Beards, Burqas and Bias: Contemptuous Statement?

Venkatesan's interesting post on the Salim case (dealing with the extent to which minority institutions can lay down rules that conflict with the religious beliefs of a student) drew some interesting comments. I want to offer a slightly different perspective (legal) and also to reflect on Justice Katju's unfortunate statement that equates all bearded Muslims with the Taliban!

Most newspapers report that Justice Katju, who, when confronted with Salim’s argument that the constitution guaranteed him the right to practice his faith by keeping his beard is said to have stated: “We don’t want to have Taliban’s in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it?”

I spoke to two counsels who appeared for Salim who confirmed that these statements were indeed made in court. Thereafter, I wrote a short note on Justice Katju's offensive remarks, calling for sharp censure from the Chief Justice. More importantly, I opined that notwithstanding the merits of the case, Justice Katju's callous and insensitive comments about a minority community renders him unfit to be an impartial judge in a case involving the religious rights of that very community. Therefore, the case must be reheard before another bench and it must be considered afresh whether or not Salim's SLP can be admitted.

I sent this short note of mine to a leading newspaper a few days back and they were meant to carry it the very next day. Unfortunately, they expressed reservations at the last minute, citing their fear about potential contempt issues.

I was taken aback: Does every critique of a judge amount to contempt? And besides, if our media shirks away from carrying any critique of a judge, no matter how offensive his remarks, whither our core democratic and free speech values enshrined in the Constitution? And whither the interests of a minority community, whose sentiments are so liberally trampled upon by a judge, meant to uphold constitutional values?

Isn't it fair to demand that a judge who equates every Muslim with a beard with a member of the Taliban is censured? And to argue that such a judge has breached the secular fabric of our Constitution in very deep ways. And that he is not fit to hear a case involving a minority community about whom he has made these gravely offensive remarks?

I am extremely saddened at the attitude of the newspaper in this regard, but do hope that better sense prevails. I have asked them to indicate which portions of the note they've construed as contemptuous, with the hope that such portions could be worked around. In the meantime, if any of our readers know of any courageous papers that may be willing to publish such a piece, please let me know.

Now coming to legal analysis bit, I beg to differ with Venkatesan's views for the following reasons:

1. Most of the decisions delineating the scope of Article 30 would appear to suggest that Article 30 is not an absolute right. Rather, the state has some powers to step in, if the minority institution in question is mal-administered. And this limited power to regulate would also encompass the admission process, particularly when the institution in question has received state aid (TMA Pai case). The power to regulate would also appear to reduce (somewhat) when the minority institution in question has not received any state funds. In Salim's case, the convent school in question has not received any state funds.

2. It is highly improbable that a court would find that a uniform rule that required all students to have a clean shaven countenance amounts to evidence of "maladministration". An unequal application of such a rule might have demonstrated bias and therefore maladministration. But there is nothing on the facts to indicate any such unequal treatment. The petition filed before the Supreme Court speaks about the fact that Sikhs are permitted to keep their beard, hinting at the fact that the school might have made an exception for Sikhs in this regard. However, I spoke with counsel appearing in this case who confirmed that to the best of his knowlede, no Sikh or other student had ever received preferential treatment under the school rules. In other words, the school was likely to ask even Sikh students to erase facial hair.

3. Saleem argues that his right to freedom of religion under Article 25 has been violated. However, Article 25 itself begins by stating that it is subject to other provisions. In other words, Article 30 would trump Article 25 in this context.

One might even draw some support from Article 28(3) that stipulates that any unaided institution can impart religious instruction without the consent of the student or his/her guardian. If a Muslim student can be forced to kneel down and pray at a church (belonging to a Christian convent), surely such a student can also be made to shave his beard, even when such shaving contravenes his religious beliefs. As the MP High Court rightly put it, the student does have an option if he/she is troubled by such a rule: leave the school!

Therefore the Supreme Court bench may have been right in denying admission to Salim's SLP. However, in view of Justice Katju's statements made in open court that equated very bearded Muslim with a Taliban, the possibility of bias against a community cannot be ruled out. And the Chief Justice must not only censure such remarks, but take immediate steps to have this case reheard before anther bench. For justice must not only be done, but also be seen to be done!

Prashant Bhushan's talk in Oxford (and legal and political criticisms)

Update: Arvind Narrain's LASSNET paper linked below (and here).

Prashant Bhushan (noted public interest lawyer) presented a carefully-researched paper titled Sacrificing Human Rights And Environmental Rights At The Altar Of “Development” in Oxford on the 14th of March 2009. The full-text of the paper can be accessed here. Citing several cases, the talk concluded as follows:

The trend of recent cases, therefore, suggests that (1) the Court has often subordinated civil liberties to the perceived imperative of state security, particularly in the context of the recent “war on terror”, (2) The Courts’ liberal and expansive pronouncements on socio-economic rights under article 21 have not been matched by a determination to implement those rights, (3) That since the liberalization of the Indian economy, even the courts’ rhetoric on socio-economic rights have been weakening, (4) That very often the Court has itself ordered the violation of those rights, violating in the process even the principles of natural justice, (5) That whenever socio-economic rights of the poor come into conflict with environmental protection, the Court has usually subordinated those rights to environmental protection, (6) That whenever environmental protection comes into conflict with what is perceived by the Court to be “development” or powerful commercial vested interests, environmental protection is usually subordinated at the altar of “development”, or such powerful interests. There are of course exceptional judgements which defy these trends, particularly from High Courts.

One strand of discussion that emerged after the talk (although not necessarily directed towards Bhushan's paper and one with which he sympathised) related to the nature of academic criticism of judgments. The argument was that Indian legal scholarship has usually offered political criticism of judgments, but a 'legal critique' has not always been forthcoming. While the importance of the former cannot be denied, the latter may sometimes be useful (if only strategically, since legal language is one that judges understand better).

The discussion made me think about Arvind Narrain's paper presented at the LASSNET conference where he made a similar point in the context of the queer rights movement. Except those adhering to legal realist schools of thought, few of us will consider the following claims to be legally plausible (whatever our position might be ideologically):

1. That by providing due process norms for determination of who is a foreigner, Parliament had in effect allowed unrestricted immigration, which amounts to external aggression under Article 355--therefore the IMDT Act was unconstitutional.

