ICJ Nomination of Justice Dalveer Bhandari: Whither Indian Decision Making

Every few years, a political circus convenes at the United Nations to elect judges of the International Court of Justice. The process is politicized, and a failure to admit this would be naïve. At the same time, a running feature – common to all judges of the exalted ‘world court’ – has been a background, in the worst, and excellence, in the routine, in the field of international law, the substrate of the Court’s deliberations. Take the most recent addition to the Court’s celebrated list of members, Mr. Giorgio Gaja of Italy – previously an ad-hoc judge of the Court, member of the International Law Commission for two terms, Professor of International Law at the University of Florence and currently, Special Rapporteur for the second generation of the ILC’s work on responsibility.

I could reiterate the background of each judge presently at the Court to demonstrate a general standard of excellence in international law matters, but suffice it to say that the Statute of the Court itself labels them as the ‘highly qualified publicists’ (Article 38(1)(d)), accordingly rendering precedential value to their dissents.  

India has had its fair share of representatives at the ICJ; being one of twelve states with three of more judges at the Peace Palace. We were given the chance to build upon this impressive record a few months back, as political turmoil in Jordan led to the recall of Judge Al-Khwasaneh. This empty slot was filled by the General Assembly and Security Council in accordance with Article 4 of the ICJ Statute.

India, having offered its support to Jordan in the previous elections, was very well-placed to nominate a candidate to the ICJ, and so it did: Hon’ble Mr. Justice Dalveer Bhandari of the Supreme Court. Before I attempt to demonstrate the absolute absurdity attached to this choice, a little context would be helpful.

Candidates for the vacant post were invited by Security Council Resolution 2034 (2012), allowing recommendations to be made by National Groups in the Permanent Court of Arbitration. The Indian delegation at the PCA currently comprises retired Judges Kania and YK Sabharwal, along with senior advocate B. Sen (who themselves are required to have displayed a ‘known competency in matter of international law’). The final decision is left to this delegation, although Item 38 of the Third Schedule (under Rule 8) of the Government of India (Transaction of Business) Rules allows the Prime Minister’s Office to submit names for consideration. In this case, the PMO suggested Mr. P. S. Rao – former ad-hoc judge at the ICJ in the Malaysia-Singapore territorial dispute, member and Chairman of the International Law Commission, ex-chief of the Law and Treaties Division in the Ministry of External Affairs (as also principal legal advisor to that Ministry), member of the Insitut de Droit Internationale, Special Rapporteur for the ILC’s work on liability for a period of 9 years, agent for India at the ICJ in 2000, consultant for the WTO and so on.

Much to my shock, the Indian delegation at the PCA chose HMJ Bhandari for the post, overlooking Mr. PS Rao. At first instance, I told a friend, hoping to share my dismay. I was startled (at the time, though naively-so in retrospect) with his reply: “This is India– what did you think”. In my optimistic insistence that this was not (and could not) be the case, I began to rationalize this decision. Here’s what I found:

1.    Mr. B. Sen’s justification was this: “Looking at various criteria such as experience; a person who will be easy to get on international circle; good health and hard-working, we found Justice Bhandari the most suitable candidate among those who were interested”. He went on, maintaining the standard of coherence displayed in the earlier remark, “I have known him for many years, I knew he was a capable man”.

2.   In response to an RTI, the MEA had this to say: India’s “lobbying efforts and electoral strategy is essential a confidential process”, and thus, the question of why HMJ Bhandari was chosen lies outside the scope of the Act (CBSE v. Bandopadhyay, 2011, SC).

3.   Justice Bhandari’s background in international law and I quote from his profile on the Supreme Court website, which, due to the MEA’s reluctance remains our only source of information. (NOTE: appending the world ‘international’ to a domestic law project does not transform it into international law):

a.    Graduating in Humanities and Law on an international scholarship.

b.    Worked on an International Project “Delay in the Administration of Criminal Justice in India” sponsored by the United Nations.

c.    Executive Member of the International Law Association, India Chapter since 1994. Chairperson of the Delhi Centre of the International Law Association for several years.

d.    President, India International Law Foundation.

e.    A few references to Lectures delivered on Intellectual Property law, in “international fora”.

I will discard points (a), (b) and (e) summarily. Points (c) and (d) do seem to provide some justification for his nomination, but a closer look is more revealing: In this capacity as chairman and member of the ILA (a renowned institution engaging in the development of international law), HMJ Bhandari has neither researched upon, or written any substantive topic, discussion or paper on questions of international law through his tenure; although his count of Opening Speeches and Chief Guest mentions does merit a mention.

