Friday, March 30, 2007

Supreme Court stays UPA govt's OBC quota policy

Yesterday, the Supreme Court appears to have issued an order staying the UPA government's initiative to impose new quotas for OBCs. Here are reports of the stay order and the Court's general observations in the Hindu and the Indian Express. Its still a bit early to comment on what the Court has said - we may have to wait a while before informed analysis of the Court's decision starts pouring in, after people have had a chance to read the actual text of the order issued by the Court.

This will certainly dominate headlines for a few days, providing a welcome respite from endless debate over India's exit from the cricket World Cup.

Thursday, March 29, 2007

Debating the virtues of 'Judicial Consensus' and the role of dissents in judicial opinions

In the comments section of the previous post, Vivek Reddy has this to say while discussing the Coelho case:

"One interesting thing about the Ninth Schedule judgment is that it was a unanimous judgment. In the US, John Roberts is emphasizing a lot on the virture of unanimity. I was impressed that our court was able to acquire it, even if it was by default."

Anyone who has attempted to read the full text of the judgment in the Kesavananda case will have sympathy for the proposition that judges should strive for consensus, and where possible, write a single or at most two or three opinions clearly setting out their decision and the supporting reasoning. To that extent, I think Vivek is right to support the fact that Coelho and some other recent landmark judgments of the Indian Supreme Court have sought to achieve and reflect ‘judicial consensus.’ I am not sure, however, whether this has necessarily added to the quality of the reasoning of these judgments.

There are other considerations to bear in mind in debating whether judicial consensus as reflected in single judgments for the court is a good thing. Here, I draw upon a recent discussion in the context of U.S. constitutional law, which has parallels for Indian constitutional discourse. Reacting to Chief Justice Roberts' statement that Vivek refers to, Professor Geoffrey Stone, a leading U.S. constitutional scholar has this to say (his full views on the Roberts speech are available here):

"The Court has many responsibilities, and one of them is to produce majority opinions that state a rule of law. Certainly, if the Justices fell into the habit of issuing nine separate opinions in every case, that would create another form of chaos. ....

Chief Justice Roberts wants to promote more unanimous opinions, burying disagreements among the Justices. This, too, is bad policy. The legitimacy of the judicial branch rests largely on the responsibility of judges to explain and justify their decisions in opinions that can be publicly read, analyzed, and criticized. Consensus opinions designed to hide real disagreements among the Justices fail abdicate that responsibility. The price of achieving consensus is inevitably to eliminate from the Court’s opinion anything that one or more of the Justices disagrees with. The result is opinions that say little of substance, mask the critical steps in the Court’s reasoning, and persuade no one of the wisdom of the decision or the quality of the reasoning. To make the point dramatically, the quintessential consensus opinion that decides a case narrowly would read: “We reverse.”

It is surely true that a proliferation of separate concurring and dissenting opinions can be annoying, confusing, and divisive. But such opinions often play a central role in the evolution of the law. By making public the disagreements within the Court, such separate opinions foster a vigorous discourse about the merits of the competing positions and energize robust debate about the different ways to resolve constitutional questions. This ongoing, public deliberation ultimately strengthens the Supreme Court’s work product and contributes to public understanding. To squelch such separate opinions in order to achieve the appearance of consensus would both degrade the quality of the Court’s work and undermine the public’s and the legal profession’s ability to evaluate the seriousness and persuasiveness of the Court’s reasoning. In the long run, it would undermine the Court itself.

It is also important to note that some of the most influential opinions in the history of the Supreme Court were concurring and dissenting opinions. Although they did not command the support a majority of the Justices at the time, the eventually won the day because of the force of their reasoning. Familiar examples, to name just a few, include Justice Harlan’s famous dissenting opinion in Plessy v. Ferguson, the pivotal dissenting and concurring opinions of Justices Holmes and Brandeis in a series of free speech decisions following World War I, and Justice Robert Jackson’s landmark concurring opinion in the Steel Seizure case. By opening the disagreements within the Court to the light of public scrutiny, these opinions exemplify the tradition that despite the principle of precedent, the work of the Supreme Court is always a work in progress that must be open to public scrutiny if it is to retain its legitimacy."

I find Stone's analysis quite persuasive. One can think of dissents in India to add to Stone's list: Justice Fazl Ali's dissent in Gopalan, Justice Khanna's dissent in ADM Jabalpur, to name just two prominent ones.

While clarity in judicial opinions and reasoning is a very important consideration, it is equally important that judges aim at getting their results and reasoning right. To the extent that attempts at judicial consensus undermine that objective, they should be viewed with suspicion.

Tuesday, March 27, 2007

Recent pieces of interest in the Economic and Political Weekly

Recent issues of the Economic and Political Weekly contain several interesting articles that are either directly or incidentally related to the law. I am not sure when EPW moved to this new format (where it stores PDF versions of articles), but the move certainly makes its pieces more reader-friendly. In this post, I seek to highlight some recent articles, starting with A.G. Noorani's review of the Ninth Schedule judgment. In a piece which provides the historical backdrop to the issues covered by the judgment, Noorani also addresses the initial analyses of the case that have come out so far in the media. Noorani takes the view that the judgment was unsurprising, and was entirely expected:

"The wonder is not that the court ruled as it did on January 11, 2007 but that the Ninth Schedule of 284 protected acts, central and state, survived as long as it did after April 27, 1973 when the court propounded the [basic structure ]doctrine. … The Ninth Schedule was, after 1973, a sitting duck awaiting the grapeshot of the judicial gun. As ever, media hype over danger to “progressive” legislation or praise or fear of “judicial activism” blurred a simple issue. … The judgment is neither an exercise of “judicial activism”, as properly understood, nor a defeat for “progressive” legislation. It is a statement of the obvious."

Noorani also continues his blunt criticism of the quality of language and reasoning in recent Supreme Court judgments (criticism he has voiced in his earlier Frontline articles):

"Over the years the quality of the Supreme Court’s judgments has suffered. With chief justice of India Y K Sabharwal it reached rock bottom. He writes of “trite knowledge” and “intellectual debates” in the constituent assembly. His judgments in this case and the case of expulsion of MPs could have been reduced by a half – if not two-thirds without any loss to posterity. Quoting Amartya Sen pointlessly helps not a bit."

The issue of February 17 contains an interesting piece by Dharam Vir focusing on how state legislatures have been failing in recent years in seeking the regularisation of excess expenditure. Dharam Vir's article contains statistics which highlight the extent of the phenomenon, and also recapitulates the view of the framers of the Constitution on this issue. The issue may seem a bit obscure, but is nevertheless a significant one, as brought out by Dharam Vir's analysis.

A more recent issue features an article by Dwijen Rangnekar analysing the substantive issues at stake in the Mashelkar Report, and also draws attention to the ongoing Novartis litigation before the Madras High Court - a case that will have substantial implications for the future developmetn of patent law in India.

The last article I focus on dates from the issue of Jan 20: authored by Ch. Sambasiva Rao, it analyses the reasons for the continued neglect of rural telephony in India, which should be a matter for concern for people concerned with IT services in general. Rao argues:

"[A]t present, there exists a huge digital divide between urban and rural areas as well as among rural areas of different states in India. Another notable feature of post-NTP growth is that mobile telephone services, which are propelling the teledensity in the country, have so far been mainly restricted to the urban areas. Lack of penetration of cellular mobile services in rural areas and nonexposure of a large percentage of rural population to the telephone services are the underlying factors of low rural teledensity. Further analysis reveals that, in order to cover thinly spread potential customers across large geographical areas, there needs to be huge investment in creating the required infrastructure. Coupled with this is the presence of a lower proportion of business and industrial units in rural areas and the perception of service providers that rural telephones are unremunerative as they are mainly used for receiving calls, resulting in low revenue per customer. Therefore, private operators, in order to maximise returns to their given resources have invested in urban areas."

As this quick survey of articles drawn from the last three months shows, the EPW offers much for lawyers to mull over, and should be an integral part of our reading lists.