2. That the Chief Justice of India's Office is not part of the Supreme Court, nor is it a 'public authority' under the RTI Act.

How then do our top lawyers get away by saying things any competent first year undergraduate will know to be nonsense? Don't legal academics need to share some blame for allowing them to get away with such arguments? (Of course there have been exceptions, and the claim that most critique is only political is a huge generalisation. The claim is admittedly anecdotal, and perhaps only relative. Yet, I believe the broader argument stands.)

Legal and political critiques

Some readers have asked me to elaborate upon the distinction between legal and political critiques. Admittedly, the distinction is not always clear. But very broadly (and with many exceptions), I think the effect of an order in a judgment can be criticised on the basis of various political values, while how that result was achieved (i.e. the reasoning in the judgment) may be subject to legal criticism. In effect, the latter claim recognises that interpretation is not an unrestricted exercise--therefore, it believes that the (caricatured) legal realist claim that 'law is what the judge had for breakfast' is wrong. One may disagree on what makes an interpretation illegitimate. Examples include Hart's famous 'vehicle in the park' problem, or Dworkin's hypothetical judge Hercules who must adopt the best normative principles that fit within a given legal history. Whatever may be one's approach to legal interpretation (except Legal Realism), at least some interpretative exercises will be illegitimate. This is an internal legal critique--when the Court says that delay by rule of law procedure for nationality determination encourages 'external aggression' and therefore such procedure is unconstitutional, that is not an interpretation most normative appraoches to law can sustain.

This is only a general explanation. Sometimes law itself may deem certain results to be impermissible--criticising these results can thus be legal as well as political. I must reiterate that I think there is enormous value in political critiques. I just think that there is value in legal critiques as well (strategic as well as normative). In failing to make them, we in fact allow the law to be what the judge had for breakfast.

A Bright(er) Day in Pakistan

Awaking to the news that the government in Pakistan had agreed to reinstate Chief Justice Chaudhry I couldn't help but feel a pride in the legal profession and happiness for all those lawyers in Pakistan who have sacrificed so much in terms of personal safety and lost income in making this happen. Hopefully, it will mark a step in the direction of a politics where every group (whether the political parties, military, judiciary, or outsiders like the Americans) realizes it is impossible for any one group/person in the country to dominate power by themselves . Instead, everyone will benefit by strong institutions that allow power-sharing along pre-agreed rules of decision-making (i.e. a robust constitutional system).

That said, there are still plenty of reasons for concern, even when just looking at the independence of the judiciary. That part of the reason Sharif called off his protests was that Zadari also agreed to appeal the case that disqualified him and seemingly guaranteed that the verdict would come out differently does not bode well for judicial independence. Nor is Sharif's record on judicial independence clean - he has in the past physically attacked the Supreme Court as well as threatened to imprison a sitting Chief Justice.

On a more academic note, we might also want to consider what made the Chief Justice such a powerful figure in all this - i.e. his or her ability to decide who sits on what panels and which cases are taken or not, and thereby directly control outcomes of cases and their timing. A similar system of course is found in India as well. Not all panel Supreme Courts have this design though. Mongolia, for example, creates a small committee of Surpeme Court judges to decide how cases will be distributed. This may not be the system one wants to follow, as although it arguably makes it more difficult for the executive to control one judge who can control the Court, it also prevents "maverick" chief justices like Chief Justice Chaudhry of having as large of an impact. Still, I think recent events will help feed our understanding of what a Chief Justice's role should ideally be.

For those interested I've found that generally the best coverage of the second long march in Pakistan has come from the Dawn.

Supreme Court's Annual Report (07-08): A quick appraisal

At its website, the Supreme Court of India has published an annual report that seeks to cover developments from Oct 2007 to Sep 2008. In the foreword to the report, Chief Justice Balakrishnan suggests a reason for the issuance of such reports: “Free flow of information not only enlightens our people, it also enables them to form an informed opinion on the functioning and efficacy of our Public Institutions." This, indisputably, is a laudable objective, and is especially welcome given the recent efforts of the Supreme Court to evade the application of the Right to Information Act to its operational details, which have added to the impression that the Supreme Court is not amenable to the ethic of transparency that it sets for other public institutions within the country.

The third of its kind, the Report provides considerable statistical information about the caseload of the Court (both historically and during the period under review), and details about its operational procedures. Other sections provide details (often quite perfunctorily) about the Arrears Committee, the Registry of the Supreme Court, the National Legal Services Authority, and the National Judicial Academy. The Report contains several valuable little nuggets of information – such as the fact that its budgetary outlay for 2007-08 was 56.74 crores, whereas the amount for the current year, 08-09, is 57.04 crores - which make perusing its contents a worthwhile task.

With its glossy, high definition pictures of judges and parts of the Supreme Court building, and the very thin descriptive styles of some sections (particularly the one dealing with its history), the Report at times has the tone of a corporate public-relations document. Still, given the lack of information about this important institution historically, this is a step to be welcomed.

The feature of the Report which seeks to go beyond the thin descriptive elements of the previous two versions is an essay by Professor G. Mohan Gopal, the current Director of the National Judicial Academy, titled ‘The Supreme Court in the morning of the 21st century.’ In the 24 page essay, at pages 83-107 of the Report, Prof. Gopal attempts to provide a brief overview “of the work of the Supreme court in the first eight years of the new millennium.” Going beyond the one year period of the Report, the essay covers significant decisions and trends in the substantive jurisprudence of the Supreme Court since 2000, while also providing a quantitative overview. A vast number of cases are covered in the essay, and this is an important resource for identifying significant Supreme Court decisions handed down during the 2000-08 period. Even as it identifies seven "social challenges" and the Supreme Court's response to these challenges in its jurisprudence, the essay does not seek to analyse any of the decisions in sufficient depth, but perhaps that is to be expected in what is essentially a survey rather than an analytical essay.

The chief value of such reports is in the statistical information about the working of the Court that they provide. They can be extremely useful resources for scholars and observers of the Court who are able use this data to reveal important implications for the functioning of the Court (as posts on this blog by Nick Robinson amply demonstrate). Perhaps the court should consider including more scholarly analyses of its functioning (the note by Prof. Gopal is a good first step in this respect) in future versions. That apart, the availability of such information should make scholars focus more pointedly on the quantitative aspects of the functioning of the Supreme Court, leading eventually to a more empirically grounded account of the Court's work.