In fact, post-election, the Press Release by the ICJ (available here) itself, fails to list any reference to work done in the field of international law in a strong 9 page curriculum vitae. Instead, it includes references to Justice Bhandari’s judgment in Taj, several PIL matters dealt by him, an exhaustive list of lectures, and so on.  

With everything before us, the PCA delegation’s decision shocks me. We can always entertain a rationalizing exercise, to attempt to find a reason to defend HMJ Bhandari’s choice. But with an alternative in the frame of Mr. PS Rao, the futility of that exercise is evident. (this is capped by the MEA’s indefensible remark that a judge at the ICJ is to “above-all, protect national interests” (MEA, No. UI/551/06/2012)).

It pains to second-guess the choice of eminent jurists such as those currently occupying positions in the Indian PCA delegation, but the facts before us leave me no choice. For how else could one explain this absurdity? Perhaps, and I have encountered two particular replies frequently, this was a strategic decision and the final choice was based on considerations of ‘national interest’; or alternatively, the ‘Justice Bhandari is a really smart judge. He is very capable’ line of argument. I will explain why neither of these views is tenable: First, I do not deny the importance of political considerations, or larger questions of national interest. This, however, simply does not apply to this case because one, the decision here is made by the PCA Delegation (themselves in the dark about such national secrets as may influence these decisions), and not by the Government; two, the PMO itself recommended Mr. PS Rao; and finally, a Judge at the ICJ is not a national representative, but rather an independent legal functionary (a sequitur the MEA has sadly lost sight of).

Second, I do not doubt Justice Bhandari’s legal acumen. He is indeed a brilliant judge, a Judge of the Supreme Court of India no less. Neither am I in a position to comment on a Judge’s standing. Nomination to the ICJ, however, requires a smart and distinguished lawyer, a lawyer such as Justice Bhandari, who is ‘eminently qualified’ in questions of international law. While his standing in domestic law is undeniable, Government decision must be informed by reason and demonstrable rationale. The fact that Mr. Bhandari is in good health, or is hard-working, or that Mr. Sen has known him for several years as a capable man, quite simply does not meet the standard.

The law is a precise endeavour they say, and the same applies here – a judge may be well-versed with domestic legal traditions, but one assumes that a Judge at the International Court of Justice, the principal judicial organ of the United Nations, responsible for adjudicating on questions of international law (Article 38), would possess knowledge of international law! My tone, here, is not sarcastic, but one of exasperation, one that is repulsed by the closed-mindedness of the decision making process.  

But all set and done, I was asked a few days back: ‘Why do you care! As long as India has someone there …’ The question, here, is not just consequential – but rather, a thought that applies equally to all sectors of bureaucratic decision making in India; of focussing on the man, rather than his actions; his name, rather than his credentials; the form, rather than the substance. What strikes me is that such considerations are so overtly evident in the upper echelons of power, in decisions that expose India to the world.

India’s nomination was not uncounted though, with the Philippines nominating its Judge Feliciano – an international law jurist (to no one’s surprise, but perhaps the Indian PCA delegation) having chaired the WTO Appellate Body, and participated in several awards at the ICSID, ad-hoc investment arbitral tribunals amongst similar achievements. Oddly, I was glad that the Philippines had nominated an expert. In fact, a part of me hoped (against hope) that the Indian nominee is not elected, in the hope that this would reform, to whatever extent, the flawed fundamentals of decision making.

As I said, the process is political, and the General Assembly and Security Council were voting for the Indian candidate, rather than the particular individual. Indeed, given India’s recent resurgence in the international political sphere, the Indian candidate was extremely well-placed, and the record voting margin (122 in the GA, 13 in the SC) stands testament to this fact. In that sense, my post here serves no consequentialist purpose – but rather, is a thought of what could have been. 

I wish Justice Bhandari the best (as would all Indians), and look forward to reading his Separate or Dissenting Opinions. At the same time, his future actions as an ICJ judge should not exonerate the PCA delegation for its choice, and neither should his election.

In fact, in all probability, what compelled the delegation to disregard Mr. PS Rao’s nomination will remain a mystery. The only hope remains that this acts a wake-up call for the government, to introduce some coherence in its functioning; to infuse some logic into this madness.

(Guest Post by Raag Yadava, who is a student at the National Law School of India University, Bengaluru.)

Rahul Srivastava v. Union of India

Supreme Court yesterday dismissed the PIL filed by Rahul Srivastava, a student, questioning the continuance in office of  Justice Dalveer Bhandari, who has been nominated for the post of a Judge of the International Court of Justice. The hearing of the case has been covered in some newspapers today. (Another report is here.) The following is one more version of the proceedings, which is slightly different from what has been reported in the papers today. It may be read in addition to the newspaper reports. 