Monday, March 26, 2007

In Defence of Proportional Representation

In my earlier post on corruption debate-I, I emphasized the dire need to replace the first-past-the-post system with the PR. I am glad that HT editor, Vir Sanghvi has endorsed my suggestion in his column, in today's HT. I agree with him entirely on how journalists have been pretending to know how voters vote, without actually having an inkling on the voting behaviour. The perceived merits of the current system are too insignificant to be taken seriously, whereas the PR has a lot of things to its credit. I propose we start a national campaign in favour of the PR, so that more people and parties realize its merits. . I have often wondered in the course of covering an election, or reading a story on election campaign, what exactly should a journalist or an impartial observer be looking for. If the objective is prediction of the outcome, it hardly interests me. It is not uncommon to find such predictions going awry, and even if they are correct, it is unlikely to lead to any genuine satisfaction that one understood the elections; a correct prediction of an outcome may be due to chance, rather than a result of mature judgment. In any case, a journalist is different from a pollster, who uses opinion and exit polls to predict and explain results and trends. A pollster too goes wrong many times, and therefore, is not reliable enough to understand an election. Looking for trends and patterns in a constituency, therefore, made little sense to me. If a journalist's purpose is to explain an outcome in terms of voters' responses on the dominant issues, it is likely to be unconvincing, especially in a close contest, where the voters are seemingly fragmented. If one confines to campaign styles, and the content of speeches made by leaders and candidates, one is sure to find that these are hardly the factors which influence a voter.
The former Chief Election Commissioner, T.S.Krishna Murthy once succinctly summed it up in terms of two Weapons of Mass Destruction (WMDs): money power and muscle power. Media reports on these two have only contributed to strengthen the prevailing myths, rather than unravel them. Writing about money power of a candidate or a political party is not easy for a journalist. One needs facts, and corroboration to establish that a candidate or a party used money power to distort or attempt to distort the outcome of an election. Doubtless, it is an offence under the Indian Penal Code and a violation of the Model Code of Conduct for political parties and the candidates. Such cases need to be exposed, and the E.C. has a responsibility to prevent and punish such violations. While law in this regard should take its own course, my interest here is in understanding whether money power was useful in distorting the outcome of an election. A study conducted by the Centre for the Study of Developing Societies (CSDS) in 24 constituencies spread across 17 States and Union Territories during the 1999 Lok Sabha elections found that almost all 122 candidates monitored by it had exceeded the expenditure ceilings imposed by the law (currently it is Rs.14 lakhs in a Lok Sabha election). The study found that money mattered to gain an entry into the electoral fray, and to remain visibly in the race, but you can't hope to buy the votes and win elections. In other words, it is not true that the more you spend, the more likely you are to succeed. So, money power appears to be bad not because it results in distortion of an electoral outcome, but because it keeps off those with little money from securing party tickets, and contesting meaningfully. As money is required for campaign, the parties cannot be faulted for giving nominations to candidates, who can fund their as well as party's campaign. As the unrealistic expenditure ceilings imposed by the statute are meaningless, there is little merit in saying that candidates are guilty of flouting the ceiling. It also makes little sense to argue that the system is unfair to those candidates who have limited resources to secure a party ticket, contest and win an election.
Just imagine how PR could change all these ills as irrelevant. The other aspect is to understand how a candidate or a party funds a campaign, that is, the sources of such funding; and how and why these sources fund, whether they expect a quid pro quo from the system. These are larger issues which no journalist has bothered to touch because of limitations of ensuring the confidentiality.
The second WMD is the muscle power. There is absolute lack of clarity on what this means. There is an assumption that violence is induced during the election to keep away voters from exercising their franchise. A party which stands to lose from the exercise of franchise by voters, uses muscle power to unleash violence, to create a climate of terror and to intimidate so that the hostile voters are kept away from the polling booth. One needs to look at the facts and understand this phenomenon. In my view, media has not brought out any instance of such violence resulting in or threatening the distortion of outcome in an election, even though such a phenomenon is apparent. If each vote is to be valued in terms of percentage of seats as in PR, parties will have a vested interest in increasing their vote percentage. In the current system, there is a premium in winning a seat by hook or crook, and this leads to use of all sorts of unfair means. Under PR, constituencies will simply vanish from the electoral map, (forget delimitation), and there will be no pressure on parties and candidates to win as many seats as possible by unfair means, because it will not matter. As no vote will be wasted in terms of voting for a losing party or candidate, there will be less incentive for voter apathy, and parties will be motivated to campaign on larger issues, rather than trivialize the election in terms of local issues.
As a journalist, I have been curious about these two much-talked about issues, and how they taint the electoral process. The WMDs are perhaps the inevitable results of the manner the meaning of democracy has been menacingly narrowed to signify only elections, as Sunil Khilnani put it in The Idea of India. (Penguin, 1997). As I tried to learn more about these two issues, I found that there were several questions about the role and contribution of the Election Commission in ensuring "free and fair polls", a concept which I believe, gives democracy a wider meaning than just holding of elections. Except once during the Emergency, the holding of regular elections at periodical intervals has never been disturbed in Indian democracy. Therefore, the periodical celebration of democracy in the form of elections is of no interest to me.
Is there a crisis of democracy? What is the magnitude of this crisis, and does it threaten the gains India has made as a democracy? Jawaharlal Nehru, expressed his dissatisfaction once during the formative years of the Indian Republic with the system of direct elections to Parliament and State assemblies, because of the challenges it posed. Although he reconciled himself with the inevitability of the Indian elections subsequently, the context in which he expressed his fears first needs to be relooked afresh, to understand the current obsession of the State and the contenders for power with elections, based on the first-past-the-post system.

Friday, March 23, 2007

An analysis of recent Supreme Court rulings on crimes against women

Today's Indian Express carries a column by a member of the Delhi Commission for Women, Ranjana Kaul, who provides an analysis of recent Supreme Court rulings focusing on IPC provisions relating to crimes against women. It makes for stimulating reading, and also provides an overview of how the Court has approached this issue in recent times.

Thursday, March 22, 2007

The Indian Supreme Court's mixed record on human rights issues in anti-terror cases

A recent post by V. Venkatesan highlights stark contradictions in the Indian Supreme Court's overall record on human rights issues relating to terrorism. In particular, the description of the way in which the Supreme Court dismissed the PIL raising the issue of Mohd. Afzal's torture raises substantial concerns, and one hopes that more details about the case, and how it is handled by authorities emerge soon. It would be tragic indeed if even the highest judiciary does nothing to uphold the rule of law in such clear cases of public declarations of torture. While the masses may be swayed by the emotions sorrounding Afzal's case, judges are expected to act in ways that uphold the basic traditions of the rule of law.

Sadly, the Supreme Court's previous record on issues relating to terrorism does not inspire optimism. In an exhaustive study of the issue that has recently been published online, Anil Kalhan(who teaches at Fordham Law School) and his co-authors have focused on the Indian state's generally weak record in protecting human rights concerns while dealing with the issue of terrorism. Though the 143 page study focuses on several Indian institutions, my focus is on the way in which they portray the Supreme Court as having played a largely passive, inactive role in attempting to uphold human rights concerns. At times, the Supreme Court has arguably abdicated its function as a custodion of human rights, as for instance when it upheld the constitutional validity of TADA. Since the authors of this study are based outside India, an instinctive tendency (especially among those who equate patriotism with the use of torture on 'anti-national' elements) would be to disparage their effort as being biased or ill-informed. But the authors are conscious of this factor, and have taken care to provide details of the extensive interviews conducted by them with several Indian lawyers, NGOs and government officials who can be expected to have the requisite expertise to comment knowledgeably on this issue.

The study contextualises India's current anti-terror laws by placing them in the larger historical backdrop of colonialism, and also provides many other fascinating insights. It deserves to be studied closely, and its conclusions require the consideraton of those who are interested in achieving the appropriate balance between maintaining security and respecting the human rights of those accused of terrorism. Unlike this post, the focus of the study is on other public institutions in India beyond the Supreme Court, and its suggestions for reforming the police in particular are noteworthy.

Puzzling over a former CJI's letter, and reflecting upon desirable levels of transparency in the judicial process

Yesterday's Indian Express carried a short letter from a former Chief Justice of India, Justice R.C. Lahoti. I for one am intrigued by his motivation in writing the letter, though its contents and claims are equally interesting. Since the published version is relatively short, it can be reproduced in full:

"The falling standards in the judiciary and legal profession are a matter of concern for every right thinking person. Every system, however good, needs to be reviewed and updated from time to time. The article, ‘Just advice’ (IE, March 8) by Fali S. Nariman, which stressed the need to revive our rather moribund legal system, prompts me to share through your paper what little spadework I tried during my tenure at the apex court of the country. During the last nearly 60 years of independence, there has been no serious effort to study the system in depth, analyse its working and make suggestions for improvement, followed by implementation.

After assuming the office of chief justice of India, in my first meeting with the then prime minister, I impressed upon him the need to appoint a high-powered commission/committee headed by a former CJI for the purpose of studying the Indian judicial system and making suggestions to tone it up by simplifying procedural formalities and making it more people-friendly so as to achieve the cherished goal of quick and cheaper but quality justice.