When Should a Disposal Become an Opinion?

So, here's the breakdown. In 2007, the Supreme Court disposed of 61,845 matters. 5,054 of these were regular hearing matters. Out of these the Supreme Court released 1,488 written decisions (based on JUDIS). That year there was about a 29.5% chance that a disposed regular hearing matter would result in a written decision (at least one that would in any way live on in SCR or Manupatra or Indian Kanoon, etc.). And keep in mind, only published decisions have a realistic chance of impacting the law going. In 2006, about 24% of disposed regular hearing matters resulted in a released written decision (1146 out of 4762). In 2005, 19.6% (861 out of 4382). (Overall based on these years there seems to be about a 1.8% to 2.8% chance that a case that gets submitted during admission phase will eventually result in a released written decision, although these numbers are approximations because cases enter the system during different years).

Now, these numbers I cited so far I am fairly confident in because the disposal numbers are from the Court and can also be checked against the Supreme Court's annual report (and they are close, even if not quite a perfect match) and the JUDIS numbers can be checked against Manupatra and Indian Kanoon (and the numbers are close, although not a perfect match if you do searches in these years). When you try to look historically it's difficult to be as confident in the numbers, but is still worthwhile. The annual report lists disposal numbers for past years which I will assume are accurate (although sometimes they vary somewhat widely between subsequent years). Furthermore, when you do searches on JUDIS (J), Manupatra (M), and Indian Kanoon (K) for previous years you start getting fairly divergent results. For a bit of flavor look at this preliminary chart (apologies for the scrunching - the first number is the year, followed by the number of disposed of regular hearing matters that year, followed by the number of written opinions that came out that year based on legal database searches, with the last number being the % this is of the disposed of regular hearing matters):

Year Reg. Hearing Disposal Written Decisions %
1951 227 54(J)/80 (K) 24
1955 200 81(J)/126(K) 40
1960 1,271 273(J)/328(K)/320(M) 21
1970 2,569 258(J)/408(K)/507(M) 10
1980 2,433 239(J)/448(K)/511(M) 10
1990 4,348 405(J)/715(K)/769(M) 9
2000 4,320 714(J)/1548(K)/1769(M) 17
2003 6,905 714(J)/1324(K)/1147(M) 10
2005 4,382 861(J)/918(K)/858(M) 20
2006 4,762 1146(J)/1193(K)/1140(M) 24
2007 5,054 1488(J)/1522(K)/1439(M) 30
2008 6,240 2676(J)/2443(K)/1877(M) 43

The %'s are based on Judis numbers, and some years they would be quite different if you based them on Kanoon or Manupatra. I'm not sure what accounts for this variation, but perhaps someone can comment on it who might know. It is difficult to draw too many conclusions until this is clarified. It does seem in the last few years at least there has been a spike in both the raw number of judgments released and their % of overall disposed of regular hearing matters. (It should also be noted these are just general searches of legal databases by year so they would also pick up interim orders, but this should be a relatively small part of the overall hit load).

Even once we get a better handle on these numbers historically, do we know what an ideal % level or raw number would be for the number of judgments the Court writes and releases each year? For some Supreme Courts (like the U.S.) it writes and releases close to 100% of judgments for regular cases it disposes of, but it's caseload is obviously much smaller and it has a different function in American society and within the American judiciary. Written opinions provide accountability and arguably legitimacy, but they may not be needed/desired in many cases the Indian Supreme Court disposes of. However, what are all these cases that don't result in a written, released opinion? And what % are what? Are they dismissals? Are they withdrawn from court in a settlement that doesn't result in an opinion? Are they one-line orders not worth reporting? Are they orders just spoken in court? Are they cases that don't involve a point of law, and if so, what are they being decided on?

Once we have a better sense of what these unreported cases are we would then have better information to judge how many of them should result in written, released judgments that are then documented in SCR, etc. Also, it would give us a better sense of how, if at all, we want to keep track of them - perhaps, the Court should provide for the public some other type of record that indicates what happens to this part of its caseload. Alternatively, it might be decided that this isn't needed and would just be a waste of time.

Because of the Indian Supreme Court's high caseload it's an apex court that lends itself to/requires analysis through statistics in a way other Apex Courts might not. It's impossible for any one person to follow all of the Court's activities without in part using using statistics to break down it's caseload. This is not to say in any way you can understand what the Court does solely through statistics - you obviously can't; or that you can't be misled by them - you obviously can. The challenge, and the academic debate, in this situation I would argue is to determine which statistics are desirable to track, figure out what they mean, and then use this information to inform your decisions and arguments about where the Court should head.

Judicial Pay and Performance

That judges are not well paid is a commonly aired grievance and was cited as the reason for the recent hike in judges’ salaries approved by the Union Cabinet. A similar complaint has been repeatedly made in the US by none other than the Chief Justice and other SCOTUS judges in speeches and before Congress of that problem now having ‘reached the level of a constitutional crisis’. This NYT article (link via marginalrevolution) cites two studies that challenge this claim as it pertains to the US. The first of them is a study of judicial pay-versus-performance in federal circuit courts and the second of state court judges. While it is no doubt true that the Indian system of appointments is very different and is difficult to compare with either of them, the first study is probably the closer of the two to India as direct election of judges is not involved.

Scott Baker who authored the first study found a few small but significant effects. One is that low pay is associated with slightly fewer dissents. Another is that judges coming from private practice write opinions faster than those coming from positions as government lawyers (again, this effect is not ‘terribly big’).

He also tests whether paying more creates a judiciary less motivated by its own influence. He quotes Ann Althouse who claimed thus: “If the pay is low, the judges will be the kind of people who don’t care that much about money. They might be monkish scholars, or they might be ideologues who see in the law whatever it is they think is good for us. . . . Low judicial pay should trouble us not because the judges will somehow lack ‘excellence.’ It should trouble us because the law will be articulated by ideologues and recluses.” He examines this question by asking whether the monetary loss suffered by judges correlates with citation bias, i.e., a greater incidence of citation of opinions of their ideological brethren but finds little evidence to support this contention.