When Justice Kabir asked what was the public interest in the case, Prashant Bhushan, counsel for the petitioner explained that independence of the judiciary, according to the Advocates-on-Record judgment, required that there should be no interference from the executive in the matter of appointment of Judges. If that is so, how could a sitting Judge accept the help of the Government in actively canvassing support in the international fora for his judgeship in the ICJ was the question posed by Bhushan.  


When Justice Kabir did not agree with this argument, Prashant Bhushan said he realised that it was too late in the day to challenge Justice Bhandari's nomination, as the ICJ election was scheduled to take place the next day.  Therefore, he said he was keen on the second prayer of the petition, which wanted the court to lay down the norms for the future.  When Justice Kabir suggested  that he should then move a proper petition for the same, Bhushan insisted it was indeed a proper petition for that purpose.  If he moved a proper petition later, then the Court might say it was just an academic question; therefore, it was the right moment to examine this issue. Bhushan further suggested that the Court could adjourn the matter, rather than dismiss it.  At this point, it appeared as if Justice Kabir was favourably inclined to consider it. 


However, Justice Kabir made up his mind to dismiss it, when the Attorney-General Vahanvati reminded the Bench what signals it (the admission of the matter even for the future) would send to our efforts to elect Justice Bhandari the next day.  Bhushan then offered to withdraw the petition, because its dismissal would close the option of its being heard again later.   

An Era of Firsts

The website of the Supreme Court of India indicates that Justice Ranjan Gogoi was appointed to the Supreme Court on Monday, April 23, 2012. In my count, he is precisely the 200^th judge to be appointed to the Supreme Court of India – and in 2018, if everything else stays the same, and if the seniority norm remains sacrosanct, he will become the first judge from the Gauhati High Court, representing the North-Eastern states, to become Chief Justice of India [his profile has not been uploaded to the court's website yet, but media reports (see here, here, here, and here), and his profile on the website of the government of Assam, suggest that he was born in 1954, and was first appointed to the Gauhati High Court].

For the court, this seems to be an era of firsts, especially in terms of its inclusiveness – a high priority item for judicial appointments to the Supreme Court. It’s the first time two women (G.S. Misra, R.P. Desai) are serving on the court simultaneously. In 2009, Justice K.G. Balakrishnan became the first "backward" caste CJI, also the first CJI from the state of Kerala. It can be conjectured - although there are no publicly available data that support this claim - that three Muslim judges are serving on the Supreme Court of India simultaneously at present, a rare occurrence - perhaps the first of its kind. Only three other states, whose High Court judges have been appointed to the Supreme Court, have not yet had a Chief Justice of India to their credit: Andhra Pradesh, Rajasthan, and Himachal Pradesh. However, other things remaining the same, in 2014 Justice R.M. Lodha will become the first Chief Justice of India from the state of Rajasthan. So far, no judge has been appointed to the Supreme Court of India from the states of Sikkim, Chhattisgarh, Uttarakhand, or Jharkhand, so naturally, none of these states have had Chief Justices of India to their credit yet. The highest number of Chief Justices of India (together, nearly half of all the CJIs so far) have come from the states of Maharashtra, West Bengal, and Uttar Pradesh. The discerning reader will hopefully observe that I make no normative claims about the inclusiveness of the court, and leave that debate for another day. 

Incidentally, the Supreme Court’s present Chief Justice, S.H. Kapadia, is the first CJI to have been born in independent India, and his term perhaps signals the start of a new generation of Chief Justices. 

Some Reflections on Clerkships in the Indian Supreme Court

In recent years, the Supreme Court of India has gradually scaled up the practice of recruiting recent law graduates to serve as research assistants under the sitting Justices. The notification inviting applications for these ‘Law Clerk-cum-Research Assistant’ positions is usually sent to law colleges in December each year and students in their final year of legal studies (both LL.B. and LL.M. programmes) are eligible to apply for the same. As per the present practice, the Registry of the Supreme Court invites the short-listed applicants for an interaction with a committee consisting of two sitting Justices (usually in April or May) and the chosen applicants are then assigned to work under a sitting Justice. While law clerks usually serve for nearly a year (the cycle running from July to May) there have been instances where some have worked for longer or shorter periods with the consent of their supervising Justice. To take my own example, I served as a law clerk under the then CJI K.G. Balakrishnan for nearly two years, i.e. between July 2008 and May 2010. In this note, I would like to offer a few reflections on my clerkship experience with the hope that they might be of some use to those considering this as a transitory option before making definitive career choices.

