Wednesday, October 31, 2007
It is a matter of surprise, he said, that the relevance of Supreme Court’s judgment in B.Venkataramana v. the State of Madras (AIR 1951 SC 229) has not been sufficiently understood. The judgment was delivered by a Seven-Judge Bench and it binds the present five-Judge Constitution Bench. In this judgment, the SC set aside that part of the communal G.O. of the then Madras State which dealt with classes other than SCs and Backward Hindus and sustained the validity of that part of the G.O. which reserved posts for Backward Hindus and SCs.
Why did the SC do this?
Since Jethmalani dealt with this judgment at length, I tried to get a copy of this as it is not available on line. (IT IS AVAILABLE HERE, THANKS TO MR.PARAMESHWAR, ONE OF OUR REGULAR READERS) Briefly, the Madras Public Service Commission invited applns. For 83 posts of District Munsiffs to be filled by direct recruitment. Selection of candidates was to be made from various castes, religions, and communities in pursuance of the rules prescribed in what are popularly described as communal G.O.s namely, for Harijans (SCs) 19, Muslims 5, Christians 6, Backward Hindus 10, Non-Brahmin Hindus 32 and Brahmins 11. Different and unequal age limits for candidates of the above mentioned different classes were fixed and no age limit was fixed for Harijans and Backward Hindus.
It was admitted by the Advocate General that the marks secured by the petitioner would entitle him to be selected if the provisions in the communal G.O. were disregarded. He, therefore, prayed for an order declaring that the rule of the communal rotation, in pursuance of which the selection was made was repugnant to the provisions of the Constitution, and thus void.
The Court held that it is impossible to say that classes of people other than Harijans (SCs) and Backward Hindus (as mentioned in the Schedule of BCs set out in Sch.III to Part 1 of the Madras Provincial &Subordinate Service Rules) can be called Backward Classes. The Court held: “As regards the posts reserved for Harijans & Backward Hindus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens; but the ineligibility of the petitioner for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin.” This ineligibility, the court said, is not sanctioned by Art.16(4). The communal G.O., therefore, was declared void and illegal, as it was repugnant to Art.16. The Court did not consider it necessary to consider the effect of Article 14 or 15 on the case of the respondents.
Using this judgment, Jethmalani argued that advancement of the interests of backward Hindus and the SCs is not discriminatory only on the ground of caste. In other words, if you were competing against backward Hindus and SCs, it is not repugnant to Article 14 and 15. Emphasis on ‘only’ in the body of the judgment was underlined by Jethmalani.
In Balaji v. State of Mysore (AIR 1963 SC 649) the Supreme Court fixed the maximum ceiling of 50 per cent for all kinds of reservations, but Venkataramana did not find a mention in Balaji. This, according to Jethmalani, was surprising. In Balaji, the Court took strenuous objection to the exclusive reliance of Mysore on caste (in the sense of rank or standing) as a criterion of social backwardness and noted that occupations and place of habitation are also relevant. Venkataramana has not been reversed, and therefore, is binding. The simplicity of this rule obviates the long, long arguments on determining what is educational and social backwardness, making them totally redundant. Only argument that survives is: is it a fraud on the Constitution? There is no such pleading. Such a pleading is not possible. Balaji, he said, is a reflection of Nehruvian viewpoint. Slowly, the Ambedkar philosophy prevailed.
Petitioners have cited Jawaharlal Nehru’s letter to the chief ministers on August 14, 1961 wherein he advised the States to follow economic criteria to identify backwardness. He said the State Governments rightly did not follow this advice. Had they done so, all their lists would have become ultra vires in view of the judgment in Indra Sawhney which declared 10 per cent reservation for economically backward as unconstitutional.
Jethmalani pointed out that even Indra Sawhney judgment did not refer to Venkataramana, even though in Indra Sawhney, the Court agreed that the word “only” in Article 16(2) was decisive. Therefore, determination of backward classes and the exact meaning of backwardness are irrelevant. The question to be asked is “Is it only caste?”,
He described the petitioners’ attempt to reverse the Indra Sawhney judgment by this five Judge Bench as impertinent. Certainty of laws must be preserved, he said. In the Bengal Immunity case, Chief Justice Das, laying down the doctrine of finality, has said we should not lightly dissent from previous view. Merely because previous case was wrongly decided is no ground to reverse it.
A Reflection on the Indian Professoriate and its relevance for contemporary legal education in India
On Oct 07, the Hindu carried this brief tribute to Professor Daya Krishna, the former Head of the Department of Philosophy at the
[Professor Daya Krishna] was an immensely productive scholar: his output ranged from technical articles on the philosophy of mind and philosophy of science, published in the world’s top refereed journals, to books on development and on Indian philosophy. He was multi-disciplinary in the best sense of the term: sparring with Raj Krishna on the Indian economy, and taking the blinkers off sociologists in a classic article on the ‘Varna Ashram Dharma Syndrome of Indian Sociology.’ His sensibility was Socratic, less interested in system and ideology, than on shining a critical light on unexamined assumptions. He used knowledge like a scalpel to cut through cant and drivel, always with great humour and effect. Later in his career he turned to a serious study of Indian thought, and though the work of this period is more laboured than his earlier work, he was a great facilitator of a genuine dialogue between Indian and western philosophy of a kind that no longer seems possible.