He concludes that “the effect of low judicial pay is non-existent, at least when judicial pay is measured against the next best financial opportunity for most circuit judges. Low pay does not impact voting patterns, citation practices, the speed of controversial case disposition, or opinion quality.

… Low judicial salaries erect a barrier to entry onto the bench for some candidates. But this barrier is inconsequential if those candidates who are willing to take judgeships are indistinguishable from those candidates driven from the applicant pool by low judicial salaries. That is the story these data support.”

In the other study, the authors set out arguments about the factors that ought to determine judicial pay. One of the points they make is about comparison between judicial salaries and that of other legal professionals:

“…Judicial pay should advance the interests of the public. Whereas the existing debate focuses on comparisons between the salaries of judges and other legal professionals such as lawyers and law professors, the relevant question is not whether these salary differences are unfair. Compensation should be designed so as to give judges incentives to perform their office diligently in the public interest and to attract qualified people to judgeships. When raising salary does not change, or worsens, incentives, it is inadvisable; when it attracts people to judgeships who are more productive in the private sector or improves the patronage opportunities of elected officials, it is also inadvisable.

… We should pay judges more only if the incremental increase in pay will improve the social value of judicial performance more than the social cost of the higher pay.”

The big challenge, they acknowledge, is in determining that social value. The question they raise is relevant even to India given the opacity of our system of judicial appointments: could the increase in compensation trigger greater patronage opportunities in a system where elected officials have a more modest role to play?

Reflecting on the Powers of the CJI

It has often been commented that the Chief Justice of India is a remarkably powerful position within the Indian judiciary, and more powerful than most executive justices in courts in other countries. My last post below discusses one way (the assignment of justices to larger constitutional benches) in which this power has expanded beyond what may have been envisioned in the Constitution.

The Constitution itself clearly lays out heightened powers for the CJI. Broadly, these are:
The CJI swears in the President and Governors;
the President must consult with the Chief Justice before appointing Supreme Court or High Court judges;
Article 127 gives the CJI power to appoint ad hoc Supreme Court judges
Article 128 the power to sit retired Supreme Court judges
Article 130 the power to sit the Court outside of Delhi (with the President's approval)
Article 146 the power to appoint officers and servants of the Court
Article 222 the power to move high court judges to another high court
Articles 257, 258, and 290 which gives the CJI the ability to appoint an arbitrator to resolve certain financial disputes between the centre and the states
He or she is also paid a bit more than the rest of the justices, (presumably) for taking on these additional responsibilities.

[note some of these powers are performed in conjuction with other justices, but the Chief Justice must be part of the process]

Beyond this though I would argue the CJI has also gained additional powers either through judicial decisions or just judicial practice that were not explicitly given in the Constitution:
1. The power to select justices for benches (as explained in the post below)
2. An arguably stronger ability to appoint judges on the Supreme and High Courts than the Constitution envisioned (This being affirmed by the Supreme Court in its constitutional case law.)
3. By more often sitting on a three judge bench than other justices his opinions routinely carry more weight. On a two-judge bench the junior judge usually defers to the senior, similarly on a three judge bench with the CJI, but the difference is that a three judge opinion is usually deferred to in the face of a conflicting two judge opinion - in this way the CJI's routine opinions carry more weight than other senior judges on their two-judge benches.
4. The power to decide which cases get heard and when. Although this process is rather opaque, my understanding is that if a CJI doesn't want a case to come up or wants it to come up right away, it can be made to happen.
5. The spokesperson for the Court, and its most public face. I am not sure if you can say this was not envisioned by the Constitution, but it is striking. For example, in the Hindu in 2008 Chief Justice Balakrishnan's name appeared in 273 articles, while Justice Katju only 24, Justice Pasayat 69, Justice Bhandari 26, Justice Kabir 28, and Justice Kapadia 16. Contrast this to a search of SCOTUS justices in the NY Times in the same time period where Chief Justice Roberts was mentioned in 66 articles, Justice Scalia in 61, Justice Stevens in 49, and Justice Kennedy (the now most important swing vote) in 158 articles.
6. Most letter PILs are addressed to the CJI whose office goes through the first wave of filtering (taking out complaints against judges, etc.) before they are turned over to the Registrar's PIL office who goes through the next round of filtering (which removes the vast majority of them before they even reach an admission bench of the Supreme Court). In this process the CJI's office is the only justice's office that will come in contact with these letter petitions before they make it to the PIL office.

Just because some of these powers were not explicitly given in the Constitution, doesn't make them unconstitutional, and I am not making that argument. At least in this post I'm not even arguing that the CJI has too much power - Judith Resnik in the US, for example, has questioned the wisdom of having the Chief Justice there wield as much administrative power as he does. I'm more curious about why this power arose.

My hunch is that much of it has to do with the size of the Supreme Court. With 25 other justices it's a rather unwieldy organization that is difficult to control. (What percentage of law professors in India can even name all of its current members?) As the court increases in size the Chief Justice ironically gains more power as the coordinator of all these other judges (who cycle through fairly quickly because of term limits thus creating collective action problems when they try to organize). This is something to keep in mind as an increase in the size of the Court is contemplated.

One thing this type of analysis does is refocus attention on the selection process of the CJI. Currently it's simply by seniority. This is not as innocuous as it sounds though since through birthday math one can determine whether someone will become a CJI depending on when they are appointed. Therefore, the CJI and the other judges involved in appointments are effectively choosing who to raise from the high courts to become a CJI at a later date (assuming they stay in good health, do not resign, etc.). This isn't necessarily a bad outcome. Arguably, this allows for the system to choose CJI's that have the proper background and temperament for the job.

Other alternatives would include having the CJI picked more explicitly by the political branches (something that for now seems ruled out, but perhaps could be considered at a later date). Alternatively, there could be an election for CJI from amongst the judges on the Supreme Court. This doesn't seem desirable as it could lead to vote trading on cases or a politicking that could bring down the prestige of the Court and create unhealthy rivalries. A rotation model where each justice could be CJI for a month has coordination and consistency problems, although perhaps some tasks could be delegated in this way. Finally, you could have a system where the CJI or judges are picked by a counsel that includes both judges and members of the political branches.