From the perspective of law students, one of the tangible incentives for applying for clerkships is to boost their chances of pursuing higher studies at prestigious foreign universities. Some others apply with the hope that the clerkship experience will enable them to gain a better understanding of the judicial process before making a foray into litigation. While it is an oversimplification to view this option in purely instrumental terms, the above-stated motivations cannot be dismissed since pursuing a clerkship entails some opportunity costs especially when compared to other lucrative options in the legal services market. Needless to say it is up to the individuals involved to extract the most value from their short period of service. It is undoubtedly a great opportunity to observe the nuances of appellate litigation, decision-making and the institutional structure of our apex court.

Those who are familiar with the scheduling of cases in the Supreme Court are well aware of the fact that most of the Justices’ workload is attributable to the preparation required for initial hearings in cases (‘miscellaneous matters’) that are usually listed for Mondays and Fridays every week. On average, each bench has to process nearly 40-50 freshly instituted matters every week. It goes without saying that this is a laborious task that requires immense concentration and attention to detail. A large portion of the miscellaneous matters filed in the Supreme Court are dismissed at this preliminary stage, either without assignment of reasons or by way of short orders. It is only a relatively small portion of these miscellaneous matters which are admitted for a subsequent hearing on merits (‘regular hearing matters’). Even though the decision-making at this stage is made after hearing brief submissions by the lawyers appearing in Court, the Justices usually make up their minds about the merits of the case during the preparation time itself. It is in this context that the law clerks can be relied upon to prepare summaries of the materials on record and short memoranda on the contentious issues. Furthermore, the written submissions made by the parties at this initial stage are usually not very well fleshed out and hence the Justices can profit from able research assistance, especially to verify and search for applicable principles and precedents. While most Special Leave Petitions (filed under Article 136 of the Constitution) are easily dismissed for raising frivolous questions, occasionally the Justices encounter cases that frame important legal questions. It is mostly the cases of the latter variety that are admitted for hearings on merits.       

Apart from freshly instituted matters, there is also scope for reliance on law clerks when it comes to the regular hearing matters that are usually listed on Tuesdays, Wednesdays and Thursdays. At this stage, the lawyers appearing on behalf of the interested parties are involved in extensive oral arguments before the respective benches and the same are further supported through written submissions. While this is not the proper forum to comment on the inefficiencies of the current institutional practices pertaining to regular hearing matters, it will suffice to say that Justices usually gather enough material from the submissions made by the parties. In the process of writing substantive judgments, most of our Justices are also conscious about confining the basis of their decisions to the materials submitted during the hearings. Unlike Constitutional Courts in some foreign countries, most judges in our appellate courts are less likely to pursue their own research and rely on materials other than those cited by the lawyers who have argued before them. However, some Justices have been known to ask their assistants to prepare first drafts or notes on contentious questions. The involvement of law clerks in the preparation of substantive judgments can prove to be a game changer since they are more likely to consult academic writings as well as precedents from other jurisdictions that might have escaped the attention of those who have argued the case. In this sense, the generational difference between the Justices and their law clerks also corresponds to increasing familiarity with a wider array of resources for legal research. Law clerks are far more likely to be adept at using electronic databases for locating commentaries and precedents. At the same time, the expansion of inputs into judgment-writing can also attract the skepticism of practicing lawyers who might feel shortchanged if judgments travel beyond the submissions and cite materials that the latter are not familiar with. Regardless of such apprehensions, it must be reiterated that while the substantive decision-making is necessarily informed by the accumulated experience of the judges in each bench, the involvement of much younger research assistants in screening documents and submissions has created considerable efficiency-gains vis-à-vis preparation time as well as disposal rates. It would indeed be futile and counterproductive to point to the involvement of law clerks as a cause for concern about the quality and integrity of decision-making by our apex court.   

Law clerks are also frequently asked to prepare speeches or notes when Justices are invited to make presentations at academic conferences and public lectures. Most of these extra-judicial statements tend to dwell on themes such as improving access to justice, bench-bar relations, legal aid and the promotion of dispute-resolution methods such as mediation. The channels for learning are of course not confined to the tasks mentioned above. Apart from the broader understanding of judicial process, the clerkship experience also exposes one to institutional processes such as those related to filing of cases, listing of matters, the perceived impact of bench-composition on decision-making and the different methods of case-management adopted by the respective benches. The multi-bench structure of our Supreme Court has led to the creation of institutional dynamics that are quite distinct from apex courts in other countries which either tend to sit en banc (i.e. all judges sitting together to decide a case) or have fewer panels. Furthermore, there are also numerous opportunities to observe the country’s most prominent lawyers as they present arguments.

