Sunday, February 28, 2010

Supreme Court & RTI - the continuing saga

Here are the latest RTI query from activist Subhash Chandra Agrawal and the reply from the Supreme Court. Also, it is now clear from Supreme Court's reply to another RTI applicant, Deepak Khosla, that the CJI himself directed the SC Registry to challenge Justice Ravindra Bhat's judgment in the assets disclosure case in Delhi High Court. Is not the CJI himself contradicting his position that his office is different from that of the Registry? Supreme Court has refused to answer Khosla's other queries about decision making of CJI and the Judges in this case, and in the case of non-elevation of Justice Shah (which is now before the Supreme Court itself as an appeal against the CIC's decision) saying it had no information. The Supreme Court has further replied to Khosla that it has not yet appealed against the January 12 Full Court judgment of Delhi High Court in the assets declaration case.

Adoption Rights of non-Hindus and Constitutionality of Personal Laws

Shabnam Hashmi has filed a PIL in the Supreme Court challenging 'a law which denies a child a right to inheritance if s/he is adopted by non-Hindu parents.' The case is surely going to be contentious, given its implications for personal laws.

I am grateful to a reader for drawing my attention to the case of Manuel Theodore, where 'in the absence of legislation', the Bombay High Court recognised the right of a Christian parent to adopt a destitute and orphaned child. Justice Rebello interpreted Article 21 to hold that 'the right of the child to be adopted and consequently to have a home, a name and a nationality has to be considered as part of his right to life.' [para 19] What is more interesting, to my mind, is that the Court goes on to recognise a right to adopt on part of the parents flowing from Article 14:

In so far as the adoptive parents are concerned, it flows from the right of such parents from Article 14 of the Constitution of India even amongst those couples whose belief or customs do not provide for adoption. They cannot be discriminated from adopting a child without the State being accused of arbitrariness and infracting Article 14 of the Constitution. Once a couple is permitted under the Guardians and Wards Act of being capable of taking a child in guardianship the consequence must follow that the legal guardian can move the Court for adoption of the child in order to fulfill the constitutional objective of such a child to have a home, a name and a nationality. The Court no doubt has strayed into the area of personal law in what I may describe as the post adoption stage. Though adoption by itself is a fundamental right of an orphaned, abandoned or destitute child, the legal consequence of being given in adoption will entail application of Family Law or what we term as Personal law. This to my mind will not have the effect on the rights of any citizen to profess his religion guaranteed under Article 25 of the Constitution. The Special Marriage Act is in force. Any citizen of the country can marry under the said Act. Marriages and Divorce of those who marry under the said Act are governed by the said Act. Succession by the Indian Succession Act. People professing different faiths marry under that said Act. The vision of the new millennium must guide our religious leaders. Their broad vision can lead their flock to understand religions, as the founders of Religions would have wanted their followers to follow, love and tolerance must be the cornerstone. Religious teachings must undergo the same interpretative processes much as Judges to through for finding answers to justice social, economic and political. [Para 28]

Without referring to it directly, Bombay High Court appears to have overruled its decision in Narasu Appa Mali by holding that:
'the right of such child to be adopted, is not pursuant to any personal law. The right of the child is independent, as a human being, and flows from his right to life as contained in Article 21 of the Constitution. Any eligible parent or parents irrespective of religion can apply to adopt a child. Personal laws, as pointed out earlier, have to meet the test of Part III of the Constitution, if they are to be saved.' [para 30]

But as the discussion in the comment section of this post shows, it is still arguable, Manuel Theodore notwithstanding, that Mali continues to be good law. One hopes that Hashmi's petition will force the Supreme Court to take note of all precedents and arguments on both sides to rule clearly on the constitutionality of personal laws.

Friday, February 26, 2010

Arbitrariness in access to justice

By Renu Gupta
Guest Blogger

This post refers to Supreme Court's decision in State of Uttaranchal v. Balwant Singh Chaufal (PIL Guidelines Case)

Justice Dalveer Bhandari and Justice Mukundakam Sharma recently rendered a judgment in this case, which was an appeal from the decision of the High Court of Uttarkhand in a public interest litigation. The High Court had directed the state government to decide whether appointment of an Advocate General for the state of Uttaranchal beyond the age of 62 years, was valid or not.

The law on this issue is settled that there is no upper limit on age for a person to be appointed to the constitutional post of an Advocate General. The appeal was allowed.

This judgment raises certain interesting issues about the need to regulate the field of public interest litigations. In paragraph 198 of the judgment, certain guidelines have been framed by the court. Here, I have given a gist of those guidelines along with my comment.

1. Encourage genuine and bona fide PIL.
Comment - This guideline is not new and has been reiterated by courts in almost every PIL.

2. High Courts to formulate rules for encouraging and discouraging PIL.
Comment - The judgment is silent as regards why there should be no such uniformity in the Supreme Court in entertaining PILs. Further, implementation of such a guideline will clearly result in judicial legislation in a sphere where there is no law. In a system where we still follow separation of powers (increasingly being diluted by the judiciary) the sphere of legislation should be left to the legislature.

3. The Court should verify the credentials of the petitioner.
Comment - Considering the volume of litigation in India, it is doubtful as to how useful and practical this exercise could be.

4. The Court should prima facie satisfy itself as to correctness of petition.
Comment - Since a petition is supported by an affidavit of the petitioner, in case of a false statement made therein, he can be liable to be prosecuted for the offence of perjury.

5. The Court should be satisfied that substantial public interest is involved.
Comment - This can only be done once the court hears the parties on merits.

6. The Court should ensure that petition which involves larger public interest and urgency should be given priority.
Comment - This is arbitrary and violative of the spirit of Article 14 itself, as the judiciary is going to discriminate between two litigants on arbitrary grounds.

7. The court before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.

8. The court should ensure that the petitions filed for ulterior motives must be discouraged by imposing exemplary costs.
Comment - This guideline is not new and this can only be done once the court hears the parties on merits.

In a case, titled University of Kerala v. Council of Principals of Colleges, Kerala, decided on November 11, 2009, reported at (2010)1 SCC 353, Justice Katju and Justice Ganguly have referred the question of judicial legislation by courts in PILs, to a larger bench.

At paragraph 18 of the judgment (from manupatra citation), the court (Justice Ganguly wrote a separate but concurring judgment) observed that:

“In my respectful opinion, once the Committee's Report was received by the Court, the Court should have thereafter, instead of passing a judicial order directing implementation of the recommendations, sent it to the appropriate Legislature or its delegate (which in this case is the University which can make delegated legislation in the form of Statutes or Ordinances). It is for the Legislature or the concerned authorities to make a law accepting the Report in toto or accepting it in part, or not accepting it at all but it is not for the Court to pass judicial orders for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary.”

At paragraphs 27 and 28, the court held that:

“27. It is not necessary to refer to the other decisions of this Court where it has assumed legislative or executive powers, but the time has come when a thorough reconsideration by an authoritative Constitution Bench is required about the constitutional correctness of these decisions.
28. Hence, I refer the following questions of law, preferably to be decided by an authoritative Constitution Bench of this Court, to be nominated by Hon'ble the Chief Justice of India:
1. Whether the Court by an interim order dated 22.09.2006 can validly direct implementation of the Lyngdoh Committee's Report;
2. Whether the order dated 22nd September, 2006 really amounts to judicial legislation;
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection; and
5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State.
29. In our opinion, these are questions of great constitutional importance and hence, in our respectful opinion they require careful consideration by a Constitution Bench of this Court. The matters we are referring to a larger Bench are occurring in a large number of cases all over the country and indeed all over the world. Hence, the issues we have raised have to be decided after careful consideration preferably by a Constitution Bench and after hearing learned Counsel for the parties, and also taking the help of some senior counsel as amicus curiae.”


There are no settled legal principles for judicial legislation in an area where there is an existing vacuum and even reference of this question to a larger bench does not address the present situation. Pending decision of the Supreme Court, on the question referred, various High courts and the Supreme Court have been entertaining PILs and effectively judicially legislating. For instance, in the case regarding night shelter for the homeless in Delhi, the bench comprising of Justice Dalveer Bhandari has framed certain guidelines.
There are certain judges, [like Justice Katju] who are reluctant to entertain PILs which necessarily involve judicial legislation. However, there are other judges, who want to be compassionate and therefore frame guidelines in PILs. This results in a situation where access to justice for a litigant is arbitrary in itself, since he is more likely to get a relief if his case gets listed before a pro-PIL judge.

[The author practices as an advocate in Delhi]

Supreme Court's CBI judgment

The judgment in the case of State of West Bengal v. The Committee for Protection of Democratic Rights has not got the attention it deserves. Except Rajeev Dhavan's article, there has been no serious attempt to critique the judgment. The case involved answering the question whether the High Courts can direct the CBI to investigate into a crime, without the consent of the State Government. The Supreme Court answered this question in the affirmative.

The judgment is significant for further expanding the scope of Article 21. The Court has held that Article 21 not only takes within its fold enforcement of the rights of an accused, but also the rights of the victim, and that the State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain circumstances, even a witness to the crime may seek for and shall be granted protection by the State. [Para 44:ii]

This positive feature apart, there are some noticeable flaws in the judgment, apart from those which Rajeev Dhavan has pointed out. Here are some of the flaws, as I understand.