We have to devise a system which ensures qualitative appointments. I strongly felt that the commission/ committee should include expert members drawn from the fields of management, administration and technology. The Bar should also be represented. The terms of reference should be as wide as possible. The whole idea is to achieve reform by remodelling, if necessary. The prime minister felt convinced. It seems that the matter was referred to the Union law ministry. However, there were no signs of any actual initiatives from the government — the idea has remained just wishful thinking till date.

On commencement of my tenure as CJI I had, against all odds, also got an e-committee appointed which acted at super speed. After collecting all the relevant data and analysing it within a record time of seven months — after working day and night — the e-committee prepared a ‘Five Year Plan’ for the total introduction of IT in the judiciary. The PM launched the Five Year Plan which needed a meagre amount of Rs 800 crore only for the total computerisation of the judicial system, interlinking the lowest court in any corner of the country with the high courts and Supreme Court. After demitting my office, I note that not much headway has been made. Very recently, I learnt that the project has been shelved by the bureaucracy. It was destined to meet this bureaucratic end. I feel very sorry. If only the things had moved in the right direction, we could have had paperless courts at the end of five years."

Chief Justice Lahoti's implied claim that he was the first person "in over 60 years of independence" to study the issue of judicial delays seriously is so outlandish, that I will refrain from commenting on it at length. Anyone who has studied this issue will know that from colonial times, administrators in India have acknowledged the problem of judicial delays and backlogs, and this may well be one of the most analysed issues in Indian law. (For an analysis which cites some of this vast literature, while also providing a biting critique of the system of Lok Adalats which seem to be a popular solution among several judges and policy-makers, see this excellent article by Jayanth Krishnan and Marc Galanter). All this is, however, not to say that we are any closer to finding lasting solutions to the huge backlogs that cripple the Indian legal system. In particular, Justice Lahoti's recommendation of forming a "high powered committee" (headed by a former CJI, no less) is hardly new, and any such report will have to cite the numerous Law Commission and expert body reports dating from the 1920s that already exist on the issue.

The problem with evalauting this rather rosy self-assessment of his tenure by Chief Justice Lahoti is that we, as members of the public, have very little information to go by in making an independent judgment upon his claim. In a recent post, V. Venkatesan argued that judges should discuss the circumstances sorrounding crucial judgments, and should use their memoirs for the purpose of enhancing public information and knowledge about the inner workings of judicial institutions.

Several Indian judges have written autobiographies/memoirs, some of which contain interesting snippets of information about the back stories of important judgements. However, most of them adopt a very idiosyncratic style, and do not really offer very much to constitutional scholars beyond gossip and somewhat partisan justifications of the individual judge's conduct or decision in particular cases. One scholarly work which does contain fascinating details about the internal deliberations of judges in crucial cases like ADM Jabalpur and Kesavananda Bharathi is Granville Austin's second book on the Indian constitution: Working a Democratic Constitution.

I am not sure, however, whether the judiciary needs to be subjected to the same kind and level of scrutiny as the other two more directly representative institutions. Given its institutional nature and function, the judiciary may be able to argue for lesser standards of scrutiny (though I do believe that the current situation, where no scrutiny seems to be tolerated, falls well below those lesser standards). V. Venkatesan cites American literature that provides very detailed accounts of the working of the U.S. Supreme Court (he specifically cites 'The Brethren') to argue for similar works about the Indian Supreme Court.

A more recent example of such a journalistic work which examines (in sometimes merciless detail) the operational details of the current U.S. Supreme court, is the following book by Jan Crawford Greenburg: 'Supreme Conflict: The Inside Story of the Struggle for Control of the U.S. Supreme Court.' The book focuses on the personnel of the current U.S. Supreme Court, including the backstories of how its most recent members were appointed, the interpersonal relationships of current judges, minute details about their judicial philosophies, and how they crafted particular judgments. The book cites formal interviews with several of the current and recent judges of the Court, and also relies upon interviews with unidentified, anonymous personnel such as law clerks, attorneys, journalists who cover the Supreme Court, etc. Some idea of the details revealed by this book can be had by looking at reviews of the book which are available here and here.

The current law relating to contempt of court may well preclude similar journalistic exposes of the working of the Indian Supreme Court. However much one may value transparency, the American example may be a bit of an extreme, as has been accepted even by some American scholars. An important academic book released around the same as the Greenburg book (but which will, in all probability, never get the same level of attention) is Brian Tamanaha's "Law as a Means to an End." An award-winning and respected law and society scholar, Tamanaha argues that this kind of discourse in mainstream American media and even in U.S. law schools, has led to the creation of a widespread 'instrumental' understanding of the law, where everything is seen as deeply political, and the idea that the rule of law means something as an ideal is debunked. Interestingly, Tamanaha is a liberal, and this critique is unusual in that it comes from the left. For those interested in accessing his views, they can be found in this online article, which deals with the same issues as his book.

Returning to the point I started with, perhaps Justice Lahoti should elaborate upon the measures he took to address the backlogs in the judicial system by penning a detailed autobiography. Such a task, if undertaken with necessary research inputs and rigour will enable us to put his legacy, and his contributions as Chief Justice, in proper perspective.

Tuesday, March 20, 2007

Supreme Court and Human Rights

A recent article in The Hindu dealt with evolution of human rights jurisprudence in India, and praised the Supreme Court for its seminal contribution to it. However, a recent case when the Supreme Court rejected a Writ Petition seeking its direction to the police to register a case of custodial violence against a police officer may be viewed with concern. The petitioner, Prashant Bhushan, representing the NGO, Centre for Public Interest Litigation, sought action against the concerned officials, and restoration of rule of law. The petition was based on a news item on Prime Time TV on an English news channel, CNN-IBN screening a police official openly admitting that he had tortured Mohammad Afzal in May-June 2000, to extort confessions of his involvement with a militant group Jaish-e-Mohammad (JeM). This was prior to his being accused and convicted in what is now known as the December 2001 Parliament attack case. The official, then D.S.P. Davinder Singh has been recorded saying that he “tortured Mohd. Afzal till the limits of any interrogation, put petrol in his ass, stripped him naked and hung him upside down in order to break militancy and save India”. This interview was telecast on CNN IBN on 27 November 2006 at 8.00 p.m. prime time, in a programme called ‘Afzal Decoded’. It also appeared from this recording that Davinder Singh’s official superior, S.P. Ashif Bukhari, knew about the torture and permitted it.
In his trial in the Parliament Attack case, Afzal had recorded in his statement under Section 313, Code of Criminal Procedure, that he was picked up and tortured by the J&K STF, yet no action was taken.
The Centre for PIL is a Registered Society formed for the purpose of protection of public interest through conducting public interest litigation in an organized manner. Its Executive Committee consists of several senior Advocates including F.S. Nariman, Shanti Bhushan, Anil Diwan, Rajinder Sachar, Colin Gonsalves and others. The Petitioner has filed several important public interest petitions including Writ Petition (Civil) No. 637 of 1998, titled Centre for Public Interest Litigation (CIPL) & Ors. Vs. Union of India, seeking comprehensive administrative guidelines for securing the citizens’ right to information.
But the report about the hearing in the Supreme Court is of concern to all right thinking people. The Bench not only raised questions about the propriety of using the lawyers' chambers for the NGO work (It is not clear whether the Bench thinks an advocate cannot be an NGO activist), but advised the petitioner to approach a police station to file the FIR. Mr.Prashant Bhushan, petitioner, had this to say when asked for his reaction:
"I need to register an FIR in a case where I alone or a few persons like me are witness to a crime. In a case where the crime has been admitted on primetime of a national TV network where senior officers of the J&K police havealso been interviewed, it is the duty of the police to register the FIR. Since they had not done it, I can legitimately infer that they have no inclination to do so."

Monday, March 19, 2007

Understanding our blog's inherent potential

An interesting piece on the blogs by Nicholas Carr, which first appeared in Guardian and reproduced in The Hindu, captures the essence of our blog too, defines its personality to some extent. But there is still something more to be said to outline a blog like ours. I see it having more potential than a reactive, parasitical, or bacterial form. It is possible to post exclusives - not only in terms of breaking news and events missed by the mainline newspapers/magazines/electronic media - but in terms of offering fastest comment and interpretation on events and issues, as we don't have any of the constraints faced by the other traditional, conventional media. There is of course, more to be said on making our presence on the web widely known, in order to create an effective impact of our content. The point about making a quick comment is not to denigrate the value of reflective/ leisurely write-ups. I understand both have their space in our blog, and we have the advantage of combining the virtues of both, and give them their due.