Beyond paying tribute to “Dayaji” as Mehta refers to Professor Krishna, Mehta seeks to “use the occasion for wider self reflection.” Mehta’s central argument is that Professor Krishna “represented what the Indian university system could become at its best, and his passing away is emblematic of the way in which the best in it is on the verge of extinction.” This is how Mehta builds his case:
The academic world [Professor Krishna] represented is one that is irrevocably lost, though arguably we need it even more. He conducted his professional life on an ideal we can scarcely imagine: the idea of a professoriate. This was founded on two assumptions. The first was that the primary purpose of a university is to cultivate the intellect and the life of the mind. If a university is made instrumental and subordinate to other purposes — social engineering, political goals or cultural pride — it loses its essential character.
This idea that universities can achieve the most when they are thought of as a non-instrumental space, challenging our consciousness to surpass itself, is almost completely extinct in modern
The second assumption was that being a professor was a vocation in the true sense of the term, with its own inherent dignity, norms and autonomy. But this is both an institutional idea and an existential one. Institutionally it meant that the professoriate is a vocation that in the conduct of its professional obligations is answerable primarily to itself. It may aim to reach popular audiences, but it does not take its standards from them; it may speak to holders of power, but it does not let power define its agenda; it may aim at useful knowledge, but utility does not exhaust the value or significance of knowledge. Although we often talk about university autonomy, this discussion is limited to securing the autonomy of vice-chancellors from government. What we have lost is a sense of a self-governing and self-regulating professoriate that despite all its fractiousness is united by a commitment to cultivating the intellect, nothing less and nothing more.
Existentially, Dayaji could convince you that there are few things in life more pleasurable, and more important than a good seminar. Indeed, for him it was almost a democratic form of sociability: where each argument had its individuality, yet there was communication. There was difference but also the possibility of transformation; disagreement, but not sullied by strategic or personal considerations.
… … … But creating a new and exciting academic milieu is not just about institutional reform; it is about recapturing a space for non-instrumental views of knowledge, about valuing an adventure of the mind without quite second-guessing what it will come up with. Dayaji would have been the first to acknowledge that the next generation will often be cleverer than last, but whether it can recreate a vibrant university life is still open to question.
Mehta is clearly addressing the state of higher education in
We have debated some of the reasons for that in the past on this blog (see this post in particular). I earnestly believe that Mehta’s prescriptions should be debated by faculty members in Indian law schools as any such discussion will provide rewarding insights into essential issues of pedagogy, areas of institutional focus, and the incentive structures that must guide the work of Indian legal academics. This will, hopefully, allow the current exclusive focus on churning out “well-trained” undergraduates to service the various sectors of the legal profession to be modified and altered to achieve a better balance between the multiple objectives that law schools ought to aspire for.
Tuesday, October 30, 2007
Jethmalani then referred to an observation made by the Court in a previous case that PILs are not exempt from rules of pleadings, and they have to be precise and must contain basic cause of action. Justice Pasayat replied that the Bench must take note of the rival contentions. It cannot be called sanctifying, he said.
Jethmalani again returned to the interim order which referred to the petitioners' threat to the Bench that there would be a civil war and anarchy if OBC quota continued. He said that on this ground alone, the petition must have been thrown out, as the petitioner is not entitled to a hearing because he has issued a threat to the Bench.
More on his submissions later.
Sunday, October 28, 2007
Personal circumstances have prevented me from being active on the blog. However, I have followed the debate over Roy’s Oct 2007 article in Outlook as it has unfolded here. My purpose in this post is to comment on two specific criticisms about Roy’s analysis that have been advanced by Vikram and others on this blog. The full discussion of Roy’s article in previous posts is available, in chronological order, here, here and here.
I have always been struck by the extreme reactions generated by Arundhati Roy’s writings on some of the most significant public issues of our time over the past decade. Even if I haven’t always agreed with the full extent of her argument in her several essays, I have invariably learnt something new from her pieces, and have come to admire her ability to break down often complex issues into clear specifics which are intelligible to audiences beyond those who are already familiar with the issues in question. She displays a skill in focusing on the central issues at stake, and then communicating her own argument in a forthright (often audaciously so) and compelling manner to her audience. By taking on the role of a public intellectual, she runs the risk of making generalizations and oversimplifying issues, but in doing so, she generates interest in the issues she focuses on amongst a much larger audience than would perhaps have come to the issue in the normal course. She is often polemical, and provocative, but those are, to my mind, the standard devices that people who seek to highlight issues adopt. While some of her tone would be objectionable in an academic article, her purposes are clearly beyond those that academics typically aim for, and are justifiable as tools employed to garner public attention on pressing issues.
My sense is that some of the vitriolic reaction is generated in part because people disagree with her politics, or see her as lacking either the standing or qualifications to raise those issues. This is evident in the general tone of the comments she elicits, even from people whom we otherwise regard as sober and scholarly commentators. Recall in this respect, Ramachandra Guha’s blistering attack on her involvement with the Narmada Bachao Andolan in 2000. Guha’s diatribe in turn generated a debate (some of which is collated at this link) and I do not want to revive that here. Back when I first read Guha’s article, the most troubling line for me was in its concluding paragraph, where he asserted that “we would all be better off were she to revert to fiction.” Apart from the illiberal sentiment it conveyed, Guha’s more troubling insinuation was that Roy was unqualified to comment on issues of environmentalism (on which, presumably, only people - such as Guha himself - with an extensive academic and/or practical involvement were entitled to hold forth). We may live in what some have termed an age of specialization, but this argument has dangerous anti-intellectual overtones which must be resisted. By this logic, someone else could well advise Guha to stick to writing, for instance, only about the cricket habits of Victorian Englishmen. Imagine what a loss to public discourse that would result in.