1. The Court has not answered the question whether Judicial review would enable a High Court to substitute itself in the place of State Government or the Centre. There is no dispute over the Court's claim that judicial review acts as a final arbiter to give effect to the distribution of legislative powers between Parliament and State Legislatures, and to show any transgression by such entity. [Para 44:iii] But this case involved neither of these two issues.

2. Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure, because the Courts act as guardians and interpreters of the Constitution whenever the federal structure is violated by the legislative action. [Para 44:iv] Correct. But the present case did not involve a similar issue.

3. The Court claims (Para 44:v) that Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226. This is confusing. How does the Court claim this power? The Constitution restricts Parliament from encroaching on the State's rights by distributing the legislative powers between them. How can the Courts justify similar encroachment by themselves, even while restricting Parliament from doing so?

4. Para 44:vi is even more confusing. Entry 2A of List I is about deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State. Is the CBI -which is not an armed force -subject to the control of the Union? Entry 80 of List 1 makes it very clear that extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State would require the consent of the Government of that State in which such area is situated. Overlooking these express provisions, the Court justifies its exercising the "same power" (Non-existent!) which the Union could exercise in terms of the provisions of the statute.

5. If Para 44:vii is any guide, then judicial review henceforth would mean that the Courts can substitute themselves for State and Central Governments, whenever they don't exercise their responsibilities assigned to them under the Constitution, for whatever reason or no reason. Thus if the State Government concerned has not given its consent for the CBI investigation, there is no problem; the High Court can give the same consent on behalf of the State Government. Can this be stretched to other matters? - if the President does not decide a mercy petition, can the Supreme Court or a High Court step in, and decide on her behalf?

6. Para 46 of the judgment classifies the victims, whose rights the Court has sought to defend in this case, rather unreasonably. It is only those victims of those incidents with national and international ramifications who deserve the Courts' intervention in the absence of State Government's consent, to direct CBI investigation. Or if the investigation by the State police lacks credibility or does not inspire confidence. The CBI's own reputation and limited manpower apart, has the judgment opened a Pandora's box, because it is common to find all manner of victims alleging bias, when the State police investigates? If the Courts have the discretion to decide whether in a particular case, the State police lacks credibility or does not inspire confidence, then it will be difficult for the Courts to justify its discretion - in the absence of clear guidelines - inviting the charge of arbitrariness.

Wednesday, February 24, 2010

Plane-spotting in the times of terror

The Delhi Police has arrested two British plane-spotters under charges of spying. This is not the first case of overzealous, humourless officers hounding eccentric-but-essentially-harmless-nerds: some 9 years ago, in a very similar incident, Greece went to the extent of trying and convicting four plane-spotters. Hopefully better sense will prevail in India.

See also: Bhairav Acharya on the joys of plane-spotting.

NLSIR Symposium Announcement

The National Law School of India Review (NLSIR), the flagship journal of the National Law School of India University, Bangalore, will be hosting the 3rd Annual NLSIR Symposium, 'Indian Corporate Law and Corporate Governance: At the Crossroads', in Bangalore, on 10th and 11th April, 2010.

The NLSIR Symposium seeks to address crucial issues in contemporary corporate law and governance. There is no more appropriate time to consider this area of law. The Satyam episode has provoked widespread concerns regarding Indian corporate governance mechanisms. Even outside the area of corporate governance, it is necessary to ask whether the 1956 Companies Act continues to serve the interest of Indian corporations, their stakeholders and the Indian public. Does the proposed Companies Bill even begin to address these questions? What is the fate of the National Company Law Tribunal (NCLT) and company adjudication generally? These are some of the questions that it is necessary to urgently resolve, to understand the journey Indian company law has had over the past fifty years, and the course it must chart in the future. The four Sessions of the Symposium will seek to analyse these and other related issues.

Panelists at the Symposium include Mr. Sandip Bhagat (partner, S&R Associates), Mr. V. Umakanth (former partner Amarchand Mangaldas and Ph.D. scholar, National University of Singapore), Mr. Somashekhar Sundaresan (partner, Jyoti Sagar Associates), Mr. Siddharth Raja (partner, Narsappa, Doraisamy and Raja) and Ms. Kristin van Zwieten (D. Phil. scholar, University of Oxford). Leading members of the Bar and from the judiciary are also expected to attend.

Submissions and Participation as Delegates:

The NLSIR invites contributions of up to 10000 words on any of the themes to be discussed in the Symposium. Selected papers will be presented by the authors at the Symposium and will be published in the Symposium issue of the NLSIR. Contributions, and requests for any further information, may be mailed to Practitioners, academicians, corporate houses and students are invited to register as delegates. Further details will be available on request. Special packages are available for group registrations. Interested readers can contact the Organising Committee of the Symposium at the above email addresses.

Tuesday, February 23, 2010

From the latest Frontline....

The FL's cover story on GM debate reflects the diversity of views on the contentious issue. In my piece, I have traced the cases in the Supreme Court, and how the petitioners could be credited with ensuring accountability of the Government.

In my second piece, I have written at length on the significance of the Delhi High Court's judgment in the Manushi Sangathan case. I have also reflected on the non-elevation of Justice A.P.Shah to the Supreme Court, though in the light of what has subsequently come to light, something more needs to be written to expose the Collegium.

Lastly, my review of four-volume study on State of Social Justice in India edited by Ranabir Samaddar, brought out by Sage.

Dworkin had Hand

While I am interested by the fine legal arguments and counter arguments which have been made here regarding the retirement of Justice A.P. Shah, and the wider debate concerning the elevation of judges to the Supreme Court, in this piece in the Indian Express, I take a step back: arguing that the hierarchy of the forum from which a judge retires should not concern us as much as it seems to do in India, especially when we're measuring the difference between the posts of High Court Chief Justice and Supreme Court judge. I am informed that Ronald Dworkin was said to have turned down a clerkship at the American Supreme Court after having clerked with Judge Hand: a gentle reminder that the forum’s status can only matter so much when we go to measure a person’s contributions to the development of the law.

Sunday, February 21, 2010

Appointing Judges: How India can learn from Pakistan

It may be just a coincidence that even as Indian public opinion deplores the non-elevation of Justice A.P.Shah to the Supreme Court, Pakistan too is debating the Presiden's power to appoint Judges to the Supreme Court. In this article, Kuldip Nayar tells Indian Judges that they must learn from Pakistan Judges who refused to take oath without the consent of the CJP. Interestingly, Nayar gives graphic details of the Collegium meeting which failed to recommend Justice Shah, and suggests that Parliament should intervene to stop the abuse of collegium by individual judges to score points over others. In another piece in Mail Today, Najam Sethi offers a critique of CJP's stand on the appointments issue.

Friday, February 19, 2010

Justice Shah's non-elevation: Response to Argya

I thank Argya for his extensive comments on my post. I wish he also responded to Points 5 and 6 of my previous post, which clarify some of the issues. Now, let me come to the specifics.

1. I referred to Supreme Court not setting aside Article 124(2) only for the sake of argument. Of course, it could not have. That was the reason why I suggested that the President’s options under Art.124(2) are still secure.

2. I did not say Proviso ipso facto makes 124(2) redundant. My argument was only that the Second and Third Judges judgments made it appear as if it was redundant, and that it was the Proviso that mattered. I wish I made this point clearer earlier. Even now, the understanding is that the President is not supposed to consult any other Judge on her own, because the Second and Third Judges judgments have laid down an elaborate procedure for consultation with the CJI. This, in my view, is a flawed understanding and does not follow from the Second and Third Judges cases.

3. I agree that according to these two judgments, opinion of the CJI and the Collegium conveyed to the President is determinative. But is it also exhaustive of the options before the President? I disagree. Having used Article 124(2), the President can effectively consult CJI under the Proviso, on names which were not forwarded for her consideration by the CJI and his collegium - which would mean the CJI must consult the Collegium on the names suggested by the President, in the light of her consultations under Article 124(2), and give her the due response of the Collegium.

4. The Collegium could not have disapproved the appointment of Justice Shah, because only one member of Collegium opposed him. The CJI’s failure to communicate the minutes of the meeting which discussed Justice Shah, to the President, therefore, was not in consonance with the Judgments, and this does not prevent the President from exercising her options under Article 124(2), and asking the Collegium to respond to her on Justice Shah. The Third Judges judgment only gives immunity to the Collegium from divulging strong and cogent reasons for not recommending a person. The President need not ask the Collegium reasons for rejecting Justice Shah, but can certainly ask details about the voting pattern of the members when the Collegium discussed his appointment.

5. The following paragraph in the Third Judges judgment is the basis for my view that the Court confused A.124(2) with the formation of CJI’s view. The Court was not silent on this issue. Actually, the Court must have relied on the Proviso to suggest that consultation with the CJI means consultation with the plurality of Judges. Instead, it sought to take away the President’s privilege of consulting any Judge who she deems fit to consult, by insisting that she consults only the CJI and the members of the Collegium. Why should the Court prevent the President from consulting Judges outside the Collegium?

