: Hamdan, which dealt with the legality of the Guantanamo detentions. At issue was Scalia's comments delivered in March 2006 to the effect that the Guantanamo detainees had no rights under either the U.S. constitution, or international law: a central issue in the Hamdan case. Scalia ultimately did go on to hear the case, but as this article points out, the concerns raised were serious ones.

I cannot offhand think of any particular statement of Chief Justice Balakrishnan that I found particularly problematic, but given that in India, it seems inevitable that any significant issue (whether political, social, or even economic) eventually becomes a legal and judicial issue, it would seem prudent to avoid commenting on current, developing issues. The CJI may be well advised to at least consider Justice Scalia's recent experiences in this respect.

Friday, February 09, 2007

Justice Katju on the need to reform current judicial attitudes (and the law) relating to Contempt of Courts

Justice Markandey Katju, who was recently appointed to the Supreme Court, appears to be a representative of a rare species of higher court judges in contemporary India, who actually agree that the Supreme Court's approach to contempt of court cases is in dire need of reform.

Outlook has published the full text of a public lecture he delivered recently, where he reiterates his position, which is one that he has advanced for some time now. This latest articulation of his position seems a bit too heavily reliant on judicial rulings and personal views of English judges and lawyers on the need for a tolerant contempt of court jurisprudence. Given that the English judiciary bears very little resemblance today to the Indian Supreme court, which has far exceeded the former both in powers and the jurisdiction it exercises in deeply political issues, one would have expected arguments grounded in current Indian realities. But, what is exceptional is not the content of the argument itself, but the fact that a Supreme Court justice is making the case for change. The full text of the speech is available here.

Justice's Katju's main argument is as follows:

"I submit that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt power is not to vindicate or uphold the majesty and dignity of the court (for it is automatically vindicated and upheld by the proper conduct of the Judge, not by threats of using the contempt power) but only to enable the court to function. The contempt power should only be used in a rare and very exceptional situation where without using it, it becomes impossible or extremely difficult for the court to function.In such rare and exceptional situations, too, the contempt power should not be used if the mere threat to use it suffices."

Update: In the comments section of this post, V. Venkatesan sets out his position on the issue of contempt of the judiciary. Here is his view on Justice Katju’s position:

“Justice Katju has referred to the latest amendment of the Contempt of Courts Act, and has endorsed it. But to many of us who have been arguing for greater accommodation on the part of the judiciary, the latest amendment is just a sham. It says: 'The Courts may permit....". The point is that the Courts have not done so in many of the cases that came before it, even though the Act so far was silent on whether truth could be a defence. And if Nariman's lecture is any indication, the Supreme Court in fact misinterpreted an earlier judgment to suggest that it had ruled that truth could not be a defence in contempt proceedings. Ambiguity on this issue, therefore, led the Court to refer the question to a Constitution Bench, which has not yet heard the case.

I have often wondered what is the purpose of this amendment. If the objective is to bind the judiciary to accept truth as a defence, then the word 'shall' must have been used instead of 'may'. Secondly, is it not too much to expect a Judge to be "satisfied" that justification by truth is in public interest and the request for invoking the said defence is bona fide? What if the perceptions of contemner and the Judge differ on this issue? In other words, will a probable contemner take the risk (even if she is fully convinced that truth could be invoked as a defence in the case), if the Judge has the veto to reject the claim at the threshold stage?”

I am grateful for this intervention. The purpose of the original post was to highlight the fact that some judges also appreciate what seems to be a fairly obvious point for many commentators: that current approaches to contempt of court law in India are deeply problematic. In the post, I did not set out my own view, which I will lay out briefly here.

Essentially, I agree with V. Venkatesan’s clearly set our view. My view, if anything, is more radical. I find it particularly ironic that the institution which is going about setting out norms of accountability and transparency for every other institution in India, is simultaneously pursuing such a patently self-serving attitude on crucial issues relating to its own accountability, such as judicial appointments and contempt powers. I say ‘ironic’ but I don’t find it surprising – this sort of institutionally self-serving behaviour is not peculiar to either the judiciary (within India) or to the Indian judiciary (when viewed comparatively). What is surprising to me is that in India, this is done with such lack of sophistication, leading to the obvious charge of hypocrisy. Such lack of sophistication may be generated because the Court in India is by now accustomed to getting away with a degree of judicial bravado and recklessness which would be unacceptable in most representative democracies, but is made possible in India because of the high degree of political fragmentation that has weakened the executive and legislature over the last two decades.