I have dwelt on this point because I see shades of a similar logic being employed in the debate that has ensued on this blog. Vikram and other commentators have explicitly questioned: i) Roy’s understanding of jurisprudence (it is claimed that her comments betray a lack of understanding of the complicated jurisprudential nuances of the idea of the rule of law) and ii) her analysis of the trajectory of the Supreme Court’s record in PIL cases. The argument is that on both these issues, Roy’s lack of legal training may have led her to reach either false or misguided conclusions.
My purpose in this post is to demonstrate that on both these points, Roy’s views are in good company, as legal scholars with impressive credentials (I emphasise this since to me this is basically a debate about Roy’s qualifications to comment on legal issues) have previously made the arguments that Roy raises in her Oct 2007 piece.
i) Roy’s views on PIL
I start with the issue of PIL. In this and in more recent pieces, Roy has argued that while PIL had noble and high-minded beginnings, it has, over the last 15 years or so, taken on a different character. In this new phase, Roy asserts, the judiciary’s own authority to decide public issues has taken centre-stage, displacing the interests of the original beneficiaries of PIL cases. As Dilip recognizes, this is an argument that essentially echoes Prashant Bhushan’s critique of recent trends in PIL cases. There are others (such as Usha Ramanathan) who have offered a similar prognosis, and these are figures who cannot be accused of being ignorant of the full extent of PIL jurisprudence.
No less a figure than Professor Upendra Baxi has, for more than a decade now, been making the argument that PIL in India has undergone a “counter-revolution” that has caused it to move away from its progressive origins. Amongst pieces that are available online is one that is titled “Structural Adjustment of Judicial Activism.” (The title of the piece indicates that Roy is not the only person who is ignorant of the Bank’s internal changes in terminology for its projects and themes). In it, Baxi makes the argument that pressure from international financial institutions may well be one of the factors that has influenced such a “counter-revolution” affecting the nature of the Supreme Court’s PIL jurisprudence. Here are extracts from the piece which predate Roy’s argument in her Oct 2007 outlook piece (the extract is from pages 26-27, while the examples he addresses are at pages 23-26):
In the halcyon days of the birth and growth of the constitutional implosion of forms of social action litigation, I was moved with a degree of justifiable co-authorial pride to say that the Supreme Court of India has at last become the Supreme Court for the Indian impoverished. The five instances that I here mention usher in what may be accurately named as judicial counter-revolution proceeding via the structural adjustment of judicial role, function, and power.
The apex Court no doubt sincerely remains animated by a fine solicitude that promotes and protects in some very complex moves, human rights of the globalizing Indian middle classes. In this, its activist performances remain truly impressive. Granting all this in the fullest measure, it still needs saying that forms of structural adjustment of judicial process and power enormously short-changes the constitutionally worst-off peoples. (Emphasis added).
Another scholar who makes a similar argument is Balakrishnan Rajagopal, who has built up an impressive record of scholarship analyzing the recent jurisprudence of the Supreme Court of India. In a recent piece whose very title echoes Roy’s central argument: “Pro-Human Rights but Anti-Poor?: A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective.” The abstract sets out the main argument of the piece:
In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon.
The Rajagopal piece has the added advantage of discussing details of specific cases from the original and more recent phases of PIL which seek to demonstrate the truth of his claims. Studying these cases will also disprove the claim of one of our commentators, “oskaladden” that there is nothing spectacular about the record of the Supreme Court of India which sets it aside from cases decided by courts in the US, Germany or Israel. To my knowledge, there is no court in the world today which has taken on the range of issues that the Indian Supreme Court has, and there are good reasons for such avoidance, which our own court may do well to reflect upon. I have provided references to two scholarly works, but there is a growing body of legal scholarship which documents the trends that Roy adverts to.
ii) Roy’s views on the Rule of Law
The thrust of Roy’s views on the Rule of Law is contained in this extract from her article:
The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they're designed to protect.
Vikram and Aditya Swarup (one of our regular commentators) find this to be evidence of Roy’s lack of familiarity with the vast body of jurisprudential scholarship which discusses the concept of the Rule of Law. While it is true that Roy does not cite the usual suspects who crop up in legal discussions of the rule of law, this does not necessarily mean that her analysis is incorrect.
It is interesting that Roy specifically cites the World Bank’s role in promoting a particular conception of the Rule of Law. While Vikram relies on his personal experience to rebut her views, the fact remains that there is a considerable body of scholarship which supports Roy’s critique. Indeed, the policies of the World Bank and other aid organizations are now the subject of a sub-field of ‘law and development’ studies which focuses, among other things, on the manner in which the World Bank has been promoting legal and judicial reform across the developing world since the 80s. This is done through multi-billion dollar projects that seek to implement a particular conception of the Rule of Law. Scholars who have focused on such projects have noted that the World Bank’s conception of the Rule of Law has very specific components, which do not fully capture the substantive components of conceptions of Rule of Law.