Article 124(2) is an indication that ascertainment for the view of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.

6. I am unable to understand why consultation with the outgoing CJI for appointing his successor should appear absurd. The Proviso to Article 124 and its interpretation seem bizarre. Can there be a better explanation for the way the Proviso has been drafted?

Guest Response to 'Supreme Court's Loss: How can it be remedied?'

The following is a response to Venkatesan's earlier post titled 'Supreme Court's Loss: How can it be remedied?' from Arghya Sengupta, research student, University of Oxford.

Dear Venkatesan,

Thank you for your post. A few of my responses to some specific points you made are below:

You said:
1. There is a grey area in both the Second and Third Judges Cases as far as how the President must consult the CJI. If you read Article 124 and the judgments in these two cases carefully, you would notice that the Supreme Court did not set aside Article 124 (2)which says that the President shall consult with such of the Judges of the Supreme Court and of the High Courts in the States as she may deem necessary for the purpose. It is surprising that the President never exercised this responsibility at all since 1993 when the Second Judges Case was decided. Even prior to 1993, the President (that is, in aid and advice of the Council of Ministers) appears to have consulted only the CJI, and not other Judges.

A semantic quibble. The Supreme Court obviously cannot “set aside”Art. 124(2), it being an article of the Constitution. Second, you are mistaken in your assumption that the President never exercised this responsibility prior to 1993. In fact there have been several occasions in the past, where such a "responsibility" was indeed exercised. A case in point which immediately comes to mind is the elevation of Justice Wanchoo to the Supreme Court, over a lot of more senior judges where in fact such consultation was widely held. I do agree with your general point however that nothing in the Second or Third Judges cases prohibits the President from consulting such other judges, this being a privilege granted to the President.

You said:
No doubt, the judgments in the Second and Third Judges Cases explain how the consultation with the CJI must be held, that is, through the Collegium, and that consultation must be effective (not concurrence) But it could not have been the intention of the Supreme Court that the Proviso to Article 124 would leave the Article itself redundant.

Two points in this regard. First, the fact that a proviso does not override the main section is a rule of statutory interpretation which is used by a Court. It is not legitimate to use this tool to the court’s ruling itself, i.e. to say the Court did not intend to override the main section, as it is not a statute. Second, the proviso to Art. 124(2) has an interesting history. The intention of the drafters as evidenced in the CAD was to ensure that the President, unlike the Crown in England, did not have unfettered discretion in appointing judges. Hence he/ she would have to consult people who were well-qualified to tender advice. The CJI was hence an obvious candidate. However the President would also have to appoint the CJI in which case a mandatory consultation procedure with the CJI himself would be absurd! Hence to make a distinction between appointment of judges generally (Art. 124(2)) and judges apart from the CJI specifically (Art. 124(2) proviso) the proviso was incorporated. Too much should not be read into how it makes the main provision redundant since its intention was not to supplement the main provision but rather add a compulsory requirement, which owing to drafting requirements, was best incorporated through a proviso.

You said:
Therefore, having consulted the CJI through the Collegium, to satisfy the Proviso, the President could still appoint Justice Shah on the basis of her consultation with other Judges of the Supreme Court or the High Court, who may or may not be part of the Collegium which could not recommend Justice Shah.

The President cannot make such an appointment because the same question had been decided in both the SCAORA and the Third Judges case that the opinion of the CJI and the collegium conveyed to the President is determinative. In the case of Justice Shah, the media reports suggest that on both occasions, the collegium did not approve the appointment of Justice Shah. Given this non-approval the President could not have taken the opinion of other judges under the proviso and appointed Justice Shah. What could have been done however was for the CJI to continue to recommend appointment with the dissenting note of the dissenting judge attached for the President's consideration. It is then that acting on the CJI's opinion, the President could have appointed Justice Shah. However this does not seem to be what actually transpired. Given the non-recommendation from the collegium the President cannot appoint Justice Shah.

You said:
In the Third Judges Case, the Supreme Court confuses Article 124(2) with how the CJI ought to form his view in consultation with other senior Judges. Article 124(2) refers to President's privilege to consult any Judge whom she deems fit. This privilege cannot be compromised with that of the duty of the CJI to consult his colleagues to form his view.

Though there are a lot of deficiencies the Third Judges case suffers from, this I believe, is not one of them. When the Supreme Court refers to Art. 124(2) and the need for a collegium with whom the CJI must consult before forming his view, it obviously refers to the proviso itself since the Chief Justice is not even mentioned in the main clause. The Court does not say anything about the President’s privilege to consult other judges in this clause. Silence in this regard cannot be deemed as confusion.

You said:
2. The above interpretation is valid because the judgment in the Third Judges Case throws light on when a Collegium's recommendation may not be binding on the President, that is, in the area of non-appointment of a Judge for cogent reasons.
As the media reports reveal, Justice Shah's name was not favoured by only one member of the Collegium. All the remaining members including the CJI favoured him. Therefore, even if the President appoints Justice Shah, it will be in conformity with the view of the CJI, thus satisfying the requirement of the judgment in Third Judges Case.
There is nothing in the Third Judges Case judgment which says that the CJI can recommend an appointee only if there is a consensus within the collegium. The Court saw consensus as an ideal, but clearly said a recommendation could be sent, if there is majority support including that of CJI within the Collegium. That is, it does not envisage a veto to any member of the Collegium except to the CJI, who has primacy. Therefore, if the Collegium had not sent the recommendation on Justice Shah because of the opposition of one member, then it is certainly not in conformity with the judgment in the Third Judges Case, and therefore, not binding on the President.

I agree with the thrust of your argument entirely. The media reports, as you yourself state in paragraph 4 suggest that on both occasions when the collegium had to recommend appointment, it refused to do so despite the fact that the CJI was not the opposing member. If in fact there was only one opposing member, then the CJI perhaps should have, as I suggested in the point aforesaid, recommended the appointment with the dissenting note of the Justice attached for the consideration of the President. I make this point cautiously since the facts of this case are not known and this point is based on what the media report stated. For the collegium itself to have not recommended the appointment on both occasions, only, as it seems, owing to the insistence of one member (a practice that seems to have become common) is not only not a practice laid down by the Judges’ Cases but also against the spirit of the Constitution. In the CAD, B. R. Ambedkar believed that no single person should have a veto over the process of appointment (Speech on 24th May, 1949). Ambedkar was referring to the President and the CJI. Surely he would have been shocked if a single judge of a non-contemplated collegium had come to exercise the power! Anyhow the President could only have appointed Justice Shah if there was a positive recommendation from the Collegium which seems not to have been the case here.

You said:
4. It appears that the President requested the Collegium to reconsider its non-recommendation of Justice Shah, and still the recommendation to appoint Justice Shah was not forthcoming. Here, the question of Collegium reiterating its non-recommendation in order to make it binding on the President does not arise. Reiteration is binding on the Government only in the context of recommendation to appoint, not recommendation to not appoint or failure to recommend an eligible appointee. Here is the December 2008 CNN-IBN report on the Collegium's refusal to reconsider its non-recommendation of Justice Shah.

You are quite correct insofar as the point of law on reiteration and bindingness of the reiterated recommendation is concerned. But the question here is not of reiteration at all. As you yourself state, and the media reports make clear, the collegium never in the first place approved Justice Shah’s recommendation. This, having not been done, there was no way in which the President could have bypassed the collegium. This argument again is made on the assumption that the collegium refused to recommend Justice Shah and not that the CJI and four members actually did recommend appointment and one judge declined. If that were the case, then I agree with you that the President was well within her constitutional limits to appoint Justice Shah.

A General Comment:
There are two larger points here which would be interesting to hear comments on. First, as this discussion ironically makes clear, there is considerable lack of clarity regarding the facts of what actually transpired in the process of the non-recommendation of Justice Shah. It is a subtle but significant pointer to the urgent need to ensure greater transparency in the process of judicial appointments. Second, the reason the interpretation of the Second and Third Judges’ cases are so contentious is because both these cases are blatant exercises of judicial law-making. And with any law-making exercise with subsequent practice there are bound to be gaps which will be thrown up. In fact, any discerning reader who reads Para 45 of the Manupatra judgment in the Third Judges’ Case will be able to pick innumerable contingency situations not dealt with. It is imperative hence that whichever system is instituted for judicial appointments is done through the legislative processes of law-making rather than through the narrower and wholly inappropriate confines of a judicial decision. If we want to ensure that a similar fate does not befall similar erudite justices such as Justice Shah, it is necessary to look not only at the ends which are adopted but the means used to reach those ends. Failure to do so will lead to more bad law and a half-baked jurisprudence.