Friday, March 16, 2007

Corruption Debate: Flaws in the Moralist Approach-II

The moralist approach to corruption – although insufficient to evolve systemic remedies – should help us understand the phenomenon in proper perspective. It was Indira Gandhi who once said corruption is a global phenomenon. Much later the former PM, Chandra Shekhar, while in office, once said the Bofors investigation is the job of a police constable, dependent as he was on the support of the Congress. Both Indira Gandhi and Chandrashekhar were realists, having understood the problem of corruption at close quarters. The former Prime Minister, Atal Behari Vajpayee also told the then Defence Minister George Fernandes, not to touch the Bofors file – although Fernandes, rather unconvincingly, retracted saying the former PM said it as a joke. It used to be said when Vajpayee was in office as PM, that apart from the coalition allies he was dependent for his support, he also owed his survival in office to the Congress-I President, Sonia Gandhi – that is, the intense opposition that her probable candidature for the PM could evoke among friends and foes alike. Hence, keeping the Bofors controversy under wraps could mean buying peace with the Opposition, which could let him complete his term in peace, and thus contributing to a semblance of political stability .
The realists-politicians, therefore, are amused at the moralists’ lament over the alarming levels of corruption. In my view, both the realists and the moralists perhaps miss the revisionist perspective on corruption, that is, the probable benefits of corruption, in the absence of systemic remedies. Everyone knows how corruption speeds up cumbersome procedures. As the process of governance becomes more transparent, and RTI recognized at all levels, this value of corruption as a speed money, would certainly diminish.
But has corruption helped to buy political access for the excluded, and produce de facto policies more effective than those emerging from legitimate channels? The recent defection drama in Uttar Pradesh comes to my mind as the best illustration of this revisionist view of corruption. The defection of BSP MLAs to the ruling Samajwadi Party – allegedly in pursuit of money and office – secured access to power for those MLAs and their supporters, who would otherwise have remained excluded. The Supreme Court, by terming their defection unconstitutional, rendered the Mulayam Singh Yadav Government, vulnerable for attack by purists in the Congress who argued that it was illegal ab initio, as it lacked majority support without the support of these defectors. But it is possible to argue, in terms of this revisionist view, that the governance of the State – by and large, barring Nithari and the perceived breakdown of law and order – did not lead to a serious breakdown of Constitutional machinery, warranting imposition of President’s rule. It is however, debatable whether the Mulayam’s policies were more effective than those emerging from what would have been considered as legitimate channels by the moralists, and whether the costs of this illusion of political stability far outweighed its perceived benefits.

Thursday, March 15, 2007

Corruption Debate: Flaws in the Moralist approach-I

Two timely pieces in The Hindu today – one by Harish Khare and another by Sriram Panchu – have sought to focus on the reasons why we have lost the battle against corruption all these years. Of these, Khare’s lament is that of a pessimist, who has lost all hopes of the civil society striking back at corruption, because he argues, it has already lost its moral voice, because of its acquiescence in corruption in one or the other. He cites Fali S.Nariman’s argument – which I referred in one of my previous posts recently – and faults him, without naming him, that the “self appointed arbiters of public morality, who otherwise applaud every instance of judicial over-reach, cannot make up their minds.” Clearly, Nariman’s advice to judiciary to keep off a corruption case of a politician, on the verge of facing an assembly election, is indefensible both morally and constitutionally, for the reasons I had suggested.
Essentially, Khare blames the media and the judiciary, for failing to instill fear among the corrupt. As for the reasons for corruption, he blames the coalition compulsion, and the need for funds by political parties to fight elections.
Indeed, it is time for debating systemic reforms: the block vote proposal of an obscure official of the National Commission to Review the Working of the Constitution to introduce democracy within our political parties, and do away with the ills of Tenth Schedule dealing with curbing defections is one which requires serious consideration by elites (I have referred to in the Comments section previously, and Arun has provided the Link). This would also answer the “compulsions of coalition”, which Khare has referred to in passing.
The second would be the Proportional Representation. In a plural society like India’s, it is the PR, rather than first-past-the-post system which should correctly reflect a fair representative democracy. I don’t think there could be any serious or sincere arguments in favour of the latter as compared to the former (PR). Yet, PR has not earned many adherents across the political spectrum, primarily for lack of opinion makers. The parties’ dependence on funds can diminish, if PR is introduced.
One would tend to agree with Khare’s trenchant indictment of media’s partisanship. But that alone cannot explain why the civil society has squandered its power of disapproval against corruption. The media played a significant role in exposing the Bofors scandal. And a national election was fought on the issue, bringing down the Rajiv Gandhi Govt. in 1989. Today, the media has almost given up on the Bofors scandal. Do media set the pace for politics and civil society any longer? Or is it the reverse which we are witnessing? Economic reforms, and liberalization of economy since the early 1990s and the impact on corruption is one factor which Khare has ignored in his column. One expects corruption to thrive in an atmosphere of permit-licence-quota raj (PLQR). With the demise of PLQR, and the ushering of a transparent governance, is corruption being institutionalized, as Khare claims?
Khare has made only a passing reference to Judiciary’s capacity to arbitrate disputes in the political sphere, saying it has been dented because some Judges allow personal likes and dislikes to override judicial equanimity. Is there a suggestion that Judiciary has been more pro-establishment when it comes to political disputes? In other words, is the Judiciary dependent on the executive for various extraneous matters, that it wants to favour it in its judgments, or interventions? These are indeed troubling questions, which require honest answers.

Tuesday, March 13, 2007

Pratap Bhanu Mehta's Rejoinder on Judicial Activism

I am posting a response from Pratap Bhanu Mehta to V. Venkatesan's post on Mehta's op-ed in the Indian Express.

It seems to me that Venkatesan's otherwise helpful post slightly mixes up two different issues:

The first is: Do Courts put a construction upon the constituion, law, statutes in a way that takes into account the interest of the poor?

The second is: Do Courts feel bound by any legal discipline at all in arriving at the conclusions they do?

My piece actually does not say anything about question 1. The issue I was raising was not: Are Courts doing enough for the poor? They clearly are not. But there is a slightly different question: What domains should the Courts be authoised to take decisions on?

In fact the post seems to make an unwarranted assumption of its own: that anyone concern for the separation of powers, any concern for legal formalism, or a strict interpretation of constituional propriety by definition works against the poor. This is not an assumption I would make.

There is also another tricky question: I think the question of what counts as "pro poor" is a lot more complicated than the post assumes. Any account of what is good for the poor involves a complex series of assumptions (eg. it used to be thought that easy eminent domain exercise by the state would help the poor; the contrary is probably true). There are some Court decisions that are obviously ghastly for the poor (like access to justice, access to work rights in cities), but I would not assume that pro liberalization judgments are automatically anti-poor.

But the issue is that this is a policy debate for society, not for judges.

Free online resource for researching legal issues in India and Asia

The Asian Legal Information Institute (AsianLII) has recently launched a website that contains very useful tools for researching legal issues in a number of Asian jurisdictions.

Since it is a recent project, and is a work-in-progress, there are still some teething issues, and the project has some way to go before it can provide a genuine alternative to commercial databases like SCC and Manupatra. Still, the website's India section has many research tools that will be helpful for those interested in researching Indian law, including a section on Supreme court cases from 1950-2005, a database of Indian legislation, Law Commission Reports since 1999, as well as decisions of several High Courts.

This will, in time, prove to be a very valuable resource for conducting research on issues across Asian jurisdictions as well - an area in dire need of study in many disciplines, including the law. Here are some details about the overall project from its website, which is a fascinating idea in itself:

"What is AsianLII?

Free access & non-profit The Asian Legal Information Institute (AsianLII - is a non-profit and free access website for legal information from all 27 countries and territories in Asia located from Japan in the east to Pakistan in the west, and from Mongolia in the north to Timor Leste in the south. Access to AsianLII is free. AsianLII was launched for free public access on 8 December 2006 in Sydney. Launches in a number of Asian countries will take place, beginning with the Philippines in January 2007.

Facilities AsianLII provides for searching and browsing databases of legislation, case-law, law reform reports, law journals and other legal information, where available, from each country in the region. At launch it will provide access to nearly 100 databases drawn from almost all 27 Asian countries. Over 140,000 cases from at least 15 countries, and over 15,000 pieces of legislation from at least 18 countries will be searchable. All databases can be searched simultaneously, or searches can be limited to one country’s databases or other combinations. Search results can be ordered by relevance, by date, or by database. For every country, AsianLII contains an extensive Catalog of law-related websites for that country (parts of the largest law catalog on the Internet), and a ‘Law on Google’ facility assisting users to search Google only for legal materials from that country.