Unlike their contemporaries who begin as apprentices under established lawyers, law clerks usually do not have to face the unpredictable behaviour of clients and fellow lawyers involved in a case. While handling such uncertainties can be glorified as a rite of passage for a budding litigator, law clerks have to negotiate their way through the labyrinthine bureaucracy of the Court as they interact more closely with the personal staff at the residential offices of the Justices. Once in Court, law clerks often find themselves interacting with the security personnel and the staff at the judges’ library, often with comical consequences. Irrespective of these differences, clerkships offer the opportunity for deep and sustained engagement with cases that are heard on merits. Unlike a legal scholar who usually has to confine his/her analysis to the reading of the eventual judgment, a law clerk gets to see the records from the lower courts, the inputs made by the counsels for the interested parties, the courtroom dynamics and often gets to contribute to the decision-making process. All in all it is an experience that I would highly recommend for those interested in studying our judicial system in the long-run.

Guest Post by Sidharth Chauhan, who is currently a lecturer at the National Law School of India University in Bangalore. A longer version of the piece appeared on the blog, Bar and Bench.

  

Operation Polo: The Forgotten Massacre in Hyderabad?

I came across this disturbing bit of history (hitherto unknown to me) while reading William Dalrymple's The Age of Kali. It relates to the Indian Army's 'Operation Polo' in 1948 to end the resistance in Hyderabad and assimilate the kingdom into the Union of India. Allegedly, the Operation was accompanied by serious atrocities (including murders and rapes) of thousands. This is what Dalrymple has to say (pp 209-210):

I discovered later that it is in fact possible to make an informed estimate of the numbers killed in the aftermath of the 'police action'. For when reports of atrocities began to reach Delhi, Nehru 'in his private capacity', commissioned an unofficial report from a group of veteran Congressmen made up of two Hyderabadi Muslims who had prominently opposed the Nizam's rule and chaired by a Hindu, Pandit Sunderlal. The team made an extensive tour of the State and submitted their report to Nehru and Sardar Patel in January 1949. The report's findings were never made public, however, presumably because of its damning criticism of the conduct of the Indian army. It remained unpublished until a portion of it, smuggled out of India, recently appeared in America in an obscure volume of scholarly essays entitled Hyderabad: After the Fall.

The report, entitled On the Post-Operation Polo Massacres, Rape and Destruction or Seizure of Property in Hyderabad State, makes grim reading. In village after village across the state, it meticulously and unemotionally catalogued incidents of murder and mass rape, sometimes committed by troops, in other cases committed by local Hindu hooligans after the troops had disarmed the Muslim population. A short extract, chosen at random, gives the general flavour:

"Ganjoti Paygah, District Osmanabad:There are 500 homes belonging to Muslims here. Two hundred Muslims were murdered by the goondas. The army had seized weapons from the Muslims. As the Muslims became defenceless, the goondas began the massacre. Muslim women were raped by the troops. Statement of Pasha Bi, resident of Ganjoti: the trouble in Ganjoti began after the army's arrival. All the young Muslim women here were raped. Five daughters of Osman sahib were raped and six daughters of the Qazi were raped. Ismail Sahib Sawdagar's daughter was raped in Saiba Chamar's home for a week. Soldiers from Umarga came every week and after all-night rape, young Muslim women were sent back to their homes in the morning. Mahtab Tamboli's daughters were divided among Hindus, one is in Burga Julaha's home... "

And so on, for page after page. In all, the report estimates that as many as 200,000 Hyderabadi Muslims were slaughtered in the aftermath of the 'Police Action': an astonishing figure which, if true, would turn the 'police action' into a bloodbath comparable to parts of the Punjab during Partition. Even if one regards the figure of 200,000 dead as an impossible exaggeration, it is still clear that the scale of the killing was horrific. Although publicly Nehru played down the disorder in Hyderabad, claiming to the Indian representative at the United Nations that following the Nizam's officials deserting their posts there had been some disorder in which Hindus had retaliated for their sufferings under the [Muslim] Razakars [militia], privately he was much more alarmed. This is indicated by a note Nehru sent to Sardar Patel's Ministry of States on the 26th of November 1948, saying that he had received reports of killings of Muslims so large in number 'as to stagger the imagination' and looting of Muslim property 'on a tremendous scale' - all of which would seem to confirm the general tone of Pandit Sunderlal's report.