Guest Article by Vasudha Nagraj on lawyers and the Telengana movement

Lawyers, Cases and the Telangana movement


Vasudha Nagraj

The agitation for separate Telangana, by the students of Osmania University, has drawn severe repression from the police. For the past two months, the campus has been converted into a war zone with police patrolling the entry and exit points, blocking the minor exits with barbed wire, and hordes of police in different coloured uniforms and weapons, in all readiness to wield the baton. More than 10,000 criminal cases including serious offences such as S 307 (attempt to murder) have been regsitered against the agitating students. The power to arrest and remand is being used by the police indiscriminately. One is well aware that the prospects of being arrested and remanded under serious offences is a condition which can be extremely debilitating. The physical wounds of the lathicharge may heal, but the fear of being an accused in a criminal case haunts a person for the next five years or more. It is not too difficult to imagine how it works in the mind of a student who is barely in her twenties. The state is clear in its method of using criminal law as the best possible deterrent against an agitating student community.

If Osmania University is one locus of protest for separate Telangana, courts have been another recurring location of protest. The active participation of lawyers in the demand for separate Telangana has been an unprecedented one. In the last two months, courts across Telangana including the High Court, were boycotted for several days. Large groups of lawyers were seen marching in the High Court corridors demanding that work be stopped. On one occasion there was also a scuffle between lawyers of Telangana and Andhra loyalties. There are now pandals set-up in all court compounds wherein one finds at least a dozen lawyers sitting in dharna, at any given point.

On 20th January when the students were taking out a funeral procession they were lathi-charged by the police, arrested and physically taken away. In this melee, suddenly, there were about three hundred pro-Telangana lawyers who forced their way into the campus, removed the barricades and began to drive away the police. They all arrived in their black coats and it was such a sight to see throngs of lawyers on the main street of Osmania University. Many have commented that one has not witnessed such a solidarity among the lawyer community in recent years. Earlier, on 7th December also, lawyers intervened in the police lathicharge and saved the students from being seriously injured. On the midnight on 14th February, when students were severely lathicharged, lawyers were to be found at the campus police stations and also mobilizing the State Human Rights Commission to intervene.

The bogus registration of cases, trumped up charges, false witnesses, custodial violence is a terrain familiar to the policeman and the lawyer. The policeman fears the lawyer as the latter is the one who intimately knows his tactics. The deed of interrogating the policeman of his violent and abominable practices is usually enacted in the criminal court rooms in the framework of the penal, procedure and evidence codes. The structure of the law rarely allows the lawyer, to fix formally, the arbitrariness of the police. When the lawyers, drawn mostly from the Nampally criminal courts and the Rangareddy courts, physically drove away the police, it was as if one was liberated, at least momentarily, from the claustrophobic confines of ‘case and procedure’. It was with satisfaction when they came out of the campus and said "we drove them out".

In securing bail in the thousands of cases that have been registered, lawyers of the trial courts are performing the crucial task of filing and arranging bails for the students. This work has involved meeting students in the jails and assuring them that bail petitions will be filed, collecting copies of the FIR and the case diary from the police stations, and arguing with judges that lighter sureties should be ordered while ordering bails. Many of these lawyers are young and junior in the profession, working in trial courts, not so proficient in English, but well-versed in the language and methods of the police. In the High Court petitions have been filed, demanding permissions to hold demonstrations, directions to university authorities for hostels to function, and more importantly that police forces should be removed from the University campus. Currently, the state has moved the Supreme Court about the necessity of deployment of police forces in the campus, aggrieved by the Division Bench judgment which ruled that the campus should be freed of the police.

The buzz in the court corridors has changed. The conversations are not just about judges and individual cases but about development, region, injustice, caste, representations in the media, arbitrary powers of the police and so on. The movement for a separate Telangana, apart from other things, has allowed for a fresh interrogation of the politics of our institutions. Today, lawyers from all districts of Telangana, will be boarding trains to reach Delhi to demand the separate state of Telangana. Posters have come up in all the courts in Hyderabad publicising this event. It is estimated that more than 2,500 lawyers are all set to participate in the Chalo Delhi programme.

Thursday, February 18, 2010

Supreme Court's loss - How it can be remedied?

I draw readers' attention to Salil Tripathi's interesting piece on Justice A.P.Shah's non-elevation to the Supreme Court in Livemint. I especially liked his view that Justice Shah contributed to nyaya rather than niti.

I am sure our political class wants such a Judge in the Supreme Court. But is the President helpless in the context of Proviso to Article 124 which mandates that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted? Here are my tips on how the President can get around this problem, if she is really keen that Justice Shah must be appointed as a Supreme Court Judge.

1. There is a grey area in both the Second and Third Judges Cases as far as how the President must consult the CJI. If you read Article 124 and the judgments in these two cases carefully, you would notice that the Supreme Court did not set aside Article 124 (2)which says that the President shall consult with such of the Judges of the Supreme Court and of the High Courts in the States as she may deem necessary for the purpose. It is surprising that the President never exercised this responsibility at all since 1993 when the Second Judges Case was decided. Even prior to 1993, the President (that is, in aid and advice of the Council of Ministers) appears to have consulted only the CJI, and not other Judges.

No doubt, the judgments in the Second and Third Judges Cases explain how the consultation with the CJI must be held, that is, through the Collegium, and that consultation must be effective (not concurrence) But it could not have been the intention of the Supreme Court that the Proviso to Article 124 would leave the Article itself redundant. Therefore, having consulted the CJI through the Collegium, to satisfy the Proviso, the President could still appoint Justice Shah on the basis of her consultation with other Judges of the Supreme Court or the High Court, who might have favoured his appointment.

In the Third Judges Case, the Supreme Court confuses Article 124(2) with how the CJI ought to form his view in consultation with other senior Judges. Article 124(2) refers to President's privilege to consult any Judge whom she deems fit. This privilege cannot be compromised with that of the duty of the CJI to consult his colleagues to form his view.

2. The above interpretation is valid because the judgment in the Third Judges Case throws light on when a Collegium's recommendation may not be binding on the President, that is, in the area of non-appointment of a Judge for cogent reasons.
As the media reports reveal, Justice Shah's name was not favoured by only one member of the Collegium. All the remaining members including the CJI favoured him. Therefore, even if the President appoints Justice Shah, it will be in conformity with the view of the CJI, thus satisfying the requirement of the judgment in Third Judges Case.

There is nothing in the Third Judges Case judgment which says that the CJI can recommend an appointee only if there is a consensus within the collegium. The Court saw consensus as an ideal, but clearly said a recommendation could be sent, if there is majority support including that of CJI within the Collegium. That is, it does not envisage a veto by any member of the Collegium except by the CJI, who has primacy. Therefore, if the Collegium had not sent the recommendation on Justice Shah because of the opposition of one member, then it is certainly not in conformity with the judgment in the Third Judges Case, and therefore, not binding on the President.

3.In fact, Collegium's views on every eligible Judge in terms of seniority must be sent to the President with a recommendation to appoint or not appoint. That is why the Third Judges Case judgment says if the CJI's view is opposed by other senior Judges of the Collegium, then the President is not bound to appoint. Here, the inference is that in that situation, the CJI would have been in minority within the Collegium. But Justice Shah's case is different. The CJI and all members of the Collegium except one favoured him. Since the dissenter was in a minority in the Collegium, there was every reason for the President to appoint Justice Shah.

4. It appears that the President requested the Collegium to reconsider its non-recommendation of Justice Shah, and still the recommendation to appoint Justice Shah was not forthcoming. Here, the question of Collegium reiterating its non-recommendation in order to make it binding on the President does not arise. Reiteration is binding on the Government only in the context of recommendation to appoint, not recommendation to not appoint or failure to recommend an eligible appointee. Here is the December 2008 CNN-IBN report on the Collegium's refusal to reconsider its non-recommendation of Justice Shah.

5.The Third Judges judgment only says the Collegium need not give strong and cogent reasons for not recommending a person. But the Government can certainly ask for the Collegium's views if it considered and discussed a possible appointee. The Government, then can well decide on the basis of the minutes of the meeting- in the absence of a recommendation from the Collegium - whether the non-recommendation was in conformity with the Third Judges judgment, and whether a Judge other than the CJI illegally vetoed a possible recommendation to appoint.

6. The system of appointing Judges on the basis of recommendations from the Collegium, no doubt, was laid down in the Second and Third Judges judgments. But these judgments do not abrogate Article 124(2) and the President's privilege to consult the CJI and other Judges independently of the Collegium's recommendation, to consider appointments of eligible persons, whom the Collegium may have overlooked.

Wednesday, February 17, 2010

Muralidhar Rao v State of AP: the debate on Strict Scrutiny continues

The debate on strict scrutiny is heating up, and Thakur is certainly not the final word on it. This blog has looked at the issue on previous occasions. After Thakur's refusal to apply strict scrutiny to reservations for OBCs in higher educational institutions, the Delhi High Court in Naz Foundation held that on a harmonious interpretation of Thakur and Anuj Garg, strict scrutiny shall be applied to all violations of Article 15, except in affirmative action cases. Then the Supreme Court in Subhash Chandra sought to read Thakur even more narrowly. The latest in this series of cases is the judgment of the Andhra High Court in Muralidhar Rao v. State of AP, which struck down the inclusion of Muslims into the OBC category. The case has been commented upon here and here.