Developers, partners and supporters AsianLII is being developed by the Australasian Legal Information Institute (AustLII), a joint facility of the Law Faculties at the University of Technology, Sydney (UTS) and the University of New South Wales (UNSW), in cooperation with partner institutions in Asian countries and other legal information institutes (LIIs) belonging to the Free Access to Law Movement. AustLII provides the largest online facility for Australian legal research ( and coordinates the World Legal Information Institute (WorldLII) and Commonwealth Legal Information Institute (CommonLII) . This experience is now being applied to access to Asian law.

AustLII receives funding support for development of AsianLII’s infrastructure from the Australian Research Council, for inclusion of content from six jurisdictions from AusAID’s Public Sector Linkages Programme (PSLP) (Indonesia, Cambodia, Thailand, Vietnam, the Philippines, and Macau), and for inclusion of content from four other jurisdictions from the Australian Attorney-General’s Department (India, Singapore, Malaysia and China). PSLP assists development linkages between Australian public sector organisations and those of Asian countries. AsianLII is also supported by APEC’s SELI (Strategic Economic Legal Infrastructure) Coordinating Group. Other regional institutions are welcome to join in supporting AsianLII.

Development approach – AsianLII Asia is a region of wide diversity of languages. We aim to include in AsianLII as much legal information as possible in the English language, so as to provide a common linguistic platform for comparative legal research. At the same time, we will obtain wherever available legal materials in national and local languages other than English and also make them accessible via AsianLII. AustLII’s own search engine (Sino) is being developed to allow it to search data in any language (via conversion into Unicode). Hypertext links between the versions of the same document in different languages will be provided wherever possible. User Guides will be available in various languages used in Asia.

The databases searchable via AsianLII are in most cases be located on the AsianLII servers located at AustLII, where they will be converted into a common format. In many cases the same data will also be able to be obtained from the websites of our local partners. Where a local legal information institute with sufficient technical capacity already exists (such as HKLII for Hong Kong or PacLII in relation to Papua New Guinea law), a constantly synchronised mirror copy of the LII is located at AustLII for searching purposes, but search results from AsianLII searches return the user to the local LII.

Encouraging local capacity: One aim of the AsianLII project is to assist development of the local capacity of our partner organisations to develop and maintain independent local legal information to the standards of world’s best practice, and to integrate them into international free-access law networks such as AsianLII, CommonLII and WorldLII. Where possible and requested, AustLII will provide technical assistance to our partner institutions to develop these capacities. This may include the provision of AustLII’s Sino search engine and other software for LII development. It may also include AustLII support for applications by local partners to obtain resources. Some in-country training will be provided for our AusAID partner institutions."

Monday, March 12, 2007

Mehta and Arundhati Roy: Two different responses to Judicial Activism

It appears to me that the phenomenon of judicial activism can bring about different reactions depending on what sort of critic you are. Arun has brought to our attention the article in Indian express written by Pratab Bhanu Mehta today. In his article, Mehta makes two assumptions, which may be flawed, if we look at it from a different perspective. One is that it is the High Courts which are generally crossing the lakshman-rekha of judiciary-executive divide, and the Supreme Court always glosses over this. The second is what he calls as the jurisprudence of exasperation, citing Justice Markandeya Katju’s observation of hanging a few corrupt people from the lamp post, as the latest example. Courts are doing things because they can, not because they are right, legal or just, he put it succinctly.
Only the other day, writer-activist, Arundhati Roy spoke at the People’s convention on judicial accountability in New Delhi on March 10, and the substance of her speech was similar to Mehta’s conclusion that judicial activism is not grounded in any sense of right and justice. But the tone and tenor of Roy’s comment – probably because she saw herself as a convicted criminal, having been convicted for contempt of court in 2002 and sentenced for a day’s imprisonment by the Supreme Court for allegedly attributing motives to the Bench – ensured that her speech did not get the kind of publicity in the media, which one could normally expect in case of celebrities like her. And Roy’s speech, incidentally, is a pointer to why Mehta’s two major assumptions in his piece, may be flawed.
Arundhati Roy’s response to Mehta’s argument against judicial excesses by the High Courts would be this (as inferred by me) : The judiciary (there can be no distinction between High courts and Supreme court here) is accountable to the rich, and 70 per cent of people are outside its limits, and they are in fact controlled by the Judiciary through various mechanisms, including the Public Interest Litigation. Although she said this while justifying contempt of court, she could as well be indicating that the judiciary was not doing enough, for the 70 per cent, while doing all it can for the remaining.
She was equally critical of the lack of logic, and absence of intellectual integrity in today’s judgments – as Mehta is. But look at the underlying differences in their perceptions.
Justice Katju’s remark is seen as an instance of judicial exasperation by Mehta. But to Roy, (again, it is my interpretation of her speech – these are not her exact words) exasperation would mean that the person giving expression to such exasperation is equally moved by corruption everywhere – including that of judiciary. If a low-level official accused of taking bribes in the fodder scam is to be hanged, it goes without saying that Judges accused of corruption should face similar fate – even though she herself would be against capital punishment in principle.
My point in juxtaposing Mehta and Roy on the question of judicial activism, is not to compare or pass judgment about their individual understanding of the issue, but to bring out the underlying perceptions of a scholar – more concerned about the institutional strength – and an activist seeking to articulate the layman’s discomfort with the perceived biases and prejudices of the judiciary.

Mehta's commentary on recent judicial actions and comments

Holding the higher judiciary accountable seems to a recurring theme in recent posts on the blog. A typical feature has been an expressed concern about how one can engage in such discussions without running foul of the Supreme Court's strict approach towards contempt of court actions. Pratap Bhanu Mehta has a characteristically blunt and hard-hitting op-ed in today's Indian express which, perhaps in recognition of such concerns, has the tongue-in-cheek title, "With Due Respect,Lordships." In the piece, Mehta focuses on the following recent events:

"the controversy over the appointment of Justice Bhayana; the Delhi High Court pulling up the government for proposing to levy congestion charges at peak hours at airports with heavy air traffic; and the remarks from an honourable justice of the Supreme Court to the effect that it would be desirable to hang a few people from the lamp post to deter corruption."

While reiterating ideas he has expressed before, Mehta identifies the following problems with this trend:

"It is becoming apparent that the Supreme Court is losing grip over judicial interventions made at the high court level. The apex court has on occasion gestured at the fact that policy decisions are the prerogative of the executive. But this lesson seems not to have percolated down the system, perhaps in part because the fundamental question of what falls within the courts’ domain has become confused in law and practice. When was the last time judges even so much as asked whether they should be pronouncing on policy matters that involve no legal technicalities or constitutional ramifications? It is simply not the court’s business to decide what the appropriate age of admission to schools should be, or whether the government should introduce differential time pricing at airports.

The second issue is this. Often judicial interventions, unless disciplined by a law and carefully crafted, produce worse outcomes. In some ways judicial policy-making magnifies rather than corrects for the deficiencies of executive policy-making. The fiasco over admission policies in Delhi schools is a case in point, where our honourable judges did not pay due attention to how incentives operate under different regimes, what the connection between cause and effect is in producing desired outcomes. Ad hominem interventions, based on nothing more than confidence in the judges’ good intentions, are no substitute for a policy-making process.

Third, the more capacious judicial intervention becomes, the more the judiciary will undermine its own authority. If much of what the judiciary does becomes more like discretionary and arbitrary exercise of policy choices rather than enforcement of the rule of law, the whole integrity of law is undermined. What remains of the central elements of the rule of law: consistency, predictability, integrity, constitutional morality and proper authorisation?"