One could also work to simply reduce the power of the CJI. Cases could be assigned purely through lottery, cases could come before the Court on a pre-regimented schedule, the CJI could more regularly sit on a two judge bench, some administrative tasks concerning court employees could be given over to an independently appointed officer, etc.

I'd be curious to hear others thoughts. Did I miss some of the CJI's powers? Did I mischaracterize them? Why did these arguably additional powers arise and do any require reform? These are just some initial observations which I hope to build on later, but in the meantime I hope others do as well.

Was it Chief Justice Sharma in R.C. Poudyal v. Union of India?

In a previous post I discussed some research I had done where I found in the last ten years the Chief Justice had never been in dissent in a five judge bench or above. I suggested that this may be because since the CJI has power in selecting who sits on these larger benches he may be creating panels that are more likely to agree with him. I also suggested some potential ways of assigning judges to panels which would not give the CJI as much of a controlling hand or perceived controlling hand. This sparked a lively discussion from which I learned a great deal.

I recently got a chance to keep going back through five judge benches above on which the CJI has sat (again through Manupatra searches). I found no dissents (although a few concurrences) until Chief Justice Sharma's dissent in R.C. Poudyal v. Union of India in 1993, about 15 years ago.

In this case the reservation in the Sikkim legislative assembly for Sikkimese of "Bhutia-Lepcha" origin and for "Sangha" Buddhist Lamaic monasteries was challenged (the Sangha reservation also used a separate electoral roll). The challengers argued this reservation violated the Constitution's essentially republican and secular nature and the concept of "one person-one vote." The majority of three judges found that these reservations did not violate the Constitution or its fundamental features. Chief Justice Sharma and Justice Agrawal had separate dissents. Chief Justice Sharma argued that the Constitution did not allow for religious reservations or separate electoral rolls so these reservations were unconstitutional.

The opinion was handed down the day before Chief Justice Sharma was set to retire. With such a small data set it's difficult to draw too many conclusions from this. However, it reminds one of Aharon Barack's more recent dissent in Adalah v. Ministry of Interior in 2006. The Israeli Supreme Court also uses smaller panels like the Indian Court. As President of the Israeli Supreme Court for almost a decade Barack had a controlling hand in setting up which judges sat on which panels. He rarely found himself in dissent (never as far as I know, but I haven't looked into this enough to make that broad a claim) until Adalah which was decided shortly before he was set to retire (and also was a larger 11 judge bench, which arguably is much more difficult for an executive judge to control). This may point to an executive judge's power not only coming from his or her ability to create panels that have judges that are more likely to favour the executive judge's opinion, but also out of the threat of potential sanctioning through ongoing interactions (i.e. not being placed on important panels in the future). This hypothesis though is difficult to show with such a small data set. Also, as I went through the Indian judgments over the last 15 years I found that although often certain judges would be in a minority dissent they would then be on a later larger bench with the Chief Justice again, so it does not appear they were being punished for not agreeing in an earlier decision. Again, you would need more detailed analysis to come out with a conclusion either way.

One of the comments on my last post on this topic made the insightful comment that we would also need to look at this phenomenon from the perspective of CJI's dissent records before they were CJI - i.e. if a CJI was often in dissent before becoming CJI and then never or rarely was after this would add an additional way of showing that he may be selecting judges that are more likely to favor his outcome preferences.

One final note, although I went through the Manupatra judgments with a fair amount of care Manupatra makes mistakes and I certainly make mistakes so if anyone knows of any dissent by a CJI in a five judge bench or above (or even a three judge bench) since Poudyal please let me know.

The Robinson-Reddy exchange on the Supreme Court: A 'blast from the past'

In his stimulating post below, Vivek Reddy takes issue with Nick Robinson’s persuasively argued case for reducing the acceptance rate of cases before the Supreme Court. The points each of them brings up reminded me of a 1994 SCC (Journal) article by TR Andhyarujina, written soon after a study-visit to the U.S. Supreme Court. Like Reddy and Robinson, Andhyarujina’s remarks also appear to have been stimulated by his exposure to a different way of doing things. Re-reading that article, I find that Andhyarujina’s analysis provides support for different positions now taken by Reddy and Robinson.

On the issue of reducing the case-intake of the Supreme Court, Andhyarujina considers the U.S. Supreme Court's practice carefully, before coming to conclusions on the Indian situation that are similar to those reached by Reddy:

Though giving of special leave by the Supreme Court of India is discretionary, the Court has not explicitly laid down the basis of its jurisdiction. Unlike the U.S. Supreme Court, the Indian Supreme Court does not restrict admissions to cases which are of national or fundamental importance requiring the decision of the highest Court. The prevailing political, social and legal conditions in India impose far greater demands on the Indian Supreme Court which the Supreme Court of United States is not subject to. The Supreme Court of India is necessarily more expansive and activist because of these conditions in which it functions. Much of the time of the Supreme Court is taken in entertaining humanitarian and social causes, human rights cases and exercising what is called "poverty jurisdiction". The fact that a litigant has an individual grievance only has not been a reason for rejecting it. Giving finality to a litigation has also not been the consideration of the Supreme Court for declining to exercise its jurisdiction.

… With this expansive and almost invitational jurisdiction now developed by the Supreme Court of India it appears now impossible for the Court at this stage to restrict itself in the manner the U.S. Supreme Court has done without losing its relevancy to the litigants or being considered elitist. However, an expansive and open-door jurisdiction exacts its toll on the efficiency, quality and expeditious disposal of cases of a Court, as it has done in the case of the Supreme Court of India. If the Supreme Court of India has to restrict its decision-making in the same manner as the U.S. Supreme Court has done, there would have to be a fundamental reappraisal of the role of the Supreme Court in our society. Simultaneously, there would have to be far reaching structural changes at the High Court level to ensure a higher level of qualitative administration of justice in the High Courts, with at least one right of review or appeal by the High Courts themselves. At the national level a National Court of Appeals may have to be set up, co-equal to the Supreme Court, leaving the latter to restrictively function as a Constitutional Court.

