tag:blogger.com,1999:blog-15602189.post1129527260980253675..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: Recent PIL cases decided by the Supreme CourtAnonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-15602189.post-32343321818629737452007-07-24T09:41:00.000+05:302007-07-24T09:41:00.000+05:30Thanks, ROTB, for the detailed comments on the Bis...Thanks, ROTB, for the detailed comments on the Bisht case, which will help me as I develop my own analysis of the case. <BR/><BR/>Those who support Justice Sinha's judgment would of course provide counter-arguments to those you've stated. They can, for instance, rely on precedents such as Kesavananda where the express words of the constitution or the clear intent of framers did not prevent judges from adopting a different view as the law of the land. Interestingly, Justice Sinha relies on 'purposive' modes of interpretation, and if his perception of that is as expansive as that of <A HREF="http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/barak0906.htm" REL="nofollow"> Aharon Barak </A>, then all kinds of activist interpretations would be justifiable. <BR/><BR/>I am intrigued by your reliance on Kozinski's quoted statement, and I'd like to focus on that by going outside the context of the Bisht case, and considering its merits independently. While the quotation you cite is appealing, Kozinski is seen as one of the judges in the vanguard of the conservative right movement in the U.S. As <A HREF="http://www.legalaffairs.org/issues/January-February-2004/feature_bazelon_janfeb04.msp " REL="nofollow"> this </A> profile shows, he is not above using his office for bringing about constitutional changes that he deems legitimate. <BR/><BR/>Kozinski makes a great virtue of consistency, and by his standard, a judge who consistently adopts narrow, literal meanings of provisions, regardless of whether they reach normatively sound results, would be a good judge (he says this explicitly in the quote you cite). To me, this is deeply problematic as well. Consistency is no doubt an important attribute in a good judge, but the ability to size up different situations and a willingness to adapt rulings to peculiar situations, is also necessary. By harping on consistency, Formalists like Kozinski miss out on the practical problems posed by everyday cases.<BR/><BR/>If judging is all about reaching consistent results, then its a simple matter of clerically applying prior precedents to new situations. Clearly, that is not a tenable view of the judicial process. While Kozinski and other Formalists are right to warn us of the dangers of judges imposing their personal ideologies upon cases, the solution they propose is not particularly satisfying either.Arun Thiruvengadamhttps://www.blogger.com/profile/15902119597448574508noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-10845415667146797412007-07-22T12:59:00.000+05:302007-07-22T12:59:00.000+05:30Reference : Indian Doctor in AustraliaOn The Hindu...Reference : Indian Doctor in Australia<BR/><BR/>On The Hindu's website:<BR/><BR/>"The transcript of the interrogation of Dr. Mohammed Haneef by the Australian Federal Police on July 3, 2007 in Brisbane was published by The Australian on its website. The 142-page document was later removed from the website. An editor of the newspaper told The New York Times that there had been "tremendous pressure" from the government.<BR/><BR/>The transcript as it was put out by The Australian is being published here to advance public understanding of the details of the case.<BR/>It is available both as a single PDF file (22.1 Mb) and as smaller PDF file segments for easier download."<BR/><BR/>The link is http://www.hindu.com/nic/0058/haneef.htmAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15602189.post-20643630731667830632007-07-22T10:22:00.000+05:302007-07-22T10:22:00.000+05:30Thanks for a very interesting post. As Dilip point...Thanks for a very interesting post. As Dilip points out there is nothing really novel about the arguments put forward by Katju J. and Sinha J. Both philosophies have been espoused before by the Supreme Court, albeit not in a single case.<BR/><BR/>That said, I have grave misgivings about Sinha J.'s judgment, though I have the greatest respect for his erudition. I feel that it doesn't really answer any of the criticisms levelled by Katju J. It seems to rest on the following premises-<BR/><BR/>1. It is alright to ignore constitutional and statutory provisions as long as the parties before the Court connive with the Court in doing so. A sovereign legislature cannot abdicate its powers in this manner, and the mere fact that counsels before the Court were amenable to its passing directions is no defence to the charge that the orders passed were illegal.<BR/><BR/>2. As the Consumer Protection Tribunals are judicial fora, the SC is entitled to interfere in their administration and conditions of service as the apex court. There is no constitutional provision to bear this out. This is also ignores Parliament's contrary intention as exhibited in the text of the CPA.<BR/><BR/>3. Bunging in enough foreign references (Dworkin, Bruce Ackerman et al.) is sufficient to gloss over the fact that the Court is rewriting the statute. <BR/><BR/>Sinha J. also refers to Union of India v. S.B. Vohra, an inapposite reference, since the very passage he extracts indicates that there Art. 229 entitled the HC to have a say in service conditions. <BR/><BR/>References to other SC decisions which suffer from the same defects as those pointed out by Katju J. are of no help. Constitutional courts are normally not bound by prior precedents precisely because, in their field of action, the perpetuation of errors can have dire consequences.<BR/><BR/>I am not indifferent to the argument that legislative indolence requires judicial activism. I just don't think that it justifies rewriting constitutional and statutory provisions without acknowledging this is what is being done. It is constitutional hypocrisy, which abandons the constitution to the personal predilections of judges. This trend and it's pitfalls were eloquently characterised by Alex Kozinski of the Ninth Circuit in Silveira v. Llockyer> The passage deserves to be set out in full-<BR/><BR/>"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States,389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional<BR/>guarantee, we can be equally ingenious in burying language that is incontrovertibly there.<BR/><BR/>It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."<BR/><BR/>Perhaps the present distribution of powers in the Constitution needs to be considered afresh in view of the degeneration of the legislative and executive organs. However, the judiciary should call for such a change openly rather than resorting to subterfuges and a creeping expropriation of legislative powers.