Wednesday, September 28, 2005

Ramachandra Guha on Amartya Sen and Andre Beteille

Ram Guha is clearly one of the leading Indian public intellectuals of our times. His thought-provoking, insightful, historically grounded, superbly researched, and often provocative columns and articles on various subjects are invariably something to look out for. Though he is sometimes unpredictable (recall his unseemly attacks on Arundhati Roy and William Dalrymple), Guha's pieces are usually models of clarity, moderation, and craftsmanship. His recent piece in The Telegraph chronicling the lives and scholarly contributions of Amartya Sen and Andre Beteille is a good example of his brand of scholarship. Describing the two personalities as "the finest, and I think also the most honourable, intellectuals of our land in our time", Guha provides an affectionate yet well-reasoned assessment of two very distinguished Indian academics. The spectacular contributions that these two academics have made, both in their own fields as well as to the world of academic research more generally, must serve to inspire legal academics to produce scholarship which has a genuine and sustained impact on society.

Tuesday, September 27, 2005

The debate over the true author(s) of the 'basic structure' doctrine

The Basic Structure doctrine is, as all Indian law students know, one of the fundamental pillars of Indian constitutional law, and is perhaps the most distinctive (as well as most written about) aspect of constitutionalism in India.

There has been considerable debate over the issue of the true author of the doctrine. The dominant perception in contemporary times appears to be that this honour belongs to Nani Palkhivala, one of independent India's most eminent lawyers. Palkhivala was the lead lawyer for the petitioners in Kesavananda Bharati v. State of Kerela (1973), and did in fact argue for an implied limitation on Parliament's amending powers. In his words,

"Parliament had no power to destroy or impair the essential features, the basic elements or the fundamental principles of the Constitution. ... ... ... It is clear beyond doubt that one of the well-settled meanings of the word "amend" is that which would preclude the power to alter or destroy the essential features, the basic elements, the fundamental principles of the Constitution; and it is submitted that the word "amendment" bore that meaning in Article 368." (Note that Palkhivala didn't use the phrase "basic structure", preferring to use the terms "essential features", "basic elements" and "fundamental principles" of the Constitution)

Palkhivala famously went on to argue that "Article 368 should not be read as expressing the death-wish of the Constitution or as a provision for its legal suicide."

Fortunately, the full text of Palkhivala's written submissions to the Supreme Court are now available online, and they make for fascinating reading. The arguments marshall a number of separate but linked threads, and draw upon, among others, a close reading of the text of the constitution, the drafting history of the constitutional text, arguments from comparative constitutional law (referring to English, American and Australian cases and statutory/constitutional law) as well as earlier precedents of the Indian Supreme Court. What is striking is the use of simple, clear language, even in an area which is so ridden with legalese and jargon. The sentences are short, and employ words that are often stirring and powerful. This is a style which deserves to be studied and emulated, both in academic scholarship as well as in briefs submitted to courts.

Many leaders of the Indian bar assert that Palkhivala should be given credit for creating the doctrine of basic structure, as is reflected in a recent book consisting of essays in honour of Palkhivala. In his contribution to the book, Ashok H. Desai contends that Palkhivala "propounded" the doctrine of basic structure which, according to him, remains Palkhivala's "abiding contribution to our law and, indeed, to international constitutional jurisprudence." Yet another figure who has for long followed the Supreme Court - Arun Shourie - appears to endorse this view in a lecture delivered in January 2005. T.R. Andhyarujina notes that when Indira Gandhi sought to review Kesavananda, and Chief Justice Ray dutifully convened a 13-judge bench for this purpose, it was Palkhivala's passionate and vehement defence of the doctrine of basic structure over two full days which led to the dissolution of the bench and the dropping of the review. This would suggest that regardless of Palkhivala's role in enunciating the doctrine, his contribution towards preserving and establishing it within Indian constitutional jurisprudence, was enormous.

There are, however, other claimants to this distinction. In his tribute to Prof Dieter Conrad, formerly Head of the Law Department, South Asia Institute of the University of Heidelberg, Germany, A.G. Noorani traces the history of the doctrine to the theory of implied limitations that was first argued by M.K. Nambyar in the Golak Nath case (1967), the predecessor to Kesavananda. Noorani narrates how Nambyar had based his arguments in the Golak Nath case upon a reading of a lecture delivered by Prof Conrad in 1965 to the Law Faculty of the Benaras Hindu University. Most significantly, Noorani notes that in Justice Khanna's crucial opinion in the Kesavananda case (which is generally regarded as the tipping point which led to the creation of the doctrine of basic structure), the following words of Prof Conrad are cited with approval:

"Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority."