I cite and provide links to two scholarly works that help appreciate the argument that Roy makes in her Outlook piece. In a piece titled “Myth-making in the Rule of Law orthodoxy,” NYU Law Professor Frank Upham argues that the conception of the Rule of Law promoted by the World Bank and other aid organizations in the developing world is inconsistent with conceptions of the Rule of Law that are widely held and implemented within developed nations like the U.S. and Japan. In the piece, Upham provides several illustrations to make good his central claim.
Alvaro Santos’ piece titled “The World Bank’s Uses of the “Rule of Law” Promise in Economic Development” is more directly relevant to Roy’s critique. The article itself is part of a fascinating recent book by a group of leading Law and Development scholars. Santos, who now teaches at Georgetown Law School, first sets out the dominant understandings of the idea of Rule of Law in traditional jurisprudential theory. After examining the views of ancient scholars such as Aristotle, Montesquieu and Locke on the Rule of Law, Santos moves close to our times, and analyses ideas canvassed by A.V. Dicey, and more modern scholars such as Hayek, Joseph Raz and Amartya Sen among others. He concludes as follows:
Scholars writing about the rule of law rely on these and other sources for authority on what the concept means. There is however, little agreement on how the conceptions of these different authors and their positions relate to one another. Some scholars have noticed the ambivalence or vagueness of the term and the multiple ways in which it maybe deployed by different actors for a variety of purposes.
In the rest of the piece, Santos argues that the innate ambiguity of the concept of the Rule of Law has enabled the World Bank to pursue a host of different (often contradictory) objectives in its legal and judicial reform projects over the past two decades. In so doing, the Santos piece, like the Upham piece I cited earlier, bears out the truth of Roy’s assertion that the Rule of Law is a concept that has very little agreed content, and may vary from one context to another. Both Upham and Santos would, I have no doubt, endorse Roy's extracted conclusions about the concept of the Rule of Law.
I hope this overly long post demonstrates that Roy’s critique in the Outlook piece is grounded in (or finds support from) legal scholarship, both domestic and global, on the specific points raised in discussions so far. Whether we find Arundhati Roy’s views on particular issues persuasive or not depends on our own conceptions of politics, and our perception of the issues she focuses upon. I do not, however, see what is erroneous or unsophisticated about Roy’s legal analysis in this piece. Indeed, if one were to focus on her views on contempt of court that she outlines in the main part of her article, one cannot help but admire the succinctness with which she puts forth her argument and criticism.
Friday, October 26, 2007
"October 26 marks the first anniversary of the Protection of Women from Domestic Violence Act. The law was conceived as a civil law as distinct from the existing criminal law: Section 498A IPC. It was often said that criminal law had no space for settlement of disputes and could give no relief beyond a conviction. It was to meet this need that the new law was passed.
It provided for the right to residence in the shared household, the right to protection orders, gave power to courts to restrain alienation of assets, mandated return of stridhan and other significant reliefs. It defines violence in all its dimensions, from the physical to the sexual and economic. This definition was taken from the UN Model Code on domestic violence and from the Convention on the Elimination of All Forms of Violence Against Women, to which India is a party. It applies not only to married women but also women in live-in relationships, daughters/mothers facing violence in domestic relationships.... ....The [Lawyers Collective] report shows that the law’s main users are women in matrimonial relationships. A few widows have been able to prevent dispossession by using the law, and some young girls have prevented forcible marriages by fathers. The major breakthrough the law achieved was the declaration of the right to reside in the shared household. Surprisingly, it took independent India 60 years to ensure this right. The law makes a clear distinction between the ownership of the shared household and the right to reside in it. What the law does is to grant the right to reside and not to be dispossessed, except by authority of law. It thus prevents forcible dispossession.
This provision suffered a major setback at the hands of the judiciary. The Supreme Court, even before the ink on the Act was dry, declared in a judgment that a woman could claim this right only in relation to a household owned/ rented by her husband. This means that even if her husband lives with his parents and she has her matrimonial residence there, she cannot claim right to residence there. The judgment not only overlooks the law itself, it also overlooks the existing social reality of the joint family, which continues to be the predominant pattern. The report documents how several courts have been refusing relief to women based on this judgment. It demonstrates that in India women have lesser protection than tenants, who cannot be evicted except by procedure established by law.
There have been major protests around this law. Organisations to ‘Save the Indian Family’ have been formed; women who campaign for the law are being told that they are ‘frustrated’ and are ‘home breakers’. It is obvious that respect for human rights of women in domestic relationships — the premise on which the law is based — is not something intrinsic to the ‘Indian Family’. The right to live with dignity is not conceded to women in the private domain. These attitudes predominate at all levels, particularly in the upper classes, among bureaucrats and decision-makers. They have determined the terms of this debate ignoring the Constitution’s egalitarian values. It is therefore not surprising that the law is not implemented, even when the conferment of rights is explicit in letter and spirit. One of the major recommendations of the ‘Staying Alive’ report is that the Supreme Court judgment be reviewed, to restore the right to residence.
The number of cases filed in different states varies greatly. If 3,440 cases were filed in Rajasthan, Haryana had only 235 cases till July 2007. Manipur, Meghalaya, Nagaland and Arunachal Pradesh have none in the same period. Some states have figures varying from 5 to 65. These figures may or may not reflect levels of violence in the state against women. They may reflect a combination of higher levels of violence combined with greater awareness of the law. Certainly, in Rajasthan, that seems to be the case. The Northeast continues to use tribal customary forums and has not used the law. No data is available for UP, since the high court there did not send the information."