I also discovered this blog post discussing the massacres. I wonder whether this episode is already better known than I think, and I have just been too late to find out about. In any case, I could not locate the Sunderlal Report 'On the Post-Operation Polo Massacres, Rape and Destruction or Seizure of Property in Hyderabad State'. If it is not yet public, surely the government is bound to disclose it if an RTI application is filed, even if it was commissioned by Nehru 'in his private capacity'? Is the note he sent to Patel publicly available? Surely we need to know - the large-scale involvement of the state troops actively involved in the killings, if true, would put this case in a very different category from cases where the state 'merely failed' to protect the victims.

Continuing commentary on the RTE Act and SC judgment

I worried that the round-the-clock coverage of Agni V would detract from the much needed focus on the RTE Act, but today's papers provide some reassurance on this score.  The Hindu features an insightful op-ed by Professor Krishna Kumar, a former Director of the NCERT.  After endorsing the approach of the majority judgment, Kumar focuses on the perspective of teachers:

"For well over a century, India has treated its teachers like messengers who need not know or understand the message themselves. They occupy the lowest rung in the ladder of authority and status in the system of education. The younger the age-group they teach, the lower their own status and salary. That is why the nursery teacher has no status at all, and no university-level training course, which might explain why certain practices are good and others are bad, exists for nursery professionals.

Primary level teaching is similarly regarded as a drill devoid of intellectual effort. Delhi University stood alone when it started offering a four-year course called Bachelor of Elementary Education (B.El.Ed.) in the 1990s. Though this course has produced outstanding teachers, the Delhi government still denies them the status of trained graduate teachers. In its recent verdict, the Supreme Court characterised education “as a process involving many actors,” starting the list with “the one who provides education,” namely, the teacher. The list then goes on to include the owners of institutions, parents, the child, society, and the state. This clarity of analysis runs through the entire verdict which should become a compulsory reading for administrators and teachers alike if RTE is to reach its ambitious goals."

Kumar addresses the concerns raised by owners of unaided educational institutions and concludes as follows: 

"Indeed, this may provide to private schools an opportunity to set their own priorities in order. Over the last few decades, a culture of extravagance has engulfed many of India's elite private schools. Many private schools now uninhibitedly flaunt their five-star luxuries, ranging from expensive furniture and marble floors to air conditioning and CCTVs. When you visit one of these schools, you wonder whether you are in a hotel. Their plea for sympathy over the inadequacy of state subsidy for 25 per cent free seats is a bit cloying.

It will be nice if they shift their anxiety to the challenges that RTE throws at everyone concerned with children's education — teachers, trainers, parents, state and society. For teachers, the critical issue is to absorb the new curricular and pedagogic perspective which focuses on learning in place of marks. RTE asks for continuous and comprehensive evaluation, and a ban on corporal punishment and private tuition. These are tall demands and our systemic preparation to meet them has barely begun. Search for short cuts has ominously surfaced in matters like the selection of distance education for teacher training and dependence on NGOs for monitoring. The state and the university system cannot any more neglect the task of regulating teacher training institutes, most of which are now in the private sector."

The need for concerted action by a host of actors has been emphasised by other commentators.  Writing in the Hindustan Times a few days ago, Vaibhav Purandhare emphasised what parents will have to do on their part: 

"But it is not these questions of logistics that will hold up the Act; answers to them can be found, after consultation with all groups involved (Mumbai, in fact, has an excellent model of egalitarian education in the form of many Jesuit institutions). It is the attitudinal approach that's the key to ensuring integration, and this approach begins, develops and ends at home.

Young parents have been brought up in an environment in which the idea is to compete stiffly, get ahead of others and emphasise the distance travelled from others in terms of social, educational and economic status to the extent possible. Having itself exploited the benefits of free, state-sponsored education, this class abuses Nehruvian socialism which, in the first place, gave their families a toehold in society and helped them create the groundwork for all the success ahead. Will this class, which gives its children iPads and all the new toys to hit the market, also tell them that those who do not have iPads are equals and must be treated as equals? Will parents tell their kids that we ourselves, too, were, not too long ago, in the same situation that the poor are in today? Will Mumbai's even older privileged classes, who are loath to share their elite clubs and gymkhanas with the rest of society, not resist this invasion of their world? And will we, having moved as a society from the deification of poverty to the other extreme of vilification, not commit the crime of patronising the kids who will come to our schools in an attempt to show ourselves as civilised?

Worrying as the prospect is, here is also an opportunity for a genuine social revolution. What we could do not do in the 65 years since Independence, we could do in just a few years if parents approach this revolution in schooling correctly. We could take a leap from feudalism to democracy, from an essentially unequal society to a genuinely transformative one, and we can bridge the gap between Bharat and India Shining. Such an opportunity to wipe out inequality, at least to some extent, does not present itself to all generations."