(An aside: Noorani goes on to relate how the doctrine of basic structure has shaped constitutional politics in Bangladesh and Pakistan, and points to a tragic aspect of South Asian legal studies: "There is a sad void in our academia. There is no institution which informs us of legal developments in neighbouring countries")

It would thus appear that, as is usually the case for any successful project, there are many who can rightfully claim authorship for the doctrine of basic structure. Based on this post alone, the people who form a vital part of the chain of authors are: M.K. Nambyar, Dieter Conrad, Chief Justice Subba Rao and other judges in the majority in Golak Nath, Nani Palkhivala, and Justice Khanna and the other judges in the majority in Kesavananda. Perhaps a more fruitful task for constitutional scholars would be to explore other figures and conceptions which influenced the creation and further development of the doctrine of basic structure from its inception in 1973 to its current manifestation.

Thursday, September 22, 2005

Implementing the Right to Information Act in India

The recent enactment of the Indian Right to Information Act, 2005 was rightly celebrated, coming as it did after a long struggle which saw many disparate groups of actors collaborating in creative and fruitful ways.

However, getting the Act passed is only part of the struggle, and the far bigger challenge, as activists involved with this issue for long know, is the task of implementing the new statute. Writing on a different (though perhaps more topical) issue in today's Indian Express,
K. Subrahmanyam notes the many factors which will impede access to information about crucial issues in India.:

"One of the reasons why our politicians are refusing to declassify documents more than 30 years old as is done in other countries may well be that secrets of the type disclosed in the Mitrokhin Archives may tumble out. In a country where there is continuity of leadership in parties over decades[,] the present generation of leaders has a stake in keeping the secrets of previous generations. If they are continuing in the same old ways — which probably they are — they do not want to create any precedents by disclosing state documents more than 30 years old. But such a shortsighted attitude will not prevent our secrets coming out into the open when other countries declassify their papers."

Returning to the issue of the implementation of the Right to Information Act, Mandakini Devasher of the
Commonwealth Human Rights Initiative (CHRI) has recently authored an excellent comment on the immediate challenges that government officials and civil society organisations will have to confront. After detailing these specific issues, she concludes:

"The Right to Information Act 2005 is a landmark piece of legislation. If implemented well, it could be a major step towards more accountable and transparent government. However, it is imperative to recognise that the road to implementation is a long one and there will be many hurdles and roadblocks yet. With proper governmental support and a willingness to adapt, it is a golden opportunity for India to end the culture of governmental secrecy and fulfil its potential as a truly great democracy."

The CHRI website has additional documents on the Right to Information, as well as other interesting legal issues classified under the heads of "access to information" and "access to justice".

Monday, September 19, 2005

Recent Outlook pieces on legal issues

Outlook magazine has always carried interesting pieces on legal issues from time to time. Here
is an interesting recent discussion about the Inamdar case and some other Supreme Court decisions. The primary discussants are the former Solicitor General, Harish Salve, and the CPI (M) MP Mohd. Salim. Towards the end of the discussion, in response to a remark by Salve that attacks on the lack of accountability of the judiciary are due to a "misplaced notion", Salim makes an interesting comment:

"Well, it has been happening in this country, that some people have always believed that they belong to a select group of intellectuals, who alone understand complex issues, whereas others do not have this understanding. We call it Brahmanism [sic], and the fight for social justice is precisely against such practices."

Though polemical, these remarks would seem to be justified. Salve's dismissal of calls for judicial accountability is somewhat perfunctory and smacks of elitism. Such calls have been made not just by people "who do not have a proper understanding of the Constitution" but also by experienced judges and senior lawyers, who presumably do have such an understanding. Here is an entire collection of Outlook articles on the issue. While Salve's defence of the Supreme Court's institutional role is commendable, in his zeal for his role as advocate for the Court, he appears to elide over genuine problems within that august institution.

In another piece, Kuldip Nayar urgesthe Supreme Court to decide upon the issue of elections to the Rajya Sabha, which has been pending before the Court for 18 months. If my memory serves me right, that case was initiated by Nayar himself. Ordinarily, there might be a problem with a litigant espousing the speedy disposal of his own case, but in this case, the overwhelming public interest involved would appear to justify the request.