In the remaining part of the column, Jaisingh provides details of the contrasting attitudes of governments in Rajasthan and Andhra Pradesh to the Act, and how that plays a crucial role in influencing the manner in which the Act is implemented. She therefore concludes that
"freedom from violence in the private domain still remains a distant dream for women in domestic relationships, a year after this revolutionary law came into the statute books."
Monday, October 22, 2007
The courageous decision of the Supreme Court to reinstate the Chief Justice stands in contrast to past decisions in which the judiciary has “endorsed and abetted” military regimes in Pakistan. The role played by popular support for the dismissed Chief Justice has also provided a unique break with the traditions of a generally quiescent public. “This is the first time in the history of Pakistan that a strong people’s movement has taken shape and demands an independent judiciary.” [footnotes omitted].
Wednesday, October 17, 2007
I should also say that I am a strong believer in the right to scrutinize, evaluate, and criticise the role and record of our courts provided this right is exercised in a responsible and fair manner. It is true that our judges sometimes overreact and recklessly invoke their powers to punish for contempt. I have previously written on this subject in the Cochin University Law Review, where I strongly disagreed with the Court's approach in recklessly using its "constitutional" contempt jurisdiction in V.C. Mishra's Case (the decision was eventually overruled in a subsequent case). I also took great exception to the Court's reasoning on Roy's own contempt case, a decision that was so artfully dissected by Venkatesan in a previous post, and I'm distressed by the Delhi High Court's verdict in the Midday Case.
However, I do believe that any appraisal of the Court and the judges who sit on it must be fair and responsible. We must appreciate the fact that, unlike bloggers, columnists, law professors, and, dare I say, best-selling authors, our judges (with some notable exceptions including Justice Sabharwal it appears) lack the forum or the means to effectively respond to their critics. It is certainly appropriate to call individual judges and benches for their specific mistakes, failures, and follies in cases or controversies. But, as tempting as it may seem, I believe it is unwise and unfair to collectively malign an entire institution without adequate cause or justification for the shortcomings of a few. This belief is, perhaps, the underlying reason for my unease with Roy's piece as a whole, which I feel does not properly balance specific instances of the Court's failures, shortcomings, and overreaching from its solid achievements and noteworthy record in defense of our democractic values and system of governance. Now, on to Venkatesan's specific problems with my critique of the article.
First, Venkatesan says that, having read Roy's article carefully, he is "unable to cite even one sentence which could be described as 'sweeping denunciation' of judicial activism and PIL." I wonder if Venkatesan and I were actually reading the same piece. Although it is a rambling one, Roy's piece can be broadly divided into two parts. The first part of the article deals with judicial powers (and activism) and public interest litigation. The second part is about the Sabharwal controversy and its consequences. My assessment of Roy's views on judicial activism and PIL are based on the first part. In it, Roy states that "the higher judiciary, the Supreme Court in particular, doesn't just uphold the law, it micromanages our lives." She then goes on to cite a lengthy list of instances and examples of judicial micromanagement: dams, rivers, mountains, forests, streets, textbooks, and fines for traffic offenses. (This last item on Roy's list is a bit puzzling. Should'nt courts be involved in deciding fines for traffic offenses anyway? But I digress.) For this reason, Roy accuses the Court of turning itself into the "premier arbiter of public policy in this country that likes to market itself as the World Largest Democracy." (I'm still mulling over the precise implications of this beguiling sentence).
Roy then complains how PIL has given courts access to people and to issues outside its sphere of influence (here, Roy sounds oddly like Justice Hidayatullah, who disapproved of PIL when it first began in the early 80s). PIL, Roy argues, gave people access to courts. But it also did the opposite, i.e., gave the courts access to people. Thus, she asserts, PIL "made the courts as powerful as they are." She then points out that, through a series of judgments over 15 years, the judiciary "has dramatically enhanced the scope of its own authority." Read as a whole, this narrative seems to me to be quite a pretty sweeping indictment of contemporary judicial activism and PIL jurisprudence. I'm not sure how Venkatesan can conclude that the article does not reveal whether Roy is against "judicial activism and PIL." It is quite obvious from the text that Roy is no fan of either!
Second, Ventakesan suggests that I "assumed" that Roy was unaware of the history of PIL and the citizen movements it engendered. I "assumed" no such thing. If Venkatesan had carefully read my post, he would have noticed that I used the expression "unclear" to denote my anxiety about whether Roy fully appreciates the contributions of PIL to Indian jurisprudence. I made no assumption about the state of Roy's awareness. While I do think she has a reasonable amount of knowledge about PIL, I wonder why she has been selective in her assessment of it. Her discussion of the evolution of PIL and the accompanying increase in judicial power leaves the reader with the impression that the PIL movement contributed nothing worthwhile except for what Roy calls a "brief window of hope and real expectation" in the early days of the movement. Any dispassionate observer of Indian law would concede that this is an imprecise appraisal of PIL (even if that was not what Roy intended as Venkatesan seems to suggest).