Andhyarujina does, however, agree with Robinson that the oral tradition at the Supreme Court should be supplemented by a far greater emphasis on written submissions:

The system of submitting detail[ed] and comprehensive written briefs should be introduced in all regular hearing of cases in the Supreme Court. Written briefs have several advantages. They enable lawyers to antecedently prepare the case thoroughly instead of the last minute preparation of cases by lawyers, only when they are listed for hearing. Secondly, they enable the judges to be completely prepared at the oral hearing, as the written briefs will contain all statutory provisions and the relevant case law as well the facts of the case and legal submissions. Thirdly, they will dispense with the necessity of the judges making detailed notes of counsel's arguments in Court for their judgments. Finally, the oral arguments will be considerably abridged as judges will have known the parties cases and they could confine counsel to answering their doubts and clarifications in Court. With written briefs being made obligatory the Court can limit the oral hearing of each case to a limited time specified in the cause list of the day itself.

The Supreme Court Rules originally required parties to prepare a Statement of Case by each party. It was a mistake to do away with this. A Statement of the Case whilst not as exhaustive as the U.S. Supreme Court brief, was extremely useful in a methodical and expeditious presentation of the case when a Statement of Case was well prepared and was read before hand by the judges. This writer remembers that in the President's Reference in the Parliamentary Privileges case he and his Senior, the then Advocate-General of Maharashtra Mr H.M. Seervai appearing for the U.P. Vidhan Sabha prepared the Statement of Case on Parliamentary Privileges for over two months in chambers. Every relevant authority-Indian, English, Australian and U.S. was found out, old and new, and was digested in the Statement of Case. It enabled our side to open the case with great ease and complete familiarity of the subject when the Reference was heard a few months later. Portions of the Statement of the Case were frequently referred to by Court and Counsel in the Reference.

The English Court of Appeals also now by a Practice Note requires each side to submit "Skeleton Arguments" several days in advance to the hearings in Court and to the opposite side before the case is heard. ... ... [The perception is] that they considerably help to reduce the oral arguments in Court whilst not sacrificing the traditional value attached to oral arguments by the English Courts. A written brief should therefore be made mandatory by the Supreme Court Rules when a case is to be regularly heard by the Supreme Court. Its utility and quality should be insisted upon by the judges and its absence should be visited by the penalty of not hearing the party who fails to present the written brief to the satisfaction of the Court.

It seems a bit of a pity that nothing much seems to have changed in the 14 years since Andhyarujina wrote his piece. Contemporary discussions about possible reforms will, hopefully, meet a dissimilar fate.

[The good people at Eastern Book Company have compiled a very useful list of articles (some of which are available freely online) that have been published in the SCC Journal from its inception till around 2001. Since more recent articles seem to now be behind a subscription wall, I am unsure how long this list will be available for free. Since the SCC Journal continues to be a place where judges and senior lawyers publish often significant views, and it contains articles which have become classics, this list should be very valuable to students of the Court.]

Changing Role of the Supreme Court - A response to Nick Robinson

Nick Robinson’s interesting piece in Frontline argues that the Indian Supreme Court can reduce the backlog by reducing the number of cases it admits. Nick’s diagnosis goes to the root of the problem. But I partly disagree with his prescription. I agree with Nick that increasing the number of judges or their pay or cutting down the vacation time will have an effect but these are only makeshift changes. The Supreme Court hears and admits far too many cases than it can handle and this precludes it from effectively adjudicating the cases it admits.

Having worked in the US courts for four years, I used to believe that Indian Supreme Court should have a strict entry policy – if the input of the cases coming into the system is low, the quality of the output in terms of judgments would be better. If the Supreme Court of India confines itself to admitting those cases which will resolve contested questions of law, there is a possibility that the quality of deliberation and the quality of judgements could improve.
I believed in this thesis till I actually started working in Indian courts for the last seven months. And I realized that confining the admission of cases to the Supreme Court is not enough and not fair. Let me make my point by comparing with the US model – not because the US is a model for judicial structures – but only to contrast to explain my point. (Also Nick cites the US example)

First, in the United States and in UK, an appeal is what it stands for - a request to the higher court to correct the legal error in the judgment of the lower court. In India, an appeal signifies something much more. It is perceived as an insurance against corruption (monetary and otherwise). So pervasive is the perception about judicial corruption that an appeal is perceived to be a safeguard against it. And therefore the need for the intervention of the Supreme Court. And that’s the reason why litigants approach the Supreme Court even against the interim orders of the High Court and Supreme Court does entertain those petitions and rectifies the orders. It also acts as a check on the High Court.

Second, in the US, before a case comes up to the Supreme Court, it goes through layers of appeal. We must distinguish between the federal cases and the state cases. In federal cases, the case goes to the District Court and then to the Circuit Court, whereas the State cases go through several ladders depending on the state (ranging from 2-3 layers including the State Supreme Court and it comes to the Supreme Court only if a federal or constitutional issue is involved). Because of this multi-layered appeal structure, the US Supreme Court can afford to take the position that even if it finds a judgment to be incorrect, it will not entertain the appeal and confine itself to important cases.
But in India everything gets mixed up. There are many cases where the Supreme Court is the second layer of appeal – from the Division Bench in the High Court to the Supreme Court – to cases where the Supreme Court is the fourth layer of appeal (District Court to Single Judge to Division Bench of High Court to the Supreme Court).

Third, the Indian Supreme Court over the last decade has become a source for institutional change and a bulwark against corruption, degradation of environment and abuse of political power (although there are regretful exceptions) Despite attacks from the political and social groups, the Supreme Court has been able to preserve this role. Sustaining this role implies several cases which are filed directly in the Supreme Court. It is debatable whether the High Courts can perform the same role, particularly when the jurisdiction of the Supreme Court is limited. Fourth

Fourth, another source of litigation in the Supreme Court are several Central legislations which confer an appellate power on the Supreme Court directly from the tribunal overriding the High Courts. This is a rich source of litigation in the Supreme Court. The Supreme Court in Chandra Kumar tried to stop this tide of approaching the Supreme Court straightaway, but that has not stopped the Supreme Court from entertaining the cases directly from the Tribunals. The recent Law Commission Report has recommended that Chandra Kumar should be overturned. If that recommendation is accepted, we can see more litigation coming to the Supreme Court. Like the Indian Constitution, the US Constitution also enables the Congress to confer additional power on the Supreme Court, but the US Congress rarely invoked it.