There are several interesting aspects of the case, one of them being that the majority uses Subhash Chandra to read Thakur very narrowly. The majority judges test the law in question on a strict scrutiny standard and find it unconstitutional. This case is also fascinating because, unlike Anuj Garg or Naz Foundation, but like Thakur, the result of the case (arguably) depended upon whether the appropriate standard of review was strict scrutiny or mere reasonableness review [although the concurring opinion of Justice Meena Kumari found the law to be unconstitutional despite her refusal to apply strict scrutiny in light of Thakur. The dissenting judges also hold that Thakur disallows application of strict scrutiny to affirmative action cases.] Here are a few extracts from the majority opinion:

76. In the afore-stated circumstances, so as to simplify the concept with regard to judicial scrutiny, we can only say that the scrutiny should depend upon the subject matter of legislation and its impact upon legal or fundamental rights of one class of the society. When, so as to achieve the goal enshrined in the Constitution of helping disadvantaged class, a law is enacted so as to give more rights to such a disadvantaged class at the cost of another class of persons, in our opinion, what is required to be examined by this Court is: whether the purpose for which such an Act was enacted was, in fact, served and whether the conclusions on the basis of which the Act was enacted were correctly arrived at. If the reason for which a particular class was considered a disadvantaged class was not rightly arrived at, the enactment made to favour such a class at the cost of the general community would not be just, proper or valid.

86. On a careful consideration of the above judgments[ including Thakur],it would emerge that when an affirmative action of the State providing reservations to backward classes was under challenge in the context of Article 14, the Hon'ble Supreme Court had gone into the details of the basis for making the classification and gave its findings. However, it did not prescribe the level of scrutiny to be applied and providing reservation on such affirmative action was tested on the standards of ‘deeper scrutiny’, ‘in-depth scrutiny’ or ‘extreme care and caution’, and in some cases the doctrine of ‘strict scrutiny’ was applied. All the judgments touching upon reservations consistently applied exacting scrutiny or rigorous scrutiny. In Indra Sawhney I, the Hon’ble Supreme Court analysed the Mandal report minutely, which, in our view, exemplifies application of a rigorous and exacting standard of scrutiny.

88. Analyses of the judgments referred to above [including Subhash Chandra] illustrate that when affirmative action of the State is challenged as offending the equality injunctions of the Constitution, particularly in the matter of reservations to SCs, STs and BCs, though there is a presumption as to the constitutionality of the statute, the Courts have examined such statutes rigorously, with great care and caution. Therefore, the contention advanced on behalf of the State that the standard of scrutiny actually applied in Archana Reddy does not suit the Indian conditions or is inconsistent with the law laid down in Ashoka Kumar Thakur, has to be rejected.

Tuesday, February 16, 2010

Google Book Search and the Need for Creative Copyright Solutions

Recently, the Indian Reprographic Rights Organisation (IRRO), a book publishers association, registered its strong protest against the ongoing Google Book Search (GBS) settlement terms in the US. What particularly irked IRRO is the fact that Google attempts to be turning copyright law on its head, by asking that copyright owners expressly "opt out" of Googles' mammoth digital library.

Given the onward expansionist march of an antiquated copyright law, I'm very partial to the idea of copyright law spinning on its head in this digital day and age.

The IRRO is also expected to sue Google before Indian courts. And when it does so, it is likely to win, as the Indian "fair use" provision is worryingly narrower than the US version.

I highlight this controversy in a recent editorial in the Indian Express (IE). In particular, I stress the importance of crafting creative solutions to foster Google's far sighted project and the promise of a knowledge revolution, albeit with appropriate controls to check any potential abuses by Google. Below is the text of the IE editorial:

"The creation of gigantic knowledge repositories has proved challenging since time immemorial. The fabled library of Alexandria sought to capture the entirety of documented human knowledge, but was unfortunately set ablaze in the first century BC. Closer home, Nalanda’s ancient library met the same fate with “smoke from the burning manuscripts hanging for days like a dark pall over the low hills.”

The latest entrant in this game is quite different, a private corporation, and one that does not fear physical fires. For Google’s information is stored in a medium that fires cannot singe. However, what the search company has come to fear are metaphysical fires stoked by copyright laws.

The Google Book Search (GBS) project seeks to digitise all books that are currently available in the world. Unfortunately, in 2005, Google was sued by a bunch of angry publishers. A settlement is being brokered by a US court — albeit a highly controversial one, owing to a rule that authors have to expressly “opt” out, if they do not wish their books to be part of Google’s mammoth online library.

Since such a settlement is also likely to bind Indian authors qua their copyrights in the US, UK, Canada and Australia, the Indian Reprographic Rights Organisation (IRRO), which represents Indian publishers, recently filed their objections to the settlement terms.

IRRO is also expected to sue Google in India, and if it does so, it is likely to win.

It must be stated at the outset that Google faces no liability for books whose copyrights have expired. However, for copyrighted books, Google is forced to contend with legal issues over three distinct kinds of works: copyright works that are in print, those that are out of print, and those whose authors cannot be identified (popularly referred to as orphan works). Thus far, Google has been scanning such books, converting them to text and indexing them so that contextual information from the book is displayed in response to search queries.

Were one to look for an equivalent in the physical world, one might think of a giant library or bookstore where one could not only browse books but also ask the librarian or store manager a specific query and be referred to the book in reply. In the physical world, the activity would easily qualify as non-infringing, particularly so in India, where libraries do not need to pay any fees to copyright owners, once they have legitimately purchased copies of the books.

However, in the online world, all of this changes owing to the simple act of “reproduction” that occurs whilst scanning the book. Copyright laws prohibit the reproduction of any work without the consent of the copyright owner, barring limited circumstances. One such circumstance is what is commonly referred to as “fair use”.

Under this doctrine, Google could claim that since it provides mere “query”-related snippets from the book and not its entire content, its activities are unlikely to harm the sales of the books. If at all anything, it will lead to increased sales.

Paradoxically enough, India, which often nears the top of the US’ notorious “special 301” list for failing to maintain robust intellectual property protection norms, encapsulates a stricter version of the fair use doctrine and promotes greater rent extraction by copyright owners. The Indian section requires that apart from being “fair”, the activity has to be performed by the user only for his/her private or personal use, including research. It would seem that Google cannot make any personal claims to the noble endeavour of “research”; it merely facilitates this activity by users.

The reason Google is pursuing a settlement despite having a fair shot at the “fair use” exception in the US is that it desires much more access to the copyrighted works than currently permissible under law. In particular, it wishes to provide libraries with full-text access to all of its digitised books — on commercial terms, with the authors sharing in the proceeds received.

As with any other project, the GBS has its fair share of aye-sayers and nay-sayers. Many are concerned, and rightly so, about the concentration of all this knowledge and power in one private corporation. Others hail this as nothing short of a knowledge revolution. Indeed, with all of the worlds’ wisdom a mere mouse-click away, dusty libraries and sweaty afternoons would soon become a thing of the past.

Other benefits include the fact that authors are more easily located and are likely to benefit from greater sales of their books. Perhaps the greatest beneficiaries are the visually impaired, who will gain access to many more digital (audio-enabled) titles, enabling them to participate more effectively in our knowledge economy.

Therefore, courts must find creative ways to ensure that copyright flames sparked by Google’s revolutionary project do not singe, but are stoked in a balanced manner."

Monday, February 15, 2010

Seminar on Delays in the Legal System

The Seminar on Delays in the Indian Legal System: Legal, Judicial and Institutional Reforms is being held on Friday 19 February 2010 at Jindal Global Law School in Sonipat, Haryana. The programme is as follows:

10:30 am - 10:40 am: Welcoming Remarks
Professor C. Raj Kumar, Vice Chancellor, O.P. Jindal Global University (JGU) & Dean, Jindal Global Law School (JGLS)
10:40 am - 10:50 am: Chancellor’s Remarks, Mr. Naveen Jindal, Chancellor, JGU
10:50 am - 11:05 am: Presidential Address, Mr. Justice A.P. Mishra, Former Judge, Supreme Court of India & Chairman, Legal Education Committee, Bar Council of India
11:05 am - 11:20 am: Inaugural Address, His Excellency Mr. H.R. Bharadwaj, Governor of Karnataka
11:20 am - 11:50 am: Overview and Objectives of the Research Project
Professor Marc S. Galanter, Professor of Law Emeritus, University of Wisconsin Law School
Professor Jayanth K. Krishnan, Professor of Law, Indiana University, Maurer School of Law
11:50 am - 12:05 pm: Proposal on Small Claims Courts in India
Professor Peter H. Schuck, Simeon Baldwin, Professor of Law, Yale Law School and Distinguished Visiting Professor, JGLS
12:05 pm - 12:20 pm: Proposed Outcomes of the Report
Professor Vik Kanwar, Assistant Professor and Assistant Director, Centre on Public Law and
Jurisprudence, JGLS
12:20 pm - 12:35 pm: Key Note Address
Professor N.R. Madhava Menon, Member, Centre State Relations Commission
12:35 pm - 12:45 pm: Vote of Thanks
Professor D.K. Srivastava, Pro Vice Chancellor (Academic), JGU & Vice Dean, JGLS