Like other phenomena in Indian constitutional life, the PIL movement is a mix bag of judicial outcomes. While the movement certainly has some embarrasing episodes, like red lights for judicial cars (on which I wrote my first published article), even the most hardnosed cynic would be hard pressed to deny that PIL judgments have made landmark contributions in various fields, such as environmental protection, public health, and anti-corruption efforts. Surely, those contributions are worth something even if Roy believes that they ultimately contributed to an increase in judicial power.
Third, Venkatesan wants to know what elements of her piece are flatly inaccurate. Well, aside from what Dilip found in relation to Pasayat's judgment (and I leave it to Dilip to respond on that point), I found at least two significant inaccuracies in the article.
1. In her muddled paragraph on the unHindu rate of growth, the rule or law, and peoples' rights, Roy says that from the early 1990s, we have seen a systematic dismantling of laws that protect workers rights and the fundamental rights of ordinary people, such as the right to shelter, health, education, and water. I am unclear as to what laws Roy is referring to, and it is a pity that she does not offer any concrete examples. But if Roy demonstrated greater knowledge of PIL developments, she would have realized that that the "fundamental rights" to shelter, health, education, and water were only recognized as express constitutional freedoms in the early 1990s. So, it is hard for me to understand how laws protecting those fundamental rights could be dismantled in the early 1990s just as those rights were just being recognized in the first place. Furthermore, Roy conveniently omits to mention (or perhaps is genuinely unaware) that the rights she calls fundamental were recognized as such through a series of (you guessed it) PIL cases and by a judiciary that Roy accusses of having already embarked on the road to judicial absolutism.
2. Roy asserts that international financial institutions, such as the World Bank, require the repeal of laws relating to workers rights and fundamental rights as a "black and white" condition to sanction loans. I hesitate to write about the World Bank here because my participation on this blog is strictly in my personal capacity. However, since Roy expressly mentions the international financial institutions in her essay, I thought should make two brief points:
(1) In my experience at the World Bank so far, which includes working on several operations in India, I have not come across any instance of the World Bank imposing conditions in its loans that require the repeal of constitutionally guaranteed protections or rights, as Roy appears to allege.
(2) Roy is probably unaware that the term "structural adjustment" was replaced in August 2004 by the expression "development policy lending" to denote the World Bank's non-project-specific lending instrument.
Finally, I'm afraid I don't agree with Ventakesan's suggestion that Roy posits a distinction between the rule-of-law as a juridical concept and its application in practice. I can certainly envisage such a distinction, and I am aware that it has been observed previously, notably in apartheid-era South Africa. But I cannot find any evidence in Roy's article that the author intended to make such a distinction. Moreover, I am unconvinced that the concept of the rule-of-law has been systematically misapplied in Indian practice. Therefore, I am regretably unconvinced by Venkatesan's gratitious attempt to retroactively insert this distinction into Roy's piece.
But the reason why I mentioned the role of Law Clerks here is to raise the extent of their probable involvement in the writing of judgments. Are Judges alone responsible for their Judgments, in case if there are glaring factual and other flaws? As an analogy, I can cite the example of the Government suspending two ASI officials for allegedly misrepresenting the Government's intention in the affidavits in the Ram Setu case. In Judiciary, we cannot definitively say whether the Judges have received appropriate research assistance from competent people, and whether there is scope for improvement, because of the secrecy surrounding the institution of Law Clerks, and the very practice of writing Judgments. Is such secrecy justified? Well, I don't have any answers immediately.
But the answers are important, as I realised when I was reading the judgment delivered on September 11 by Justices Arijit Pasayat and Kapadia in the case concerning the dismantling of the hazardous Blue Lady ship at Alang (Research Foundation for Science T.N.R.P. vs. U.O.I.) The Judgment, written by Justice Kapadia, introduces a new concept of balance and principle of proportionality, in order to dilute the well-known Precautionary Principle governing the environmental jurisprudence all these years.
To my dismay, I could not find any basis for this new principle, beyond Lord Goldsmith's lecture reported in Stanford Law Review (Vol.59) and Justice Pasayat's own judgment in K.M.Chinnappa (T.N.Godavaraman Thirumalpad v. U.O.I.) in 2002. Both these, relied upon in the Sep.11 Judgment, are entirely irrelevant to justify Justice Kapadia's new thesis. To my surprise, I found that he also referred to Amartya Sen's book Development as Freedom, which he claimed, gives importance to the concept of balancing. Having purchased the book, published in 2000, especially to understand this judgment, I could not find any helpful references by Sen to the new concept.
The paragraph cited by Justice Kapadia is as follows:
“It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship.”
In that case, the petitioners wanted the Court to restrain the Kudremukh Iron Ore Company Limited from carrying out mining activity in the vicinity of Kudremukh National Park. After a lengthy discussion about the merits of giving primacy to environmental concerns in any project, Justice Pasayat, (who was a member of three-Judge Bench then) observed: The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public good and in public interest to encroach
upon the said resources.
The paragraph cited by Justice Kapadia comes after this. Indeed, these are the only two paragraphs in that lengthy judgment, which supports the so-called concept of balance. The three-Judge Bench in that case allowed the Kudremukh Iron Ore Company Limited to continue mining in the reserved area till 2005 in accordance with the recommendation of the Forest Advisory Committee, not on the ground of concept of balance, but on the plea that the committee was a statutory body, and that the Court should not interfere with its advice to the Government. In other words, Justice Pasayat’s observation in that case as carried in these paragraphs was just an obiter and they were not relevant to the Bench’s decision.