Saturday, March 10, 2007

Judges, media and open society

I just read a copy written by our correspondent in Italy, Vaiju Naravane, who has gone to Argentina to cover the detention of Ottavio Quattrocchi, an accused in the Bofors payoff case. There she met the Judge who refused bail to Q, and obtained an exclusive interview on how she refused the bail, what factors she considered, and what was the law etc. The NDTV also mentioned in its report, that the CBI team currently in Argentina could meet the Judge who would hear the extradition case against Q, before the actual hearing takes place, even though the CBI team appeared reluctant, because it would send wrong signals back home - as it could be easily seen as an attempt to influence the Judge either way, as the CBI's commitment to the extradition is largely in doubt to many observers. These two independent happenings have necessarily focussed attention on the Judges in India, and why they are reluctant to speak to the media (let alone the parties before them off the court) on the cases before them, or after they have given the judgments. In a previous post, Arun and I had debated the issue of incoming CJIs giving lengthy interviews to all journalists on all subjects under the sun - including that may potentially come before them as cases, which they may have to decide. Opening their minds on such issues which may be litigated later, would doubtless disqualify them (ethically, if not legally) from hearing such cases with an open mind - even though it could be argued that Judges, like other human beings, are free to revise their opinions, even if they were expressed earlier. But public perceptions in such contexts might do more harm than good and lower judiciary's credibility.
But what the Argentinian experience shows is that it is possible for Judges to publicly talk about the cases before them, or after delivering the Judgments, without compromising with their essential objectivity. It is possible for instance, if the cases are yet to be decided, to talk in general about the issues involved, and listen and participate in discussions on such issues, just to understand the various points of view. The Supreme Court's judgment on the Sardar Sarovar Project, for instance, carries a lot on the virtue of big dams, even though the petitioner, Narmada Bachao Andolan was denied the right to present arguments against big dams. Such a thing might not have happened, if this option of off-the-court interaction with Judges was available to them. Once the judgments are delivered, there is no reason why Judges should subject themselves to censorship. If they have time, they could try to answer the criticisms of judgment, and educate public opinion. Well, I can expect the Judges to say, 'Our judgments are self-explanatory, there is no need to add or subtract, or interpret again what we have already said'. But we do find profound debates among lawyers and experts on what constitutes ratio of some complex judgments, and if the Judges who delivered the verdict, help to remove the haze over such verdicts, it should help. But there are certain exceptions to this convention: Justice Krishna Iyer, if I am not wrong, has spoken about his judgments many times. Justice J.S.Verma, has sought to clarify what he meant in an election case, where he famously said Hindutva is a way of life, and which invited quite a lot of criticism about his objectivity. Justice Verma, has also regretted his majority judgment in the Advocates-on-Record case in 1993, which led to primacy of Supreme Court collegium in appointment and transfer of Judges. Appointment of Judges is a disappointment is all he says now.
I remember reading elsewhere that an American Judge has written his memoirs detailing the discussions on the Bench before delivering Judgments. (Can Arun or Vikram help to get the exact reference). Why can't Indian Judges do the same? It will not only help to understand the various influences on the Judges, but could contribute to public discourse significantly.

The status of education in India: Primary and Tertiary

Nearly a year and a half ago, this blog carried a post focusing in part on the UPA government's legislative attempts to implement the newly incorporated constitutional right to education in India. More recently, the UPA government has sought to involve the States in the process of implementation of the right to education, which has invited sharp reactions from activists involved in the movement to bring about universal education. As this article from India Together details, several of the people intimately involved with this process for several years see the move as regressive and as an attempt by the Central Government to "wash its hands off."

A recent issue of the EPW carries an insightful essay by Ramachandra Guha where he analyses the historical contributions of Indian Universities, assesses their present functioning and status, and lays out his vision for the future of university education in India.

These accounts suggest that the road to achieving state-of-the-art education in India, comparable with the best available internationally, is a long and arduous one. That by itself is not news - the articles do, however, contain details and propose stimulating avenues to explore, beyond making the claim that these issues need to be addressed urgently.

Thursday, March 08, 2007

Debating Justice

The People's Convention to be held in New Delhi on March 10 and 11, under the auspices of the Committee on Judicial Accountability, will bring intellectuals and activists on a common platform. The convention will take place from 9.30 A.M. to 5 P.M. on both the days. Key-note Speakers on the first day include the former PM, V.P.Singh, and Justice P.B.Sawant. Messers Shanti Bhushan, N.Ram, Dr.Bhaskar Rao, and Ms.Arundhati Roy will take part in the first session on appointment and accountability of Judiciary, to be chaired by Ms.Kamini Jaiswal. The second session on access to judiciary and delay in justice is to be chaired by well-known writer and academic, Dr.Usha Ramanathan.
The third session to be held on the second day will be on Values & Attitudes of the Judiciary towards poor to be chaired by Ajit Bhattacharjee.
The following is the abridged version of the theme paper being circulated for the convention:

While the corporate media often lionises the judicial system as the only working wing of the State and projects it as the only institution which stands in the way of a government controlled by criminals, the vast majority of the country do not see the judicial system as capable of providing any modicum of justice to them. The system is totally inaccessible to the poor of the country, being so formal and procedurally complex that it can only be accessed with the help of lawyers, whom the poor cannot afford. Even those who can access it cannot hope to get their disputes adjudicated within a reasonable time. The majority of undertrials spend more time during trials than the maximum sentence that can be imposed upon them. Even if they are out of jail during this time, the agony of defending themselves during this long trial is more painful and taxing than serving the sentence that could be imposed. In fact, the agony of a trial through the judicial system has become the easiest way for the police and powerful persons who can have the police at their beck and call, to harass, intimidate and silence inconvenient persons, especially political activists who are trying to change the oppressive and exploitative system of the country.
The complete insulation from all accountability, has led to a situation where it can easily transgress its jurisdiction by interfering in matters of the formation and implementation of executive policy. Under the cover of its expansive interpretation of Article 21 (which by itself is not objectionable), particularly the right to environment, the judiciary has been ordering the removal of slums from the Yamuna Pushta, hawkers and rickshaw pullers from the streets of Delhi, and has even directed the government to take up the highly controversial project of interlinking of rivers. Sometimes these arbitrary powers are being exercised against the wishes of the executive, but often in connivance with the executive, allowing the executive to do what a democratically accountable government dare not do, such as demolish the yamuna pushta slums of Delhi or take up the project of interlinking of rivers.
The people need to reclaim the judiciary by having it restructured in accordance with the needs of the common people.

Wednesday, March 07, 2007

Seminar on Judicial Accountability and Judicial Reforms in New Delhi

Prashanth Bhushan, a leading member of the Supreme Court bar, has requested us to highlight a seminar that will take place in New Delhi on March 10 and March 11. The seminar will take place at the Indian Social Institute in the Lodhi Institutional Area, and is part of a national campaign for judicial accountability and judicial reforms. Featured speakers include former Prime Minister V.P. Singh, Justice P.B. Sawant, N. Ram, and Arundhati Roy. A more detailed note on the seminar will follow.

Politics & Law : Is the separation real or desirable?

Time and again, the question whether courts can examine political issues had cropped up in many cases before the Supreme Court. The answer has been that the courts cannot refuse to hear a matter, just because it hinges on politics. And courts had gone into matters political, only to bring clarity, and make politics a more transparent field of activity. This was my initial response when I read Fali S.Nariman's article in Asian Age on March 4. As I am not sure whether the link will work, (as I did not find a specific link to the article on its website) I am pasting it for the benefit of readers. 'Fali', as he is called by his admirers, is unhappy about the timing of the Supreme Court's intervention in the Mulayam Singh's matter on the basis of a PIL filed by a Congress politician seeking directions to the CBI to investigate his disproportionate assets - especially because the U.P. elections are round the corner, and heavens will not fall if the Court had adjourned the case till after the elections. With great respect to Fali, however, I disagree. It is true that the case would not be decided before the elections. But is that a reason to reschedule the court's calendar just because it may have an impact on politics, or more specifically, the outcome of elections? Fali assumes that the Court's intervention would prejudice the voters, who would otherwise be voting for Mulayam. But I fail to understand why can't this case be a useful input to a voter's decision. Why should voters' choice be insulated from the progress of a case concerning a chief minister? Why should a PIL petitioner lose his right to proceed with the case, simply because he had contested as a Congress candidate in a previous election - if the PIL petition raised some substantive issues or had merits? An adjournment of the case, because elections were round the corner - or that the petitioner had some ulterior motives to prejudice the voters - would be clearly an exercise of judicial discretion on the basis of extraneous factors. And that would have also meant that politics and law are separate entities, and that the expectation that politics must be conducted on a strong legal foundation is unreasonable. Here I present the article, and invite comments:
Mulayam CBI decision is singularly ill-timed
By Fali S. Nariman
I am distressed and disturbed at the news of the Supreme Court directing a CBI inquiry against Mulayam Singh Yadav, a sitting chief minister, allegedly at the instance of a Congress Party sympathiser in a PIL — not because of the verdict, which may be correct in fact and in law, but because it is singularly ill-timed. It is not that judges are playing politics — they are not; but in a country governed by the rule of law, reasonable people ought never to be left under the impression that they are trying to. The UP Assembly elections were announced by the Election Commission on February 21 and this put paid to intense speculation, generated as a result of a Constitution Bench decision of the Supreme Court, about President’s rule being imposed in that state. Only days later we now get a judgment of a bench of two honourable judges (on March 1) that will — certainly, in the minds of politicians — influence the election result. The dust of electoral conflict must never be permitted to settle on the Supreme Court or on any of its fine justices.
As a lawyer I recall a precedent. Some years ago, when a contempt petition had been filed against Mr Narasimha Rao in respect of the Babri Masjid case, and the matter came up for hearing, after a while, before a bench presided over by Justice S.P. Bharucha, it was pointed out to the court that the case was motivated only in order to embarrass Mr Narasimha Rao at a time when elections were round the corner. It was also suggested that many years had elapsed, and therefore whether a contempt could be proceeded with or not raised serious questions of law and propriety. Petitioner’s counsel — my distinguished friend Rajeev Dhawan — told the judges that he was prepared to answer all legal questions immediately, and the court should deal with the case, but the presiding judge on the bench merely said that "in the light of all the circumstances" (a beautifully evasive phrase frequently used by courts) it would be more appropriate to adjourn the case beyond the elections. Justice Bharucha made it plain that he did not want the court to be drawn into any political controversy: in my humble view, this was a wise decision.
Of course, even though the heavens may fall, justice must always be done — but for the sake of the court’s image, not necessarily during election-time.
Fali S. Nariman is a senior advocate of the Supreme Court of India