Lunch: 12:45 pm - 1:45 pm

Chair: Professor Marc S. Galanter, Professor of Law Emeritus, University of Wisconsin Law
School, USA
1. 1:45 pm - 2:00 pm: Professor Bibek Debroy, Research Professor, Centre for Policy Research
2. 2:00 pm - 2:15 pm: Dr. A. Francis Julian, Senior Advocate, Supreme Court of India and Chief Legal Advisor, JGU
3. 2:15 pm - 2:30 pm: Mr. Siddharth Raja, Partner, Narasappa, Doraswamy & Raja, Bangalore
4. 2:30 pm - 2:45 pm: Mr. Ritin Rai, Advocate, Supreme Court of India
Discussion: 2:45 pm - 3:15 pm

Chair: Professor Jayanth K. Krishnan, Professor of Law, Indiana University, Maurer School of
Law, USA
1. 3:30 pm - 3:45 pm: Professor Ghanshyam Singh, Professor and Registrar, National Law University, Delhi
2. 3:45 pm - 4:00 pm: Professor Pritam Baruah, Assistant Professor, National University of Juridical Sciences, Kolkata
3. 4:00 pm - 4:15 pm: Mr. Arnab Kumar Hazra, Economist and Consultant, Administration of Justice Project, Asian Development Bank
4. 4:15 pm - 4:30 pm: Ms. Menaka Guruswamy, Advocate, Supreme Court of India
5. 4:30 pm - 4:45 pm: Mr. Aditya Singh, Student, NALSAR University of Law, Hyderabad & Visiting Research Scholar, University of Michigan Law School
Discussion: 4:45 pm - 5:15 pm

5:30 pm - 5:35 pm: Concluding Remarks
Professor C. Raj Kumar, Vice Chancellor, JGU & Dean, JGLS
5:35 pm - 5:50 pm: Summary of Proceedings
Professor Vik Kanwar, Assistant Professor and Assistant Director, Centre on Public Law and
Jurisprudence, JGLS
5:50 pm - 6:05 pm: Reflections on the Seminar
Professor Marc S. Galanter, Professor of Law Emeritus, University of Wisconsin Law School, USA
Professor Jayanth K. Krishnan, Professor of Law, Indiana University, Maurer School of Law, USA
Professor Peter H. Schuck, Simeon Baldwin, Professor of Law, Yale Law School and Distinguished Visiting Professor, JGLS
6:05 pm - 6:25 pm: Valedictory Address
Mr. Justice Dalveer Bhandari, Judge, Supreme Court of India
6:25 pm - 6:30 pm: Vote of Thanks
Professor (Dr.) Sanjeev P. Sahni, Member, Governing Body, JGU

Friday, February 12, 2010

Justice Shah's legacy and non-elevation

Justice Shah, Chief Justice of the Delhi High Court, retired yesterday. His liberalism, sensitivity and legal acumen are there for anyone to see in a string of landmark cases. Naz Foundation, judges assets case and the rickshaw-pullers case are only the most recent of cases where he wrote or joined in the Court's judgment. A list of his other important judgments is available at this link. The list includes his order in B. G. Deshmukh v. State of Maharashtra, where a political party was required to pay damages for encroaching on rights of citizens during bandhs (the judgment, whose principle was affirmed by the Supreme Court in a later case, continues to be relevant in the current context where Shiv Sena has used violence and threats of violence for political purposes). He also quashed orders censoring Anand Patwardhan's controversial films. Other important cases relate to disability, women's rights, PILs etc.

As our readers have noted in the comments section of a previous post, for reasons we can only speculate upon Justice Shah was not elevated to the Supreme Court---a request from the Central Government to the collegium to consider doing so notwithstanding. Fali Nariman said of Justice Shah that "I have always been of the firm opinion that he is a role model for all judges and if he could not make it to the Supreme Court, allow me to say that the collegium system has not worked". It is the Supreme Court (and the people of India) that stand to lose.

Although the collegium is unlikely to review its decision, it is important to note that Justice Shah will continue to be qualified for appointment as a judge in the Supreme Court for the next three years. The qualifications mentioned in Article 124(3)(a) of Constitution do not require a person to be a 'sitting' judge of a High Court, only that they have been a High Court judge for at least five years. If the much-criticised collegium system of appointments is replaced by a new authority any time soon, as has been promised by the government, Justice Shah should be considered as one of the best-qualified candidates for appointment to the Supreme Court. But more than the fate of the individuals involved, it is the institutional question that needs urgent attention: the case highlights the problems that plague the opaque and allegedly nepotistic system of judicial appointments.

: Readers may be interested in reading Karuna Nundy's tribute to Justice Shah, which notes some other important judgments delivered by him which were not mentioned above.

Accountability of intelligence agencies

Following Vice President Hamid Ansari's call to bring intelligence agencies under legislative oversight, Foundation for Media Professionals ( is organising a panel discussion on this sensitive subject in collaboration with Nehru Memorial Museum and Library.

Topic: Can IB and RAW be accountable? A case for media scrutiny and legislative oversight

Venue: Auditorium, Nehru Memorial Museum and Library, Teen Murti House, New Delhi

Speakers: Manish Tewari, Asaduddin Owaisi, Ajit Doval, Rana Banerji, Maj Gen V K Singh, Menaka Guruswamy, Praveen Swami and Josy Joseph with Saikat Dutta as moderator

Date and time: February 18 from 5.30 pm to 8 pm

High tea at 5 pm before the debate.


Thursday, February 11, 2010

Shahid Azmi Killed

News sources report that Shahid Azmi, the lawyer representing 26/11 accused Fahim Ansari, has been killed after assailants broke into his office and shot him twice at point-blank range. The assailants are still unidentified and we should not rush to conclusions about who they were or the intention behind this killing. However, it is not unlikely that the motivation was related to his defense of Fahim Ansari and his previous defense of other high profile accused terrorists. 26/11 accused Ajmal Kasab's initial lawyer Anjali Waghmare was threatened before she eventually was removed from the case. KP Pawar, Kasab's current lawyer, has been provided heavy security out of fears over the lawyer's safety. We will have to wait to find out if Shahid Azmi was provided with any similar security, and if so, what failure took place.

Concerns over lawyer safety are not just limited to the 26/11 trials though. In Uttar Pradesh, in 2008, Mohammed Shoaib, a lawyer who had taken up the case of a terror accused was beaten by his fellow lawyers. Similar attacks or threatened attacks on lawyers have been reported in terror cases across the country, along with lawyers involved in defending accused naxalites or those involved in communal violence. Emotions obviously run high in these cases, and entire communities are invested in their outcome . However, no matter what we think of the accused, they must have a right to a defense, and lawyers must be free to defend them without any fear to their personal safety. Anything less is a blow to the democratic institutions that so many have fought so hard to create and protect.

Lawyers have a bond - a bond that unites prosecutors and defense attorneys, that brings together small town lawyers with the biggest name Supreme Court advocates. It's a bond that invests us in solidarity with the plight of lawyers who go in to the streets in Pakistan or advocates who find themselves behind bars in China - it stretches across oceans. We lawyers are all united by a dedication to solve our societies' problems not by the barrel of the gun or the twisted logic of revenge, but by the rule of law. We will have to wait to see how events unfold in the days ahead. Still, tonight, it seems not just a man was killed, but also a lawyer.

Wednesday, February 10, 2010

Manushi Sangathan v Govt. of Delhi

The Delhi High Court delivered a landmark judgment in the case of Manushi Sangathan v. Govt. of Delhi earlier today. In this case, the constitutionality of some aspects of Delhi's transport policy and its implementation was challenged. The following aspects were particularly at issue:
(i) The policy fixed the total number of cycle rickshaws that could ply on the streets of Delhi at 99,000;
(ii) It required that the plier of a cycle rickshaw must be its owner;
(iii) Cycle rickshaws which were plied without license were routinely confiscated and destroyed;
(iv) The policy imposed zoning restrictions where any particular rickshaw was licensed to ply only in certain zones;
(v) It did not provide any parking space for rickshaws; and
(vi) It did not provide for separate cycle lanes.

The judgment was written by Justice Ravindra Bhat, in which Chief Justice Shah and Justice Muralidhar joined. The Court held (i) and (ii) to be unconstitutional, (iii) to be unconstitutional and ultra vires the parent statute, upheld (iv) with a recommendation to MCD to reconsider zoning, directed that positive measures be taken to provide parking for cycle rickshaws, and issued a continuing mandamus to oversee the formulation of a fair road use policy. Some extracts follow:

On Article 14 (arbitrariness):
39. ... In the present case, the rationale for the limit fixed by the impugned notification, i.e. 99,000 licenses, is not disclosed. There is no objective material to remotely justify imposition of such cap. On the other hand, there is ample material by way of relevant factors, disclosing that the authorities have been periodically reviewing the need for upward revision of such limits – in the past 50 years or so, at least on 4 occasions upward revision of such limit, has taken place. In the circumstances, it is held that the limit of 99,000 placed on the number of licenses which can be issued by the MCD is held to be arbitrary and hereby set aside.