The larger question that the Sep.11 judgment raises is whether the Court has reversed the key milestones set by the Court earlier in environmental jurisprudence by diluting the precautionary principle, without any basis. The Court permitted the dismantling of Blue Lady on the specious reasoning that development and livelihood concerns take precedence over environmental principles, and with necessary safeguards, we could prevent damage to environment, without abandoning a project meant to provide livelihood. In other words, the Court has approved taking risks that could seriously endanger environment, with just a hope that human intervention would honour the commitments to fulfil the necessary safeguards or conditions, to minimise the risks.
Saturday, October 13, 2007
First, Vikram says she made sweeping denunciation of judicial activism and PIL. Having read her piece carefully, I am unable to cite even one sentence which could be described as "sweeping denunciation" of judicial activism and PIL. I don't think one could read in that article that she is against judicial activism and PIL in general. That would be over simplification. She is only critical of the manner the Judiciary of late has been handling PIL matters, which suggests that the Judiciary has been arbitrarily selective in delivering justice. Vikram is entitled to his view, that she is rambling, and unnecessarily acerbic. I would say it is justified, because it was meant to be a polemical piece. But "flatly inaccurate"? Vikram has not cited any examples of that in her piece.
Then, Vikram asks whether she is aware of the history of PIL and the citizen movements it engendered. What led him to assume that she is not aware of this? Does she have to demonstrate her awareness of this in this short piece? Similar assumption leads him to suggest that she is unaware of the position accorded to Rule of Law in our Constitution. She is only commenting on how Judiciary has approached the issue of Rule of Law in practice.
Dilip accuses her of distortion of Justice Pasayat's judgment. I thank him for the helpful reference to the relevant paragraphs of the judgment, which help us understand the context. But on reading those paragraphs, I only find that she is vindicated in her comment. Dilip says the paragraph she quotes is not the Bench's own view of the matter, rather a statement of the Expert's Committee's position. The full paragraph from the judgment which he cited can be attributed to the Bench, not to the expert committee. The Bench referred to the Expert Committee's recommendation in the first two sentences, and the last sentence. But the remaining part of the paragraph can certainly be attributed to the Bench. The Bench has clearly suggested that corporations and institutions cannot indulge in malpractice in getting the approval or sanction. What makes the Bench to assume that institutions which it has referred to cannot indulge in such malpractices? Are these institutions inherently incapable of indulging in such malpractice? The judgment selectively refers to only a few institutions. A full list of such institutions and an inquiry into how they secured sanction/approval can help to throw light on the Bench's hypothesis. Even if in this case, the Bench is correct, as a generalisation, it is certainly a weak proposition that a Bench can make to justify its order.
There could be criticisms against such a research on several counts, particularly because it goes contrary to conventional wisdom about SEBI’s success rate thus far. Analysts may well delve deep into the methodologies used in the study and other matters of minutiae and raise questions about conclusions arrived at (which is quite common with studies such as this). At a more fundamental plane, one may even attribute an element of bias to the results because the study represents a regulatory body judging its own performance.
However, on a positive note, SEBI’s effort emits a much large message – which is that it is important for regulatory authorities and other judicial or quasi-judicial bodies to conduct periodic soul-searching exercises to determine the quality of their own performance. It seems extremely rare for either administrative bodies or courts (both the lower judiciary as well as the High Courts) to analyse all orders passed by them and then determine how they have been dealt with by appellate bodies.
In this context, SEBI’s study is a good example for administrative authorities and judicial bodies to follow. Not only is it important to determine the success rate (in terms of percentage), but studies should include a detailed analysis of reasons why orders were overturned by appellate bodies. It is not uncommon to find that substantively robust orders by administrative and judicial bodies are set aside on procedural grounds (due to the oft-invoked failure to follow principles of natural justice). Detailed studies of orders would enable decision-making bodies to put in place systems and procedures to ensure that orders are not revoked on procedural grounds.
In order to preempt any allegations of bias, it may even be prudent for such studies to be outsourced to independent third parties. For instance, a law school or even a group of law students can be commissioned to undertake such a project. Studies should, as far as possible, be published (as in SEBI’s case) so that transparency is embedded into the process. However, there could be practical difficulties in cases where findings of studies are adverse, in which case there may be tendency to avoid publication – nevertheless, even in absence of publication, there needs to be proper processes whereby results are properly recorded and changes implemented to improve the sustainability of orders of the authority concerned.
Measures such as this would ensure efficient functioning of decision-making authorities (judicial and quasi-judicial) and would not only bring about certainty in the legal system, but also reduce cost and delays in the judicial system.
Friday, October 12, 2007
Prof.Amita Dhanda's review of the late Prof.S.P.Sathe's works and Soli J.Sorabjee's tribute to M.K.Nambyar, one of India's finest Constitutional Lawyers and legal luminaries are contributions, which I would regard as must-read. The other contributions in the inaugural issue would equally be regarded as a treat by co-bloggers. The inaugural issue can be accessed here.