Monday, March 05, 2007

EC's non-transparent role: a rejoinder

My post on E.C.'s lack of transparency has elicited three responses - from Ms.Sunanda Bharati, Mr. Arun and Mr.Vivek Reddy and all responses are similar. I am thankful to all of them for sharing their thoughts on the issue.
I agree with the view that the state police may be biased, and it is not advisable to trust it completely in any election. My view is only that let the E.C. follow certain parameters or criteria to decide which polling stations would come under the CPMF and which would be under the state police. The convention has been that the CPMF would get those polling stations considered as sensitive, in terms of the past violence, malpractices etc. In West Bengal, such polling stations were clearly identified. Still, the CPMF got 100 per cent coverage by virtue of the E.C.'s decision. It was not the case that the entire state of West Bengal was considered sensitive by the EC. In deciding the degree of CPMF cover in West Bengal, the EC went by the Opposition's view on this issue, even though it was not practical or feasible to extend such cover. In fact, in 2004 Lok Sabha election, the E.C. wanted/decided to bring in 50 per cent of the polling staff from outside the state of West Bengal. When the plan did not succeed due to non-cooperation from the staff of other states, it quietly buried the proposal. In West Bengal, it did not even trust the state government personnel. One need not be a supporter of the Left Parties to understand how flawed the E.C.'s approach was. The E.C. must take decisions on the basis of objective factors, not on the basis of views expressed by frustrated opposition parties. Ensuring complaint-free election cannot be an end in itself; rather, the way the E.C. redresses the complaints must be the test of its ability to conduct free and fair elections.
The E.C.'s move is disturbing, not only because it violates the federal character. Article 324 cannot be overstretched to read a power which was not intended, or necessary to ensure free and fair elections. In other words, the E.C. cannot claim a prililege to deny specific information or inputs on which it based its decisions under Article 324. Otherwise, the Right to Information Act would have been inapplicable to the E.C. No doubt, in a democracy, opposition's complaints must be taken seriously; but if these complaints (in the case of West Bengal, it was a demand for 100 per cent CPMF cover) have no basis, the E.C. must politely and transparently tell the parties concerned why they could not be accepted. In its efforts to ensure free and fair polls, the E.C. must not emphasise form over substance. The elections should not only be seen to be free and fair, but be actually free and fair.
Let me explain why the decision may actually be contrary to free and fair polls. In view of the CPMF's limited strength, the E.C. has to necessarily opt for many phases of polls. In West Bengal, it was five-phase poll, (whereas in previous elections, it was just two-phase). In U.P., it is promising a seven-phase poll. Doubtless, we would all consider this lengthy schedule as an inevitable evil, as there is no other option. In West Bengal, the E.C. began with a premise that the Opposition might be correct, and doubted the integrity of state police and administration to begin with, and ended with eggs on its face, after the outcome.
But pause a little to understand the likely impact of this multi-phaseted election: One, the voters in different phases would be exposed to different issues, if there are certain signficant intervening events. Second, the candidates and the voters in the latter phases, would invariably be exposed to a longer campaign period, than what is statutorily envisaged (14 days), resulting in greater expense and suspense. These factors would inevitably compromise the so-called level-playing field for the various stake-holders, which in turn, would only make the promise of free and fair elections meaningless. In that context, would it make sense to talk of a state-wide mandate, if at all there is one?
Arun referred to the pressures of pragmatism over principles. But the logic of pragmatism is clearly against the E.C.'s decision. Why on earth 100 per cent CPMF cover? The E.C. can make any number of micro-interventions to keep the police and administration on tenterhooks. The former CEC, Dr.M.S.Gill once suggested placing the states under President's rule prior to the notification of assembly elections. All the parties unanimously opposed the proposal for what it is: it is not only against the Constitutional scheme, but militates against the federal character, as the same logic cannot be extended to the Centre, when there is a Lok Sabha poll.
There appears to be a consensus that imposition of President's rule in U.P. - notwithstanding Mulayam Singh Yadav's bad record in office, and the possible misuse of state machinery during the elections - would be clearly contrary to the letter and spirit of the Constitution. Is it fair to bring in President's rule de facto through the E.C.'s decision to bring almost all polling stations under the CPMF? Supposing if a state is going to the polls under the President's rule, and a government preceding the President's rule was accused of playing havoc with the neutrality of the police force, would the E.C. still go for 100 per cent CPMF cover? It may not. It would identify those partisan police officers, and demand their transfer or other forms of punishment during the polling process. One does not understand why the same cannot be tried in U.P. under Mulayam.
Let us understand the logic of deploying the CPMF. It is to instil confidence among the voters, who would otherwise face intimidation and threats from vested interests, in the face of an apathetic or partisan state police. To say that the entire electorate in a state suffers from such fear and intimidation is making too tall a claim, which cannot be sustained by any stretch of argument.
Lastly, Vivek's last comment bares it all: the E.C. has no courage to publicly share something, if it believes it is the truth that the state police machinery does not inspire confidence in holding a free and a fair election. Clearly, the E.C.'s so-called belief is implicit in its decision, even though it has not mustered the courage to declare it publicly. Is not this implicit -unexpressed - belief sufficient enough to undermine the morale of the State police? If the E.C. is convinced that it will undermine the morale, would it not be advisable to look for more practical, and sensible remedies, after due discussion with all political parties, and publicly sharing the truth about the risks (that is undermining the morale of the state police) involved in taking such a decision, so that the parties and the nation are taken into confidence? In other words, why should the E.C. feel shy of admitting a truth when it subscribes to the nation's avowed motto of satyam-eva-jayate!
P.S. For more on this topic, please read my article in Frontline, and the interview with Mr.Prakash Karat, CPI(M) general secretary.

Saturday, March 03, 2007

Election Commission of India's non-transparent role

India has just completed assembly elections in Manipur, Punjab and Uttarakhand. And India's largest State, Uttar Pradesh is going to the polls in May-June. As usual, the Election Commission - independent three-member body to conduct and supervise elections - is sure to bag all the credit for the free and fair polls. But it is amazing to witness media's lack of interest in some of the crucial decisions that the E.C. takes. In 2005, the E.C. decided to bring all the polling stations in all the assembly constituencies in West Bengal under the control of the Central Para Military Forces (CPMF), completely keeping out the state police from manning the polling stations. The unstated reason was that the E.C. wanted to ensure a complaint-free election. Similarly, in the ensuing U.P.assembly elections - faced with the complaints that the present care-taker Government of Mulayam Singh Yadav may not ensure an impartial policing during the polling process - the E.C. appears to have decided to bring 95 per cent of the polling stations in the State under the CPMF. The decision in West Bengal invited a sharp rebuke from the CPI(M) which won the elections there, in the form of a comprehensive note. The basic thrust of the note was that the E.C. undermined federalism, by suspecting the role of the state governments selectively, and imposing the CPMF on the state, thus conveying total lack of trust in the state police. In the West Bengal elections, the E.C. could not manage the availability of CPMF during the last phase, and had to bring in the state police, thus rendering its own decision impractical. If so, why alienate the state police in the first place, and lower their morale? Has not the E.C. learnt any lessons from this, while taking a similar decision in U.P.?
Seeking to break the E.C.'s silence on the issue, I filed an application under the Right to Information Act, and wanted to know the reasons for the E.C.'s decision in West Bengal. The answer was that the E.C. did not have any file notings on this, and that the decision was taken on the assessment of the "ground situation". Can there be a vaguer reply than this? Is not the E.C. accountable for its decisions, and bound to give specific reasons for its decisions? Hopefully, my appeal to the Central Information Commission will provide the answers.