42. ... The MCD states that the [owner-plier] policy endeavours to minimize the exploitation of the rickshaw pullers by owners ... the MCD has not placed on record any material or document evidencing consultation with such cycle rickshaw associations. There is no instance of exploitation of the rickshaw pullers cited by it on the basis of objective study or analyses based on any survey conducted etc.

47. ... There is no empirical study made by any local agency on the impact of the existing policies under the bye-laws, either in regard to the cap of licenses or in regard to the inherent restrictions on the number of licenses flowing from the owner-puller policy.

On Article 14 (discrimination):
49. ... there was really no answer to the petitioners‟ submission that rickshaw pliers are hostilely discriminated by the owner-plier policy, which condemns them to an impoverished existence. Neither the State agencies – including the police nor the intervenors were able to justify why the right of a plier to hire a rickshaw on rent for eking out his livelihood requires complete prohibition – barring the excepted category under the proviso to Bye-law 3(1).

66. ... The figures of registered motor vehicles are in excess of 60 lakhs, as per the Govt. of NCT website; of these, as many as 38,55,055 are private cars (four wheelers) and only 45,817 buses ply on the city's roads. As far as private commercial vehicles, catering to the commuter public are concerned, there are 76,090 TSRs (auto rickshaws) and 30,809 taxis (local, tourist, radio) on the road. Thus, there is a felt need for non-motorized road transportation, which the cycle rickshaws offer.

67. The respondents were unable to point out whether there is any restriction on the movement of such motorized private –especially private commercial vehicles, on arterial roads. The restrictions through the notifications issued by the Delhi Police, all pertain specifically to slow moving traffic. ... The figures of number of vehicles and their impact on pollution levels in Delhi, as well as the dictates of the Delhi Master Plan are such that all agencies have to explore the optimum methods of minimizing environmental damage, and ensuring that best practices that protect the ecology are adopted. ... Even if the cycle rickshaws are acknowledged to cater to short distance travel, the fact remains that the zoning regime presently in position, prohibits plying of cycle rickshaws of one zone in another. This can lead to practical problems ... Such restrictions can affect poor commuters and travelers the hardest, particularly if they have to commute from inter state bus termini, railway stations, etc., with heavy luggage. ... However, this Court would not hold that such zoning restrictions, or ban on the use of arterial roads, by cycle rickshaws, invalid, because the number of such vehicles that would become available as a result of removal of the cap, and their use by classes of pliers, other than owners, is unknown. Also, there is lack of empirical data about road usage and scientific basis for concluding one way or the other that placing such restrictions do not impede smooth movement of traffic, particularly on main and arterial roads. This Court therefore, does not hold that such restrictions are void or discriminatory, but would require the authorities to study all the relevant factors, and take such remedial measures as are necessary in the light of the previous discussion.

69. ... If clear spaces are not earmarked for rickshaw parking, the pliers would be forced to park them at the place most convenient to him; usually on some stretch of the main road. This can lead to unhappy and undesirable situations, where the rickshaw plier's livelihood is threatened on a daily basis, as the possibility of rickshaws being damaged, or taken away looms large. Besides, such a position would always expose the rickshaw plier to threat from the police and municipal authorities, who can object to the practice, saying that public roads or public property cannot be utilized for parking cycle rickshaws. ... It cannot also be lost sight of that there is no requirement that other class of vehicle owners must possess any such parking space. Bus, trucks and car owners are not subjected to any such condition. Imposing such restrictions on rickshaw pliers and owners is therefore, discriminatory....the MCD should endeavor, as part of their obligation, to
provide safe park and ride lots.

On Article 19(1)(g):

50. It has been recognized that the State power extends to complete prohibition of a commercial activity in the legitimate exercise of imposing reasonable restrictions under Article 19(6). The law declared by the Supreme Court in these last fifty years speaks uniformly in that- it is the rights, which are fundamental and not the restrictions and that any legislative or executive measure that has the effect of totally prohibiting an individual from exercising his freedom to trade and carry-on any profession under Article 19(1)(g) should be imposed in rare and exceptional circumstances...

51. ... a greater latitude is permitted to the State in regulating what are considered inherently dangerous activities or those which might pose a threat to the general public, as, for instance, liquor trade, trade and commerce in fire arms and explosives; drug trade and activity that could be harmful or injurious to the environment generally, such as commerce in animal skins and products, ivory etc. However, outside of such exceptional categories, a total prohibition of the right to carry-on business, is generally regarded as an unreasonable restriction

On Article 300A (the Right to Property):

60. The right to property, although no longer a fundamental right, is still a human right and a constitutional right guaranteed under article 300A of the Constitution of India, which provides that “no person shall be deprived of his property save by authority of law.”

62. In the present case, there are specific provisions in the Act, authorizing the MCD to exercise confiscation and seizure powers ... Section 158 (8) even prescribes that in the event of disposal of such property, seized or distrained, for recovery of specified municipal dues, if some surplus remains, the property owner is entitled to such amount. ... There is no such power to seize, confiscate and destroy cycle rickshaws. Therefore, the bye-laws, and impugned resolutions, to the extent they authorize the exercise of such power are arbitrary as well as ultra vires (the parent Act).

63. ... With this Court declaring clauses 4(k) and (l) of the policy and bye-laws 17(b), and 17A to be unconstitutional, there is no power in the MCD, much less the Delhi Police, to seize and either sell in auction or destroy a rickshaw even where it is found to be driven without a licence or by a person not having a proper licence. We are not unmindful of the manner in which these wide powers were being exercised with cycle rickshaws being easy targets for unleashing the lathi of a traffic policeman. It is hoped that the Delhi Police will, consistent with this judgment, instruct its personnel to treat rickshaw pullers with sensitivity.

On Transport policy:
71. ... Road space cannot be appropriated or monopolized by one mode of transport, particularly when the bulk of the population depends on public transport. The various figures discussed in the earlier portion of the judgment would reveal that there is a crying and urgent need to increase and augment public transport – be it increase in the number of buses, the Delhi Metro or any other mode. Also, the respondents have to consider all options, including imposing stringent restrictions on the use and movement of private cars, in certain congested areas of the City, and also limit their use.

72. ... road management cannot mean prioritization of access to only one class of vehicles, particularly when there is a significant body of evidence that such class contributes to clogging of roads. Though public transport users apparently contribute the bulk of the city's commuters (i.e. buses travel 210 kms. each day, on an average, in Delhi- which, if it means three round trips, translates on an average to use of about 22,000 (out of 45,000 odd registered buses) by 600 persons, which in turn works out to one crore commuter trips. However, the 32 lakh odd cars – even if the usage is 60% each day, by two persons, would result in fewer trips. The propensity of those cars however, is to appropriate a lion‟s share of the road space available in Delhi.

On Separation of Powers and appropriate role of Courts:
73. We are of the opinion, in view of the above discussion, that even while not disturbing the zoning restrictions and the ban (on cycle rickshaws in arterial roads) this is a fit case where the authorities should explore all options to reduce road congestion, and consider all proposals, from an overall, or holistic perspective. These proceedings are in the nature of public litigation. The Supreme Court has stressed the need for courts to adopt new approaches and innovate, while dealing with such public issues, when moulding the relief, in a given case. One such relief is “continuing mandamus” – an innovation first commented upon in Vineet Narain v. Union of India, 1998 (1) SCC 226. While adopting such a course, the courts issue declaratory judgments and at the same time, having regard to the subject matter, give operative directions, which also ensure oversight that guides implementation of its orders. In the circumstances of this case, we are of the opinion that these cases are instances where such continuing mandamus has to be issued.

On dignity of work:
35. ...this Court concludes that the assumption in Hemraj that the cycle rickshaw plying by individuals or citizens offends human dignity and perhaps requires to be eliminated or drastically controlled, is contrary to the freedom guaranteed under Article 19(1)(g).

On the importance of context:
54. One established principle of Constitutional law is that a legislation or regulation if once held valid, can be successfully challenged if there is a significant change in circumstances.

Judgment Alert

The Delhi High Court will pronounce the judgment in Manushi Sangathan, Delhi v. Government of Delhi & Ors today. (challenging the ban on cycle rikshaws) The case was heard by the CJ, Justices S.Muralidhar and S.Ravindra Bhat. [W.P.(c)4572/2007 & 8580/2009)

Tuesday, February 09, 2010

Andhra Pradesh High Court's judgment striking down quota for Muslims

The A.P.High Court's judgment, delivered on February 8, can be read here.

From the latest Frontline....

The latest Frontline issue celebrates 60 years of the Indian Republic. Among the contributors to the cover story are Granville Austin, Aijaz Ahmad, A.G.Noorani, Prabhat Patnaik,and K.N.Panikkar.

Readers may find the following other articles too of considerable interest:

*My commentary on Supreme Court's introspective observations on how the Court has failed the labour in the era of globalisation in the case of Harjinder Singh v. Punjab State Warehousing Corporation.

*On why the deemed universities case in the Supreme Court gets curiouser and curiouser.

*I look back on the 60 years of the Election Commission, to find that the early CECs understood the significance of elections much better than those who headed the EC in recent years.