Across the commonwealth, judiciaries have been acting increasingly aggressively in recent years, which has led to a great deal of discussion among scholars about the “judicialisation of politics” globally. Yet, while speaking the language of 'democracy' 'rule of law' and 'transparency', these judiciaries have nevertheless sustained the validity of the antiquated offence of ‘scandalising the court.’ In recent years, the South African Constitutional Court has issued judgments of such a scale and ramifications that it can lay claim to being, alongside the Indian Supreme Court, “the world’s most powerful court.” Yet, even that court, in a 2001 ruling in the Mamabolo case, upheld the constitutional validity of the criminal offence of 'scandalising the court'. Part of its justification was that courts in “England and Wales, Canada, India, Australia, New Zealand, Mauritius, Hong Kong, Zimbabwe and Namibia” had done so.

If there is an example to be followed from comparative law, I believe it is that of the American judiciary. As early as in 1941, the U.S. Supreme Court took a progressive step towards making the offence redundant in practice, by interpreting it in consonance with that court’s generally strong preference for the rights of speech and the press, and by refusing to find the alleged contemnor guilty in Bridges v. California. Justice Hugo Black’s following words are very appropriate for the current Indian situation, as well as for other common law judiciaries:

“The substantive evil here sought to be averted … appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

Following this line of reasoning, I would argue that the current approach towards contempt of court needs to be wholly revised, bearing in mind the problem with the traditional basis for such a jurisdiction that Justice Black's statement exposes. While I am fully aware of the problems of recommending the virtues of an American model in this day and age, I believe that on this issue, doing so would enable the Indian judiciary to reclaim the high moral ground that it is having trouble asserting when stories about the questionable behaviour of Justices Bhalla and Jain abound in the media. In the long run, allowing its own conduct to come under public scrutiny (as it has been insisting for every other institution in India) will add considerably to the stature (and powers) of the judiciary in India.

Wednesday, February 07, 2007

Frontline articles on I.R. Coelho (the Ninth Schedule case) and Raja Ram Pal (the MPs expulsion case).

Recent months have witnessed many interesting legal developments in India. I hope that some of us who were active earlier can revive this blog. While it was alive, this blog provided a valuable forum to both learn about and discuss the transitions that are currently being experienced by the Indian legal system.

The latest issue of Frontline (Feb 09, 2007) has a cover story called "Judicial Challenge: Supreme Court judgment on Ninth Schedule triggers debate on separation of powers between judiciary and legislature." Though focused on the I.R. Coelho case, it also contains additional commentary on the Raja Ram Pal case, as well as an interview with the Speaker of the Lok Sabha, Somnath Chatterjee, who continues to adopt the combative stance towards the judiciary he has been taking for some time now.

Writing about the Coelho case, V. Venkatesan asserts that it is "disturbing because it emphasises fundamental rights over the directive principles of the Constitution at a time when the neoliberal agenda of the state is being endorsed in various judgments of the Court" To make this claim, Venkatesan cites Indira Jaisingh's analysis on rediff.com that Coelho is a potentially regressive decision.

While Venkatesan's description of the details of the case is helpful, his analysis and conclusions are debatable. For instance, it is not immediately clear why the decision is necessarily anti-progressive. Indeed, one can argue, as Pratap Bhanu Mehta did in his Indian Express article appropriately titled "No dark spaces", that the Court's judgment in Coelho can be interpreted as advancing an ideal of public reason, where no governmental agency or authority can claim that its judgment or actions are the last word in a constitutional democracy. By asserting that the Ninth Schedule is no longer a "hands-off" zone, the Supreme Court is arguably advancing the claim that all public decisions in India must be subjected to rigorous scrutiny and debate. Of course, the obvious problem with this interpretation is that the Supreme Court does not include itself within this paradigm and has, as a result of its recent rulings in Contempt of Court cases, as well as the judicial appointments cases, reserved its own right to have the last word in several matters relating to the judiciary in India.