Further analysis of the RTE judgment

Anup's stimulating post on the RTE judgment sets out some of the salient issues at stake, and has initiated a discussion on what is likely to be regarded as a significant case in Indian constitutional jurisprudence.

This post on the PRS blog provides some more basic information about the judgments delivered in the case. Today's Indian Express features a column by Pratap Bhanu Mehta which analyses the judgments in part. However, I think it fair to say that Mehta's analysis focuses less on the reasoning of the judgments, and more on the practical issues and the political economy that underlie a discussion of the legal issues at stake. Indeed, Mehta's claim is that the judgment is poorer for not focusing on the "real issues" at stake in the debate. Rajeev Dhavan's analysis on the judgment is available here on the India Today website. His reasoning seems cryptic at times, but fits with Mehta's analysis with a focus on the practical impact of contemporary policies of education.

Guest Post from Anup Surendranath: Evaluating The Right to Education Judgment

In the Society for Un-Aided Private Schools of Rajasthan v. Union of India, the Supreme Court has by a majority of 2-1 upheld the constitutionality of The Right of Children to Free and Compulsory Education Act, 2009. Chief Justice Kapadia Justice Swatantra Kumar formed the majority and Justice Radhakrishnan dissented. The central issue before the Court was whether the State, under s.12(1)(c) of the Act, could require unaided schools (minority and non-minority) to set aside 25% of their seats for children between 6-14 years from disadvantaged sections. All 3 judges agreed that such a requirement on unaided minority schools violated the protection granted to religious and linguistic minorities in Article 30(1). On the question of whether it would be constitutional to impose such a requirement on unaided non-minority schools, the majority found it to be permissible whereas Justice Radhakrishnan declared that a such requirement violated Article 19(1)(g) of the Constitution.

The manner in which the two opinions reach their respective conclusions on unaided non-minority schools is fascinating and I hope to briefly discuss some of those themes in this post.

1. Could the State have imposed this requirement on unaided non-minority schools through an ordinary law?

It is on this point that the disagreement between the majority and minority opinion is at its sharpest. Justice Radhakrishnan is of the view that since the scope of the protection enjoyed by unaided institutions under Article 19(1)(g) was clarified by a 11-judge bench in T.M.A Pai before the 86^th Constitutional Amendment was passed by Parliament, the absence of a specific provision in Article 21-A giving the State such a power would preclude the imposition of the 25% requirement through an ordinary law.

The response of the majority, speaking through Chief Justice Kapadia, is that the judgment in TMA Pai cannot be used for such a reading because it was a decision that defined the scope of Article 19(1)(g) in the context of reservations in private higher education institutions under Article 15. The relationship between a law enacted under Article 21-A and Article 19(1)(g) according to the majority cannot be controlled by the interpretation given in TMA Pai.

The legislative history of Article 21-A finds prominence in Justice Radhakrishnan’s dissent. Indira Jaisingh argued that the removal of the specific provision [draft Article 21A-3] that prohibited the State from imposing any obligation on unaided schools was indicative of Parliament’s intention. Justice Radhakrishnan’s argument is that Parliament’s decision not to include a specific provision giving the State the power to regulate unaided non-minority schools in such a manner in light of the decision in TMA Pai leads to the opposite conclusion.

2) 25% of seats as a condition for recognition of schools.

For the majority, it is a reasonable restriction in the interest of the general public for the State under Article 19(6) to require schools to set aside 25% of their seats for children from disadvantaged section as a condition for granting recognition. However, for Justice Radhakrishnan it is impermissible to attach such conditions for granting recognition. Though the decisions in TMA Pai and Inamdar certainly permit the State to regulate certain matters in unaided non-minority institutions through the process of granting recognition, the requirement in the Right to Education Act, 2009 certainly falls outside the scope of such permissible regulation.

3) Nature of Balancing

The nature of balancing in the majority’s opinion between the mandate of the State to enforce the right to education under Article 21-A and the rights of the schools before the Court under Article 19(1)(g) leaves much to be desired. The majority opinion states that requirement to admit 25% of Class I students from disadvantaged sections cannot be seen as a constitutional transgression because the aim is to remove barriers for children who cannot access schools and not to restrict the freedom guaranteed under Article 19(1)(g). It does not tease out the implications for balancing the rights in question when stating that the Court is taking a child-centric approach in this case while it was an institution-centric approach in TMA Pai and Inamdar. It certainly does not explain why the State has greater lee-way in restricting the freedom under Article 19(1)(g) while providing for special measures in the context of primary education (to a wide range of beneficiaries) than when trying to provide reservations for OBCs and SC/STs in unaided higher educational institutions in the pre-Article 15(5) days. Undoubtedly a constitutional response can be constructed but unfortunately the majority opinion does not offer it.