Mulla v UP - Death Penalty debate continues

In its recent judgment in Mulla v State of UP, the Supreme Court has continued with the trend of emphasising the extremely limited scope of the rarest of rare doctrine first formulated in Bachan Singh.

This blog has noted Justice Sinha's contribution to the death penalty debate, where he repeatedly emphasised the fundamental precondition in Bachan Singh---that rarest of rare case will be one where 'the alternative option [of life imprisonment] is unquestionably foreclosed.' We have also previously looked at his landmark judgment in Santosh Bariyar in some detail. Justice Sathasivam's judgment in Mulla seems to be informed by a similar spirit. A few extracts from the judgment follow:

38. The following propositions emerge from Bachan Singh case
(i) of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

43. This Court in Bachhan Singh's case (supra) has held that:
"A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

44. Therefore, it is open for the court to grant a death penalty in an extremely narrow set of cases, which is signified by the phrase `rarest of the rare'. This rarest of the rare test relates to "special reasons" under Section 354(3). Importantly, as the Court held, this route is open to the Court only when there is no other punishment which may be alternatively given. This results in the death penalty being an exception in sentencing, especially in the case where some other punishment can suffice. It was in this context that the Court had noted:

"The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal"

54. Another factor which unfortunately has been left out in much judicial decision-making in sentencing is the socio-economic factors leading to crime. We at no stage suggest that economic depravity justify moral depravity, but we certainly recognize that in the real world, such factors may lead a person to crime. The 48th report of the Law Commission also reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socio-economic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. This court on many previous occasions has held that this ability to reform amount to a mitigating factor in cases of death penalty.

Monday, February 08, 2010

Opportunities in the Legal Profession: Synopsis of a lecture

By Nina Nariman, III Year, LL.B., Campus Law Centre, Delhi University.

[Synopsis of the 2nd lecture in the series ‘60 years of the Indian Constitution’ delivered by Mr. T.R. Andhyarujina, Former Solicitor General of India, on February 6 at Campus Law Centre, Delhi University.]

Mr. T.R. Andhyarujina began with a quote by Justice Frankfurter of the United States Supreme Court: “No one can be a truly competent lawyer unless he’s a cultivated man”-suggesting that while the degree is an easy accomplishment, to be a competent lawyer one must be well read in a liberal education.

He went on to discuss the various avenues open to a freshly graduated student. He spoke of the merits of an LL.M. Degree, whether in India or abroad, as it leads to the broadening of the mind.

He spoke of the vast areas of employment open to a law graduate today: one can find employment in the corporate sector, litigation or in solicitors’ firms. In fact, he said that most great Statesmen were lawyers, and law can be used as a stepping stone for politics or the Indian Administrative Services. He however, advocated that a student serious about law must first get much needed experience in the lower courts. He spoke of the great need for grassroots’ lawyers in our country to deal with the travails of the common man. He also spoke of the need for good lawyers to take up judgeship – while there may be more money in litigation, a judge’s work is more satisfying.

While dealing specifically with the practice of law, he spoke of the basic ingredients needed for success: dedication, hard work and courage. He said that while some lawyers, like Nani Palkhivala had native genius, most are ordinary and they succeed through the dint of their persistence, as Justice Cardozo put it, their “plodding mediocrity”. Thus, while being genius need not be the basis for success in the legal profession, “plodding” or meticulous work is.

While discussing the Bar, he spoke of the need to emulate the good practices of foreign Bars; for instance, in England one is taught not to raise their voice unduly or be excessively aggressive. While speaking of the reputation of the legal profession, he said that people associate it with acquisitiveness and deception. However, we as students should not be deterred by this reputation. He went on to talk about the place of women in the legal profession and urged the ladies present not to think of the law as a male dominated profession. He said that Delhi was ahead of the other States in this regard with nine lady judges and a large number of female lawyers.

He concluded by saying that although the law is a jealous mistress, let it not devour you.

Sunday, February 07, 2010

Resolution adopted at CJAR 3rd Convention

[The following resolution was adopted at the Convention held in New Delhi today]

The present system of appointments by the Collegium of Judges suffers from nepotism, arbitrariness and lack of transparency. We need a full time Judicial Appointments Commission for selecting judges of the higher judiciary as well as members of Commissions, Tribunals, etc. This should not comprise merely of retired judges, but should include other eminent members of civil society. This Commission must first lay down the criteria for selection and the method for selection as per the criteria. In particular the understanding of and sensitivity towards the social conditions of the common people must be an important criteria for judging the suitability of judicial appointments. The selection process must be transparent and the credentials and qualifications of the prospective appointees must be in the public domain.

The difference in the retirement age of High Court and Supreme Court judges has made many High Court judges subservient to the Collegium who decide their elevation. This has led to lobbying among High Court judges and Chief Justices as well. The Campaign believes that there is no justification for a different retirement age for High Court and Supreme Court Judges.

The fact that there is considerable corruption in the higher judiciary is evident from the string of recent scandals such as the Ghaziabad Provident Fund scam, the Chandigarh cash at judges door scam, the Justice Soumitra Sen and Justice Dinakaran cases, etc. The present system of impeachment has proved to be totally impracticable and ineffective for disciplining judges. There should be a similar commission for dealing with complaints against judges. This must have its own independent investigative machinery and should be empowered to examine the complaints and recommend the action against the errant judges, which would include removal and registration of criminal cases against them. The commission may appoint a tribunal of three jurists to adjudicate on the misconduct of judges before its final decision. These complaints must also be dealt with transparently. A code of conduct for judges must be framed with full public consultation and made strictly enforceable.

The Campaign notes that misconduct of the bar has also grown enormously in recent times. The Bar Council of India has completely failed in disciplining misconducting lawyers due to conflicts of interest and corruption within the Bar Council of India. The Bar too must be made accountable to a completely independent statutory body. This is important because the bar is also an important actor in the administration of justice. It is the principle feeder cadre for judges and is often complicit in judicial corruption.

We feel there is no justification for retaining “scandalising the court or lowering the authority of the court” in the definition of criminal contempt and this should be deleted. Respect for or public confidence in the judiciary depends upon how the actions of the judiciary are perceived and not on preventing people from making any kind (including harsh) criticism. The laws of civil and criminal defamation are adequate to protect judges from scurrilous abuse.

The Campaign notes with regret that though the judiciary had itself declared the Right to Information as a fundamental right and had applied it to various institutions including candidates contesting elections, it is now dragging its feet and resisting the application of the RTI Act to itself. This is being done by framing rules which deter citizens from asking for information and put unreasonable restrictions on the disclosure of administrative or financial information about the court. This is also being done by the interference of the Courts with judgements of the Cenral Information Commission ordering disclosure of information with the judiciary such as for appointments of judges and complaints against judges, etc. The judiciary is thus defeating the object of the Right to Information Act which is to make every institution including the judiciary accountable to the people.

The Campaign finds that the judiciary has of late rendered many decisions displaying gross insensitivity to human rights and civil liberties particularly of the weak and the poor. Draconian laws such as POTA, TADA, AFSPA has been upheld and progressive laws such as the IMDT Act have been struck down and other pro people laws such as Contract Labour Act, Industrial Disputes Act are not being implemented. The insensitivity towards human rights is also apparent from the fact that even where prosecutions of innocent persons were found to be malafide and based on fabricated evidence, no action was ordered against the offending police officers. This has led to impunity in the police and the spectre of innocent persons being framed in a large number of bogus cases. The Supreme Court has gone to the extent of saying that laws made by Parliament should be interpreted in accordance with the economic policies of the executive government. In certain instances, this has led to a peculiar situation where economic policies of the government are given the judicial stamp. This often strangulates political debate, as well as mobilisation of public opinion.

In particular, in the area of workmen jurisprudence and land acquisition disputes, the Campaign notes the attitude of the judiciary as being dismal. The current judicial system is getting far removed from the needs and rights of the poor and deprived section of society in substantial deviation from the directive principles of state policy as enshrined in the Constitution of India and even restricting the interpretation “right to life” as delineated in earlier pronouncements of the court. In fact the common people have virtually no access to the judicial system being unable to afford lawyers and also often because the language of the court is alien to the culture. The security obsession of the superior courts is also preventing access even to visitors thus destroying the very concept of open courts. With the current technology is would be easily possible to video record and indeed web telecast court proceedings which must be started immediately.

Courts have often been used to execute the desires of the incumbent government even against the law. Thus jhuggis along the Yamuna Pushta were demolished on the orders of the court to pave the way for the common wealth games village and the Akshardham Temple, in violation of formal government policy.

The Courts have acted whimsically and arbitrarily on environmental matters and have often invoked environment to demolish jhuggis, displace forest dwellers, etc. However the same considerations have not prevented them from allowing the use of the same spaces for corporate interests. There is a clear need for the courts to strengthen and rationalise the systems of environmental appraisal and clearance. Environmental approval committees should be given statutory status and appointed in a transparent manner to represent particularly the interests of the concerned masses rather than “technical corporate or bureaucratic interests”. The statutory appellate authority should also be transparently appointed through the judicial appointments commission.