Thursday, October 11, 2007
Ironically, judicial activism first rode in on a tide of popular discontent with politicians and their venal ways. Around 1980, the courts opened their doors to ordinary citizens and people's movements seeking justice for underprivileged and marginalised people. This was the beginning of the era of Public Interest Litigation, a brief window of hope and real expectation. While Public Interest Litigation gave people access to courts, it also did the opposite. It gave courts access to people and to issues that had been outside the judiciary's sphere of influence so far. So it could be argued that it was Public Interest Litigation that made the courts as powerful as they are. Over the last 15 years or so, through a series of significant judgements, the judiciary has dramatically enhanced the scope of its own authority.
I find some elements of the piece rambling, unnecessarily acerbic, and flatly inaccurate. It is unclear whether Roy is adequately aware of the history of PIL and the citizen movements it engendered. I, for one, believe that the enshrining of a fundamental right to education is a direct consequence of PIL developments. And I'm puzzled by Roy's attack on the rule of law, which is a basic feature of the Constitution. She offers this homily on jurisprudence without a basic understanding Indian legal catechism:
Today, as neo-liberalism sinks its teeth deeper into our lives and imagination, as millions of people are being pauperised and dispossessed in order to keep India's Tryst with Destiny (the unHindu 10% rate of growth), the State has to resort to elaborate methods to contain growing unrest. One of its techniques is to invoke what the middle and upper classes fondly call the Rule of Law. The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they're designed to protect. For instance, from the early '90s, we have seen the systematic dismantling of laws that protect workers' rights and the fundamental rights of ordinary people (the right to shelter/health/education/water).
But Roy does have the right to offer this critique. And like her other articles on the Court, I believe she makes an important contribution to public discourse about the law and legal system in India. I welcome thoughts from our contributors and readers.
Monday, October 08, 2007
The author compares political party regulation with SEBI and asks, whether it would be justified to expect the political class to enact a law to regulate themselves. But can the embarrassment in Karnataka be traced to absence of party reform as the author suggests?
Friday, October 05, 2007
Thursday, October 04, 2007
Perhaps the media’s behaviour only reflects the ominous silence of the Indian government on the issue, which has so far offered only a few wishy-washy statements on the developing crisis. C. Raja Mohan had an excellent column in the Indian Express (dated Sep 28) where he outlined the strategic considerations and calculations involved in the stance that
“In dealing with its neighbours,
The real policy question for
The policy change towards
Four days later, in the Express issue dated Oct 02, Shishir Gupta wrote a column which appears to be a direct response to Rajamohan’s argument as evident in its title: “
"Although the EU-US wants
… … … The UPA political leadership, in particular the Congress leaders, may privately be supportive of Aung San Suu Kyi and the monks now on Rangoon’s streets, but overtly it will have to deal with whosoever is in power; such is the security calculus.
An Express editorial dated Sep 24 (which urged proactive action not for reasons of morality but because not doing so will give
“the need for Burmese Army’s cooperation in dealing with the insurgencies in the Northeast, Burma’s natural role as a land-bridge to Southeast Asia, and the importance of preventing Burma’s total dependence on China for external support.”
One should probably add
Looking at the arguments which focus on short and medium term strategic interests, I for reminded of the arguments offered by governments which supported the apartheid regime in
To end, I want to recall a particularly evocative statement from PM Manmohan Singh’s Aug 13 speech in Parliament on the Indo-US nuclear deal. This is what he said:
“Finally, Sir, let me end by saying that we have achieved an Agreement that is good for
I do not quote this to reopen the debate over the Indo-US nuclear deal. I do so to make the point that if PM Singh’s government is genuinely concerned about the judgment of history and posterity, and if it wants to regain India’s “due place in global councils,” it will have to show that when called upon to do so, India can cast aside narrow short term gains, and indeed act against them to take on a leadership role on the great moral issues of our time. History usually remembers those actions where crucial figures act against their own interests to do the right thing.
Legal Researcher, Fundamental Rights
Center for Constitutional Law (“CCL”) is seeking applicants for the position of Legal Researcher on Fundamental Rights.
Description: This researcher in Center for Constitutional Law’s Fundamental Rights Division will be responsible for researching, monitoring and analyzing decisions of the various Indian courts that address Part III (Fundamental Rights) of the Constitution of India. In addition, this researcher will assist in developing and implementing a research and advocacy agenda focusing on Fundamental Rights. A primary objective of the research and advocacy will be to assist non-legal professionals (for example, journalists, political science academics, human rights activists) in understanding legal judgments that deal with Fundamental Rights. The primary responsibility of the legal researcher will be to write and publicize short reports and press releases (in non-legalese English) that outline the reasoning and significance of any legal decisions concerning Fundamental Rights.
Qualifications: The ideal candidate must have exceptional analytic skills, an ability to write and speak clearly in English, and a commitment to work in the field of Constitutional Law. LL.B. degree is required and an additional degree or prior work experience in international relations, journalism, political science, law (advanced degree) or social sciences is strongly preferred. All applicants should be proficient in computers.
Salary: CCL seeks exceptional applicants and offers a competitive salary.
PLEASE APPLY IMMEDIATELY by emailing to email@example.com in a single submission: a letter of interest describing your experience, your resume, and three references. Only complete applications will be reviewed.
Center for Constitutional Law is an equal opportunity employer that does not discriminate in its hiring practices and, in order to build the strongest possible workforce, actively seeks a diverse applicant pool.
Center for Constitutional Law is a Chandigarh-based monitoring and research organization that is committed to advance the understanding of constitutional law within the non-legal community of India, and therefore improve the quality of debate regarding constitutional issues in different public fora.