4) Horizontal Application of Rights and the Use of Comparative Materials

One of the central concerns in the case was whether the State could not transfer its obligation to provide free and compulsory education to private parties. Justice Radhakrishnan refers to the arguments raised on the horizontal application of rights in the Indian Constitution and the State having the power to place such a requirement on private parties through a combined reading of Articles 21-A and 15(3). Justice Radhakrishnan is of the view that there can be no positive duties imposed on private parties in the realisation of socio-economic rights and the role of private parties is limited to negative duties to not infringe or take away the guaranteed rights. In support of his argument that the positive obligation to implement socio-economic rights is solely on the State, Justice Radhakrishnan draws upon the Supreme Court’s jurisprudence on the right to food, health, shelter etc. in addition to foreign cases like Soobramoney, Grootboom and TAC from the South African Constitutional Court and the decision of the Tribunal Supremo de Venezuela in Cruz del Valle Bermudez.

The majority, however, is of the view that since the text of Article 21-A contemplates the enforcement of the right to primary education through a law, the State has the power and the discretion to determine the contents of the law, subject to satisfying the test of reasonableness. For the majority, the Act clearly satisfies the test of reasonableness under Articles 19(1)(g) and 14, and therefore there is no obstacle in placing a positive obligation on a private party while realising the right to education.

I do hope that we will have the opportunity to discuss these and other aspects of the case in far greater detail in the coming days.

Houses for Brahmins, Marrying Specially and Apolitical Politics

Three issues we like to track on this blog:

1. Housing discrimination: This advert has sparked some debate on the internet. It has an image of a billboard advertising flats 'only for Brahmins'. Regular readers will know that our country still shamefully permits housing discrimination on the grounds of religion. However, section 4(viii) of the Protection of Civil Rights Act 1955 prohibits the enforcement against any person of any disability with regard to 'the construction, acquisition, or occupation of any residential premises in any locality, whatsoever' on the grounds of untouchability. The problem is that while a housing society only for Brahmins may be inspired by untouchability, because it exlcudes not just dalits but also other 'touchable' castes, it may not be caught by this provision. From a plain reading of the statutory provision, our law seems to prohibit discrimination on the grounds of untouchability, but not caste or religion per se. Do readers know of any judgment which has expanded the scope of this provision?

2. Special Marriage Act: Arun had done a fantastic post on the problems with the Special Marriage Act, and how interfaith and irreligious couples find it difficult to navigate its bureaucratese. It seems the government may finally be moving to fix the problem and simplify the process. Let us keep our fingers crossed.


3. Apolotical Politics of Team Anna-Kejriwal: I have expressed sceptical views about the movement against corruption earlier on this blog. In this well-written piece, Mathew Idiculla explores the politics of being anti-political and the dangers it poses to democracy.

Indian Litigation Rates as a Measure of Well Being

I co-authored this paper with Ted Eisenberg and Sital Kalantry (both Cornell Professors) entitled "Litigation as a Measure of Well Being: The Threat of India's case backlog" that is just up on SSRN. It was profiled in today's Mint and the Wall Street Journal Blog. Building off the work of Menaka Guruswamy and Aditya Singh, and Kannan Kasturi, we show that counter to the common idea that more litigation is a bad thing that at least in India it is actually a sign of development. We demonstrate that Indian states with higher civil litigation rates also generally have higher GDP per capita. In fact, a state's Human Development Index score correlates even better with higher litigation rates. In other words, high litigation rates in India are a sign of prosperity and overall well being, not a sign of societal decay.

However, we also demonstrate that the growth of litigation in India is potentially being threatened by backlogged courts. Courts with higher backlog have had proportionately less growth in litigation rates, and overall litigation rates do not seem to be rising as one would expect with the country's growth. If further economic growth requires efficient courts, India may be in trouble.

Shedding Light on India's Rulemaking

In today’s Business Standard, I have this piece which argues the current system for creating rules and regulations in India is dysfunctional – leading to inefficiency and corruption, as well as potentially undermining civil liberties. To help remedy this problem it proposes making the rulemaking process more transparent, encouraging public participation, and creating an independent auditing body to run cost-benefit analysis on proposed rules.

Rulemaking affects almost every facet of Indian public policy, and yet receives relatively little sustained attention from the press or the Indian academy. India does seem to be undergoing an administrative law revolution (from the right to information act to the lok pal bill), systematically reconfiguring the relationship between citizens and the state. Rulemaking should not be overlooked.