Somnath Chatterjee's interview has many interesting statements, which showcase his strengths as a lawyer. This following statement builds the case for what is clearly problematic about much of the recent jurisprudence of the Supreme Court:

"You can see that these were all basically people's wishes being given legal shape by the legislatures. That is why legislatures exist. To give expression to, and make laws to channel, the people's wishes. With all humility, let me point out that the Supreme Court cannot make laws.

It would be a total misunderstanding of the Constitution to say that the orders declared by the Supreme Court would be the law of the land. In the process of declaring orders, the Supreme Court cannot create new laws. Nor can it amend laws. If there is some uncertainty about the interpretation of any particular law, it can clarify and come up with a clearer interpretation. But it cannot say that there is uncertainty in such and such a law and hence we are making a new law. And I have great doubts about the monitoring committees that are being set up. With all my respect to the Supreme Court, I wish to say that these are all unnecessary forays into areas that are to be basically defined by the legislature.

I do not know why this is being done when the judiciary has enough problems of its own in the form of huge accumulation of cases. (Emphasis added)."

Note the slight dig at the end, to emphasise the principal argument about democratic or popular sovereignty. Continuing in this vein, Chatterjee asserts:

"One of the primary tasks in politics is to recognise the aspirations of the people and the downtrodden and take steps to give them concrete shape. Make no mistake; legislatures have not been constituted to promote literary debates. As an instrument of the Constitution, the judiciary is also not a centre to promote legal learning. The institution is as much obliged to the people's interests and has to see that it has a justifiable reflection in its functioning. Now, who understands the people's interests better? Who is authorised under the Constitution to advance the interests of the people? It is the legislature. Now, an assumption is being sought to be built up that Parliament, as a whole, does not understand the public interest.

In my humble opinion, the judiciary must accept the legislature's views on the public interest where it has been unambiguously expressed. The judiciary, sitting in ivory towers, is not even supposed to take part in political discussions. I think that this is an unnecessary controversy that is being created. Ultimately, it will not be good for the nation. See, I yield to none in my respect for the judiciary. But I am also a strong proponent of the constitutional provisions of the country."

All these are propositions which are hard to disagree with, and are expressed in reasonable and persuasive terms. However, it is while discussing the MPs exclusion case, that Chatterjee's reasoning becomes less convincing. On that issue, he is broadly supportive of the Court's ultimate decision. Yet, he adds a rider:

"I must also add that the Court has come out with certain disquieting observations too while delivering the judgment. It has been held that legislatures in India cannot claim immunity from judicial scrutiny even in respect of their internal proceedings as such immunity militates against the Constitution. I would like to humbly submit that I do not agree with this. I had not said this earlier and I do not want to make an issue out of this because I am of the firm opinion that the situation that the Court has defined as suitable for judicial scrutiny would never arise. ... ... ...

My humble contention is that no one is above the Constitution. If the Constitution of India has said that no court shall have jurisdiction over the internal proceedings of the legislature, the Court cannot annul it with some sort of interpretation. So, I am hopeful and I believe that the Supreme court, in its wisdom, will not in the future or ever accept any attempt to have such interpretations, which would allow an interfacing supremacy."

The problems with this line of reasoning are clearly set out in A.G. Noorani's searching piece describing and analyzing the January 10 decision of the Supreme Court in Raja Ram Pal, where he analyses the constitutional provisions, the historical context of Parliamentary privileges in India, and the leading cases that had analysed this issue in earlier eras. Noorani concludes that there is no basis for the claim - asserted by Chatterjee among others - that Parliamentary privileges are paramount, and are some kind of an inviolable space. Noorani criticizes the judgment of Chief Justice Sabherwal for, among other things, not clearly setting out that Parliamentary privileges in India are limited and cannot prevail over fundamental rights, especially the right to freedom of speech.

Whatever be one's personal views on these two cases, it seems indisputable that they can justifiably lay claim to being 'landmark' cases.