Outlook also has a collection of articles on "The Judiciary v. the Govt" which comment on some recent clashes between these two wings of government.

Friday, September 16, 2005

Beginning the task of evaluating the legacy of Chief Justice Lahoti

The last few weeks have been exciting ones for those of us who follow the constitutional politics which result whenever there are changes in personnel in Supreme Courts. The announced retirement of Justice O'Connor, the sudden death of Chief Justice Rehnquist, and the ongoing confirmation hearings of Judge John Roberts - all these have led to a spate of commentary and analysis in the American media and on the web. There is thus a lot of discussion about Chief Justice Rehnquist's legacy and how Chief Justice Roberts will either continue or subvert that legacy.

I continue to be amazed at how intractable legal issues, complete with legal jargon and theoretical terms, are regularly discussed in the popular media in the US, and how much of attention is paid nationally to such changes of personnel. Undoubtedly, this is because of the important role that the judiciary occupes in American society, culture and popular imagination.

The situation in India presents a stark contrast. Even though the Indian Supreme Court has in the past few decades become one of the most important institutions that shapes( and often lays down) national policy, there is comparatively little attention paid to the personnel behind the institution. Changes at the top of the Supreme Court continue to be mentioned in small news-items, which don't feature much analysis and contain even fewer personal details. One must remember, though, that there is a scholarly tradition within India of assessing the judicial record of individual judges in a thorough manner. Prominent among these are Prof PK Tripathi's comprehensive assessment of Chief Justice Gajendragadkar's tenure as a judge, and Prof Upendra Baxi's evaluation of Justice KK Mathew's judicial oeuvre.

The current incumbent, Chief Justice Lahoti, is coming to the end of the one of the longest terms as CJI in recent history. On Nov 01, 2005, he will lay down office after a term of 17 months as Chief Justice of India (I suspect that this frequent turnover may be an explanatory factor for the low media attention towards the men who get appointed as CJI). Chief Justice Lahoti's record of judgments should surely be the proper subject of any analysis which seeks to measure the impact of his tenure on the jurisprudence of the Supreme Court.

However, in this post, I seek to comment on some extraordinary events which unfolded during Chief Justice Lahoti's tenure, and his reactions to them. In November 2004, Chief Justice Lahoti, broke ground with many of his predecessors who had expressed concern about the growing corruption within the judiciary, by proclaiming that the judiciary in India was 'clean'. This was an astounding statement, especially in the light of frequent exposes in the media about errant judges across the country.

Chief Justice Lahoti's handling of judicial transfers has also attracted controversy. In February 2005, Chief Justice BK Roy was transferred from the Punjab and Haryana High Court to the Guwahati High Court, on Chief Justice Lahoti's watch. Chief Justice Roy had become famous for having caused almost the entire strength of the Punjab and Haryana High Court to go on strike after having raised questions about the manner in which some of those High Court judges had obtained membership in an elite club. The media noted how Chief Justice Roy was trying to rein in dubious practices among High Court judges, but this did not prevent Chief Justice Lahoti and his fellow judges who constitute the 'Collegium of Supreme Court Justices' from transferring him to Guwahati, in what was seen as a 'punishment posting.' Recently, there were complaints from the Guwahati bar about Chief Justice Roy's behaviour which they described as 'high handed.' Other reports suggest, however, that the problems arose because of Chief Justice Roy's efforts to improve access to justice in the North-East. Earlier this week, it was reported that the Collegium of Supreme Court justices, headed by Chief Justice Lahoti ahd recommended that Chief Justice Roy be transferred to Sikkim - one of the smallest High Courts in the country, with a sanctioned strength of 3 judges including the Chief Justice. The transfer of a High Court Chief Justice twice within six months is quite unprecedented. The troubling aspect of these events is that a judge who is perceived as being a person of integrity appears to be paying the price for being unwilling to compromise on his principles.

The Indian judiciary's lack of accountability - both in theory and practice - is well known and documented. Chief Justice Lahoti has added to that perception by refusing to endorse the creation of a National Judicial Commission and by opposing moves to bring the judiciary within the purview of the Lok Pal.

The last aspect I focus on is Chief Justice Lahoti's inexplicable outburst at Parliament's reaction to the Supreme Court's judgment in the recent Inamdar case. V. Venkatesan, probably India's finest legal journalist, places the episode in context, making it difficult to appreciate Chief Justice Lahoti's stand. He also contrasts this episode with an example from an earlier era (the reaction of the early Supreme Court to the Nehru government's enactment of the first constitutional amendment) to emphasise the puzzling nature of Chief Justice Lahoti's reaction.

