Wednesday, April 25, 2007

CJI's Ruling on Early Hearing in Mandal-II -- More Thoughts

I find Mr. Venkatesan's thoughtful and well articulated comment to my post quite persuasive. I am grateful to him for his courteous and professional response, which helps advance the debate substantially. However, I am not convinced that Article 76 (3) of the Constitution entitles the Attorney General to ask one bench of a Court to intervene when another declined to do so. Moreover, even if the Chief Justice was required by the Constitution to hear the Attorney General, it does not mean that the Chief Justice had to concede what the government was asking. I would find it highly irregular if the Chief Justice's ruling was based on such reasoning (and I have found no evidence to suggest that it was).

In any case, I have always found Article 76 (3) to be somewhat of an anachronism to our constitutional and legal scheme. It was one of those superfluous English traditions in the Constitution that our founders, in their wisdom, included largely influenced by the prevailing spirit of their times. I should also point out that the office of the Attorney General is not exactly the same as the Lord Advocate General of England (I recently listened to a presentation on this topic by Lord Goldsmith, the incumbent English Advocate General). Even if the Attorney General were somehow entitled to deference on account of his constitutional office, the idea that he, while appearing for the government in a case, has an automatic "right of audience" before a court that other lawyers representing opposing litigants lack seems, personally to me, to be inconsistent with the constitutional objective of equal access to justice for all parties.

It is certainly true that, as a statutory matter, we now have a class-based system of senior advocates and other advocates under the Advocates Act. But that system, which itself was introduced to create an "integrated bar," does not justify special access to the Court for the Attorney General, as the government's principal lawyer (and by extension, his client, the Central Government) in a pending litigation where the Court had not sought his intervention or advice (as it routinely does in an matter with important constitutional dimensions or in an advisory proceeding).

I am also attaching comments I received from Pratap Bhanu Mehta on this matter.

Dear Vikram and Arun,

Just a quick response to your posts. A lot of what we
make of this will depend upon how the case eventually
proceeds. But I think I disagree with Arun for the
following reason:

Think of the options the CJI has on May 8,
irrespective of which bench it gets referred to

a)vacate the stay on implementation of reservations.
This would amount to overturning the Pasayt Bench's
claim that the government has not answered it fully.
It would certainly amount to the fastest about face a
Court has done. This would be tantamount to a final
verdict (since students are being admitted)

b)not vacate the stay. In which case what has been
gained by "fast tracking" as far as this academic
session goes

In the first case the Court ends up giving credence to
the view that "it all depends on the bench" and will
raise an interesting debate about gerrymandering the
bench. In the second, it simply postpones the issue by
two weeks.

I can see the point of trying to defuse an explosive
situation. But it also raises a dangerous precedent of
governments literally blackmailing the Court into
submission by a)unnecessarily exaggerating the harm to
students (SC and general category students could have
been admitted by now) and b) more importantly, using
the threat of public disorder to make the Court

I agree with Arun, that the remark about 57 years was
unnecessary. But the Court was also asking the
government about repeated non-compliance with its
order. Perhaps the Executive could say to the Court,
we have not implemented your orders on the creamy
layer for 17 years, why get exercised now!!!
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