In conclusion, I don’t disagree with Nick that Supreme Court should admit fewer cases, but it should be preceded by institutional and structural reforms. I did not want to elucidate upon these reforms in this post

Salve at Oxford - Terrorism and (a political analysis of) PILs

Mr Harish Salve, former Solicitor-General, gave a talk last night (03 December 2008) at Exeter College, Oxford. The two themes he discussed are summarised below:

On terrorism:
Mr. Salve noted that this attack has been perceived differently, whether or not it was in fact different (he acknowledged, without accepting or rejecting it, the explanation that this may have something to do with the fact that this time the rich were targets). But he did say that the thing most different about this attack was the reaction of the 'middle classes'. Speaking as a lawyer, he lamented that the most immediate fall-out is likely to be a thorough discrediting of the human rights discourse. He also referred to the intense pressure the government is under to act swiftly and decisively, and worried that this might lead to hasty actions. Whatever the outcome, he believed that the incident has the potential to reshape the geo-political realities of the region, and perhaps the world, and also have very important implications for domestic politics in India.

My Comments -
Arun has referred to Darryl Li's brilliant analysis on this blog, which argued against the dangers of seeing this incident, dastardly as it is, to be unique and transformative. Mr. Salve indicates that whether we like it or not, the preception is definitely that this is India's 9/11. My own hypothesis is that in being a drawn out rather than an instantaneous event, captured live on television and CCTV cameras, must have something to do with our perceptions. Images can be powerful, especially if they linger. Its real parallel with 9/11 might lie in the role playes by these images in shaping our perceptions of the events (remember the planes hitting the twin towers?).

On public interest litigation:
Some of the talk entailed detailed explanations for an international audience, but it did contain some original analysis which might be unfamiliar and will interest us here. Mr. Salve contextualised PILs as a tool used by the Supreme Court to establish its identity as 'a relevant institution of government'. This is the same theme he elaborated upon in his last talk in Oxford, which was reported on this blog.

He proceeded to give a historical account of India's judicial system, with its roots in colonial times. He mentioned anecdotally that low-caste villagers involved in land-disputes would join the British army to become eligible to access the colonial government's courts rather than the local panchayats (and thereby improving their chances of success).

He then traced the foundation of the Indian Supreme Court in the image of the US SC, although the young Court remained fairly conservative till the mid-60s. Mr. Salve offers a very interesting analysis of the right-to-property cases of its early years. He explains that the Court had no problem when the government took on feudal powers, abolition of zamindari being an example. It was mainly when capitalist institutions like banks and industries were interfered with by Mrs. Gandhi that the SC took up the mantle to defend them.

He then outlined the embarrassing role played by the SC during emergency (in ADM, Jabalpur) and the subsequent need to reinvent itself institutionally. He mentioned the part played by judges like Krishna Iyer and Bhagwati through the '80s. This decade saw great strides in cases relating to prisoners and other marginalised sections of society. Although these cases can be seen as disturbing the institutional balance of branches of government, they did not invite any serious opposition from the other branches of government because they left the political elite largely undisturbed.

In the '90s, he said, the PIL jurisprudence came to focus on two broad themes
(1) environmental activism, which has largely continued in the new century.
(2) activism relating to transparency and good governance. Cases like Vineet Narrain took on the political elite which was hitherto undisturbed. This led to a backlash from the political elite we have seen in recent years. The judgment in Association for Democratic Reforms, discussed previously on this blog, is an indication that the SC is prepared to backtrack on this issue.

In response to a question, Mr. Salve said that the SC has consistently refused to apply the same standards of transparency to itself and what we have instead is obscurity on the functioning of the Court itself (he particularly mentioned the unsatisfactory manner of appointment of judges). In response to another question, he said that the presence of someone like Justice Katju has forced rethink on the Court's institutional role and might force the court to put PILs and separation of powers on sounder doctrinal footings.

Disclaimer - I have tried to report honestly, but there might be errors due to miscomprehension on my part. I reserve the right to made suitable modifications if such error is pointed out to me by the speaker or any of the attendees.

Judicial Activism, PILs and all that jazz

As a follow up from Madhav's post, I think that terms like 'judicial activism' can hide more than they reveal. One needs to be careful about the precise judicial role where the court is being accused of being activist. PIL is strictly a standing issue, and the only relevant question at this stage is who should be allowed to bring in an action. The various possibilities, using Cane, include (a) direct and sufficient interest standing, (b) associational standing (where a group of persons having direct and sufficient interest is represented by an organisation or person), and (c) public interest standing (where the petitioner represents the public interst).

All three categories involve different issues. It is crucial in (b) that the representation is authorised in some form by those represented - Cane calls for a 'democratic stake' by those represented in the association. The simple idea is that the association needs to have some basis on which it claims to represent my interest. This category is similar to class-action suits.

In (c), on the other hand, it is important that if public interest standing is to be allowed at all, the petitioner must do a good job of it. It is much better to not allow an inexpert (if well-intentioned) petitioner bringing in a badly argued case which creates bad precedent since it does more harm than good to the public interest. Of course the boundaries between (b) and (c) are fuzzy and there will be overlap. Was the Narmada Bachao Andolan case about associational standing or public interest standing? Rules need to be evolved for these hybrid cases, but it does not detract from the basic distinction.

Justiceability, on the other hand, is a concept distinct from standing, and should arguably apply equally to whoever brings the action. Here one has to consider whether there is any area of law which is completely inaccessible to the judiciary. I personally believe that once a violation of fundamental rights has been made out, the Court has no option under Article 32 but to consider it as justiceable - although it can accord limited deference to the Executive or the Legislature, depending on the subject matter. A good example of a case which was (wrongly) thrown out at entry stage on justiceability grounds even though it involved important fundamental rights issues was Ahmedabad Women Action Group (involving constitutional challenge to personal laws). Hunt argues against the spatial concept inherent in any talk of 'areas of deference' and says that no case can be a priori judged to be non-justiceable if it prima facie involves fundamental rights violation. The degree of deference due is a judicial decision that needs to be decided on the facts of the case, and not at the entry stage itself. Deference is obviously connected with the issue of the appropriate standard of review.