Any attempt at evaluating Chief Justice Lahoti's legacy as a judge and as CJI will have to take into account these troubling aspects of his tenure.

Wednesday, September 14, 2005

The importance of developing regulatory law and policy in India

In this recent convocation address delivered at the National Law School's 13th Convocation, Montek Singh Ahluwalia notes that "Regulatory law is a relatively new development in India, and is likely to expand very considerably in the years ahead."

It is indeed surprising that relatively little scholarship has been devoted to regulation in legal circles in India, even though policies of liberalisation have been pursued for nearly a decade and a half. One would have thought that at least the texts and courses on administrative law would have made attempts to study the massive changes in the Indian regulatory regime. Yet, surprisingly, the standard texts remain largely silent on these aspects.

Monday, September 12, 2005

The politics of economic liberalisation in India

Today's Indian Express carries an interesting column by a Mumbai based management consultant. The views expressed are a stimulating counterpoint to the conventional wisdom ( that the left parties are to blame for our current woes) that one finds repeatedly expressed in the contemporary media. Having said that, I found the columnist's claim that "the fruits of reform are now enjoyed by a broad swathe of our society, not just the middle classes" particularly difficult to swallow. The agenda that the piece marks out is ambitious. Perhaps those who are so gung-ho about market reforms in India should pay heed to the call - it certainly makes political sense.

Interesting article on cause lawyering in India

Vikram has asked me to be a guest blogger while he is away, and I hope to be able to contribute off and on.

Jayanth Krishnan has a new piece on SSRN which makes an interesting argument about public interest lawyering in India. In his words,

"The conventional assumption is that the decision to use constitutional litigation comes from the lawyers themselves. After all, the lawyers are the experts who are skilled in this rhetorical practice and thus are best able to determine how and when to employ this strategy. But by focusing on three different grassroots movements, in a different constitutionally-based and democratic society, India, I show how grassroots-leaders are actively involved in assisting their lawyers specifically recast the pressing concerns of everyday individuals into constitutionally recognizable claims. As I explain, the United States and India share a number of important legal and constitutional similarities that makes such a comparative investigation useful. Yet many might think that because issues of caste and other socioeconomic and political cleavages remain starkly present in India, such "bottom-up" pressure would be rather unlikely. But that such pressure indeed is occurring in the Indian case, as my findings and ultimate conclusion suggest, offers those who study cause lawyering and constitutional litigation in the American context an opportunity to reexamine the interaction between those at the grassroots and the lawyers who work on their behalf."

Krishnan's piece does a great job of locating the Public Interest Litigation (PIL) experience in India within the larger cause-lawyering discourse, and is a fine example of solid comparative constitutional law scholarship. I do have some doubts about whether Krishnan's description of the PIL movement is applicable to the overall situation in respect of PIL lawyering beyond (and in some cases within) the specific areas he focuses on. My own sense is that the overall PIL movement tends to be lawyer-dominated, and litigation strategy and planning is affected more by the lawyers' own sense of what the client needs. Effective consultation with clients, and genuine efforts to ensure that their 'voice' is reflected through the litigation is not as much of a priority as Krishnan's portrayal suggests. To be fair to Krishnan, he does anticipate this criticism and suggests that this should be investigated by conducting further research on the processes by which PILs are initiated and pursued. Krishnan's piece is an important and stimulating contribution to the dwindling scholarship on PIL in India.

If you do decide to check out Krishnan's piece on SSRN, also check the relatively new section on India Law, which features pieces on a broad range of topics. As of now, the collection is quite small, but, given the growing interest in Indian legal issues, is sure to grow in times to come.

Tuesday, September 06, 2005

Airports Authority Files A Writ?

This is an amazing story. The Airports Authority, a central government entity, is actually going to court to enjoin the local governments from licensing hoardings near Chennai airport. It is amazing that these hoardings were permitted in the first place. It is outrageous that the local governments pay no heed to the Airports Authority's caution about these dangerous. I hope the High Court acts promptly on this petition.

As a constitutional-law footnote it is interesting that the Airports Authority takes the role of a writ petitioner in this case. Twenty years ago, it took a Supreme Court decision to confirm that a writ petition could be maintained against the Authority, as a defendant. That decision, Ramana Shetty v. International Airport Authority of India, (1979) 3 SCC 489, is an important milestone in our constitutional jurisprudence.