<BR/><BR/>To end, I find Sinha J.'s criticism of Katju J. in para 43 unjustified. If the prior judgments, larger benches or not, were passed sub silentio, Katju J. was entitled to state his view. He should perhaps have considered having them placed beofre the CJ, in consequence of the view he was taking, that they may be reconsidered. As to Sinha J.'s judicial restraint jibe, perhaps he forgot that Katju J.'s brand of judicial restraint permits saying things like "people like you should be hanged from lamp posts" in open court.Rampal of the Baileyhttps://www.blogger.com/profile/02534949598798797105noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-89824597897530328792007-07-21T11:42:00.000+05:302007-07-21T11:42:00.000+05:30Thanks, Dilip, for your typically insightful analy...Thanks, Dilip, for your typically insightful analysis. I agree with you that the Bisht case is profoundly important, and presents a great opportunity to debate principles of judicial power and constitutional theory. As you note, the two judges present some of the most compelling arguments for their respective camps. I was intrigued by the extent of references on comparative legal literature and foreign cases in both judgments as well. I am in the process of studying the case closely for an academic paper,and will try and post about it later as well, where I will invite your further comments. <BR/><BR/>Moving on to your second point, I think you've identified the Achilles heel of much of existing constitutional theory: the inability of scholars and jurists to be able to provide truly 'neutral' principles of adjudication and interpretation. What you have pointed out for India is equally true of U.S. constitutional scholarship, and many people consider the project an impossible one. So much so that people who do try and evolve such 'objective' and 'neutral' principles are derided as either naive or intellectually deficient. Many people who try and do so fall into the trap of trying to justify cases that do not conform to their own theories, but whose results are more palatable to them, based on their personal worldviews. <BR/><BR/>Decisions like Roe v. Wade pose a problem for many liberals who believe in the right to abortion passionately, but are unwilling to concede the weaknesses in Justice Blackmun's opinion in Roe. This, despite the fact that the conservative decisions they bemoan about often have a stronger basis than Roe. Of late, liberal scholars in the U.s. like Jack Balkin and Sanford Levinson have started endorsing their versions of 'originalism' and acknowledge that paying close attention to standard interpretive strategies (of history, text, purpose that you identify) is important in order to encourage a tradition where these constraints are taken seriously. <BR/><BR/>Although I am not usually a fan of mimicking practices in other jurisdictions, I believe that liberal constitutionalists in India may also need to do likewise to avoid the problem that you have so sharply focused upon and identified.Arun Thiruvengadamhttps://www.blogger.com/profile/15902119597448574508noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-43172606890399831972007-07-21T08:28:00.000+05:302007-07-21T08:28:00.000+05:30Kudos for drawing attention to State of U.P. v. Je...Kudos for drawing attention to State of U.P. v. Jeet S. Bisht which I think is the perfect case for a discussion on judicial activism. The separate opinions seem to reflect the ideal prototype of arguments presented by the two sides in any debate on this question. No surprises in either of them: J. Katju’s opinion reflects the traditional notion of restraint and need for deference to the other branches while J. Sinha’s riposte included known elements of the case for activism – acceptance of the court’s advice by the government as shown by its willingness to incorporate elements of its ipse dixit orders in evolving policy/legislation, the repeated references to ‘modern’ trends where ‘flexibility’ is the norm and the court’s progressive role in creating new rights and fostering them sometimes through continued monitoring – all raising the same questions asked before – grounds of authority, accountability and the role of the judiciary vis-à-vis the other branches in our country. The additional question is whether it is too much to expect something even approximating equal justice under law under the current system of case allotment given the profound philosophical differences, so starkly on display here, amongst individual judges.<BR/> <BR/>The other point about judicial activism in general is that several leading lawyers and judges seem to be advocating different lines to be drawn in regulating PILs. The trouble appears to be that none can cite a good rationale as to why their scheme is any better than the others. Also, barring a few exceptions the entire focus of these debates as I gather from newspapers appears to be more on ‘how much’ rather than ‘whether’ with the strongest case against it being that intervention is inadvisable where the issue is too complex or for whatever other reason is not ‘judicially manageable’ with relatively little being said about the textual, traditional or historical basis of such a course. Most commentators’ views also appear to have been deeply influenced by the tumultuous events of the ‘70s and even those who view the activist trend with concern often temper their otherwise dispassionate constitutional critiques with citations of the exceptional circumstances that necessitated the ruling in Keshavananda Bharati and how that and those opinions and legal structures based upon it have done yeoman service to the cause of liberty in India – my point here is not about the merits of that judgment or the benefits flowing from it but about such exceptionalism in their essays which by contradicting the very principles they are trying to promote, robs their arguments of much of their moral force. In summary, I think a large part of the current debate is halting, unsure, based on the desirability of outcome of a given case thereby missing the forest for the trees and sometimes controversy-sensitive rather than based on robust, well-articulated principles that promote an alternative vision of an ideal system.Dilip Raohttps://www.blogger.com/profile/18294894305584371011noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-61708487845516633242007-07-20T15:11:00.000+05:302007-07-20T15:11:00.000+05:30Hi,Would someone care to comment on the Kafkaesque...Hi,<BR/><BR/>Would someone care to comment on the Kafkaesque treatment of the Indian doctor in Australia! It might seem a bit early to comment; but I doubt if anybody would be forced to eat their words for criticizing the Aussie government in using an apparently innocent man to stoke up hysteria and panic before an election.<BR/><BR/>Personally, I think Indian anti-terror laws are a bit more sophisticated and evolved than those in the US, UK or Australia. It’s been a steep learning curve from the days of TADA and besides we don’t really have the element of cultural barrier in dealing with these things. <BR/><BR/><BR/>RajAnonymousnoreply@blogger.com