Thursday, March 01, 2007

Appointing Judges: A reaction to Abhishek Singhvi's analysis

In a recent post, V. Venkatesan draws attention to Abhishek Singhvi's thoughts on the perennially controversial issue of judicial appointments in India. While I agree with the general comments made in that post by Venkatesan, I seek here to respond to a specific point. In his piece, Singhvi raises the following question:

"[T]he demand for a "broadbased" commission with political and other elements external to the judicial family as its members has to be viewed in the context of the larger issue of judicial independence. Such a commission would be nothing more than another mixed collegium. If there is bargaining or pulls and pressures within the judicial fold, it will not only increase manifold but also be more public in such
a commission. Over time, the cherished virtue and value of judicial independence would be undermined. One cannot brush aside the fact that despite warts and all, India remains an unparalleled example of constitutionalism amid the wrecks and ruins of democracy that litter the South Asian (and global) landscape of newly independent nations. To a large measure this is because of fierce judicial independence, despite aberrations at the individual level. Can we afford to risk it with the political and other classes having a direct say in judicial disciplining?"

Singhvi's argument seems to be: if it isn't broken, do we need to fix it? As V. Venkatesan points out, a number of commentators and observers have pointed out that the present system is riddled with several problems (even it is not broken yet), and is in dire need of fixing. Singhvi's argument seems to be that when viewed comparatively, the Court's overall assessment is positive, and this should make us think about changing its institutional features. This seems to a strange argument - firstly, it is not at all clear that there is a corresponding link between the Court's overall record and the manner in which judges are currently appointed. More specifically, it has not been established that the Court has done better in the last decade or so since it began appointing its own members, than at previous points in its history when its members were appointed with inputs from a broader set of constitutional actors. To make this argument, Singhvi would have to argue that the judicial appointees over the last decade have been qualitatively better than prior judicial appointees, which is a tough argument to sustain empirically. Secondly, the Court's overall track record owes more to its achievements in periods when appointments were made under older systems than directly to appointments made under this new system. Indeed, as has often been pointed out, the appointments of some of its most well regarded judicial members were initially perceived as not being indicative of judicial independence (recall here Soli Sorabjee's criticism of Justice Krishna Iyer's initial appointment which he later famously recanted by submitting his admiration for Justice Iyer's overall record as a Supreme Court judge). So, it is not clear that changing the current appointments system will have a clearly negative effect on the overall independence and efficacy of the system.

Singhvi also appears to believe that having a broadbased system will necessarily lead to the undermining of judicial independence. It is not clear why this should be so, though one can agree that there is a need to design the process carefully. So, for instance, we should be skeptical of any approach which seeks to import the current process of appointing judges in the U.S. into India, given that that system seems to have huge problems as acknowledged by U.S. scholars and judges. This is so despite the fact that the last two times the process was in place (in the appointments of Chief Justice Roberts and Justice Alito), it avoided some of the more extreme patterns that were so characteristic of earlier appointments (the glaring example being the appointment of Justice Clarence Thomas). However, no one in India is suggesting that model as an inspiration. Instead, the model that has often been proposed in India is similar to what has been in force in South Africa under its new constitutional regime for over a decade.

A proper assessment of the South African model of judicial appointments would require a long paper - here, I seek to point out its broad features in a bid to raise the question whether we should be as dismissive of such a measure as Singhvi clearly is. The South African Judicial Service Commission's members include the following:

* The South African Minister of Justice
* The Chief Justice of South Africa
* Two practicing advocates
* Two practicing attorneys
* Six members from the South African National Assembly (including three from opposition parties)
* Four members from the National Council of Provinces

The South African Judicial Service Commission has been in place since 1994, and this link provides details of the first set of interviews conducted by it to appoint the members of the South African Constitutional Court. Going over these interviews, one is struck by the contrast with the questions posed to American judicial appointees, and it is clear that the South African process seeks to (and does) avoid the problematic aspects of that system. By making the transcript of the interviews available publicly, there is an element of transparency which aids the stature of the judiciary in South Africa, instead of impeding it. The functioning of the JSC has not been without controversy, however, and as is to be expected, some of its decisions have been controversial, inviting debate and discussion about the correctness of at least some of those decisions. In particular, there has been debate about whether the interviews conducted by the JSC should be open to the public, raising concerns similar to what Singhvi seems to share. This is an engaging and interesting analysis of the overall efficacy of the JSC by a prominent South African legal journalist, who makes a strong case for retaining the public element of the proceedings of the JSC:

"The great conundrum about the immense power wielded by an unelected judiciary can only be resolved if judges are held accountable, although of course this has to be done in a subtle and complex way, including the system of precedent and collegiality. One of the most visible manifestations of this accountability to the ordinary public, is the moment when a candidate is interviewed and asked about his or her background, or for views on important questions like sentencing perhaps. There is a legitimate and powerful public interest in who gets appointed as a judge, and to keep the public from these hearings would be to inhibit democratic development. ... And of course, in conclusion, we should never forget that the greatest protection from threats to independence from the executive must surely come from the exercise of public and media scrutiny."

The system of judicial appointments in South Africa is certainly worth exploring seriously to see if it may have insights and practical measures of value for the current debate over the issue in India. Singhvi may well be justified in displaying the obvious pride he has in the record of the Indian judiciary. However, such pride must not lead to the unfortunate corollary of a sense of parochialism which prevents us from learning from comparative experience in a bid to improve (or maintain, depending on what your take on the court is) the institutional efficacy and status of the higher judiciary in India.

How Law Blogs are changing legal discussion and legal education: Interview with Jack Balkin

This is a bit dated, but recent posts and discussions on this blog have reminded me of the relevance of some of the ideas mentioned by Jack Balkin, who teaches at Yale Law School, and has been an early advocate of law blogs and the use of technology to advance legal knowledge and discussions. Though commenting on the phenomenon as it exists in the U.S., some of his thoughts are applicable to a broader context. I am including some of his quotes from an interview with the Yale Law Report here, but the entire interview makes for interesting reading.

"YLR: How is legal blogging changing legal discussion and legal education?

Balkin: Blogging changes the relationship between law professors and their audiences because professors can reach more people. It changes the relationship between law professors and journalists because law professors don’t need journalists to get their ideas out to the broader public; conversely, blogging makes it easier for journalists to find the right experts to interview. It changes the timing and pace of legal scholarship because law professors can talk about cases the day they come down, driving the discussion forward in a very short time rather than through a series of law review articles that may take years to appear. Just as the Internet collapses the news cycle, it also collapses the publication and discussion cycle. It produces a type of legal writing that is more journalistic, more personal, and more driven by current events.

Compared with traditional legal scholarship, blogging produces a different combination of analysis and opinion. The conversation is more informal, and it progresses very quickly. People also use sources differently: they cite to supporting information or authorities by linking to them, so that you can see the evidence for yourself.

... ... ... This is the first generation of law students who are going to law school after the rise of the blogosphere. If you went to law school a few years ago, you were totally immersed in the experience of a single law school, and your professors (and the law library) were the main sources of expertise. Now law students can hear legal opinions from law professors and their fellow students around the country-- and around the world-- on almost any topic they desire. The blogosphere becomes part of your legal education. That didn’t really exist before.

... Blogging is both a way of participating in the Internet and a way of learning about it. I have learned more about how the Internet affects public discourse from being a blogger than I would ever have learned from reading what other people had to say about it. There’s no substitute for participating in the medium if you want to understand what the medium does: how it affects your relationships with other people; how it affects the work and the status of law academics; how it affects the dissemination of legal ideas throughout society; how it changes the law professor’s calling; how it changes the nature of legal education. It’s much easier to see what’s happening from a blogger’s perspective.

... The blogosphere not only routes around the traditional mass media, it also gloms onto it, commenting on it and criticizing it. Conversely, the traditional mass media increasingly turn to the blogosphere for fresh content, and it’s no accident that newspapers and magazines are becoming more interactive in their online versions and even starting their own blogs. The shape and structure of the public sphere is being transformed by the blogosphere."