Justiceability should also be distinguished from a (legitimate) screening method used at the entry stage - whether a prima facie case has been made out (or, in other words, whether the petitioner has any chance of success) is a distinct and legitimate resource management consideration.

Finally, activism in the context of remedies is also an entirely separate issue, and one has to consider the question in the context of Article 142 ('complete justice' requirement).

When talking about judicial activism, we need to be clear in what context we are discussing it. A Court may be 'activist' on standing and remedies, which being retrogressive on standard of review.

(Comments, as always, are welcome, from stray and astray readers alike)

Tackling corruption in the higher judiciary: Interesting developments

Almost from the time of its inception, contributors to this blog have focused on the issue of corruption in the higher judiciary at regular intervals. This post from three years ago seems particularly ironic now, given its focus on the claim of the erstwhile Chief Justice of India, YK Sabharwal that corruption in the higher judiciary was "very, very minimal."

Today's papers carry items which are a sobering reminder of just how off the mark this statement was when it was made back in 2005, and how things may have worsened (or simply have become more amenable to public attention) since. Two days ago, on Sep 08, the CJI recommended that Justice S. Sen, a sitting judge of the High Court of Calcutta be impeached (Here is the link to the story in the Indian Express). Today's issue of the Express features a column by TR Andhyarujina that provides some historical and legal context.

It appears that this is only the tip of the iceberg. This story from today's issue of The Telegraph details how CJI Balakrishnan has allowed the CBI to question two judges of the High Court of Punjab on corruption related charges that have been hogging the headlines for some time now. The closing lines of the item remind us that the CJI is still to act on the Ghaziabad scam which has also been in the limelight.

While CJI Balakrishnan is to be lauded for taking positive action on these cases, which will no doubt be closely followed by the media, it remains to be seen if the judiciary will take further and stricter measures internally to address what critics have long been complaining is a serious crisis of great magnitude within the judiciary.

In the coming weeks, as the impeachment motion against Justice Soumitra Sen proceeds, his individual actions will come under close scrutiny. One hopes that the debate will also extend to the institution of the judiciary more generally. This will start a long-delayed conversation on an ailment in a stellar national institution that must be addressed urgently.

Strict Scrutiny after Thakur

Has Ashoka Thakur buried the concept of stict scrutiny in Indian jurisprudence? In this recent article published by the Journal of the Indian Law Intitute, I argue that it is a good idea that may yet be revived without overruling Thakur. The issue has been discussed previously on this blog.

Abstract:

'This article makes the case for applying a rigorous standard of review for constitutional adjudication under article 15 of the Indian constitution, which guarantees freedom from discrimination. Drawing upon the strict scrutiny jurisprudence in the United States and the proportionality jurisprudence in Europe, the article argues that a rigorous standard of judicial review in India can provide a more meaningful protection from discrimination. However, it warns against the wholesale importation of the United States jurisprudence and makes the case for excepting affirmative action measures from a rigorous standard of review. It also argues that the grounds on which discrimination is prohibited should be expandable rather than frozen. The discussion analyses two recent Supreme Court decisions on equality jurisprudence to further the argument - Anuj Garg v Hotel Association of India AIR 2008 SC 663, and Ashoka Kumar Thakur v Union of India 2008 (5) SCALE 1.'

Full text is downloadable at the link above. Comments are welcome.

Temporary shift in focus: Important case for property rights and SEZs

We are now beginning to delve into the details of the Thakur case, and I do not mean to obstruct that process. But, as with much else in life, things go on and we should continue to track other significant developments as well. One of our readers sent me this link to a news-item from Live Mint on a current case that may have implications for the right to property in general, and the debate over SEZs in particular. This seems like a significant development, and I hope Mr. Venkatesan and others can throw light on the actual proceedings in the Court on the issue. (Thanks to Avirup Nag for the alert).

Mandal II and strict scrutiny

In Ashoka Kumar Thakur v. Union of India (Mandal II case), the SC has refused to test the impugned law through strict scrutiny. However, it seems that this refusal is restricted only to affirmative action legislations, and the Court has left scope for the argument that a discriminatory law that disadvantages a vulnerable group may be scrutinised strictly. In fact, in an earlier decision of the SC delivered in December 2007 (Anuj Garg v. Hotel Association of India) a law discriminating against women was tested by strict scrutiny standard, i.e. the State was required to show a compelling interest in the objectives sought to be achieved by the law and the fact that it is narrowly tailored to achieve that objective.

Admittedly, this is only one reading of the Mandal II case, and there is enough loose wording to conclude that strict scrutiny has been buried not only for affirmative action but also harmful and insidious discrimination. In my opinion, that was not the question before the Court and the ratio of the case is certainly limited to affirmative action cases. If Article 15(1) should give rise to the same deferential 'reasonableness' test that is used for Article 14, the Court is treating a distinction between men and women under Article 15 at par with a distinction between sellers of tea and coffee under Article 14 - this surely cannot be the correct constitutional position. Hopefully later cases that deal with insidious discrimination rather than affirmative action will confirm the position in Anuj Garg that strict scrutiny does indeed have a role to play in Article 15(1) (and also Articles 19 and 21).

Relevant extracts from the Mandal II case are below (all emphases mine):

Balakrishnan CJ:

179. Thus, the first limb of the strict scrutiny test that elucidates the

"compelling institutional interest" is focused on the objectives that

affirmative action programmes are designed to achieve. The second

limb, that of "narrow tailoring", focuses on the details of specific

affirmative action programmes and on the specific people it aims to

benefit.

184. The aforesaid principles applied by the Supreme Court of the

United States of America cannot be applied directly to India as the

gamut of affirmative action in India is fully supported by

constitutional provisions and we have not applied the principles of

"suspect legislation" and we have been following the doctrine that

every legislation passed by the Parliament is presumed to be

constitutionally valid unless otherwise proved.

Summary - 9. The principles laid down by the United States Supreme

Court such as "suspect legislation", "strict scrutiny" and

"compelling State necessity" are not applicable for challenging the

validity of Act 5 of 2007 or reservations or other affirmative action

contemplated under Article 15(5) of the Constitution.

Pasayat J:
132. It is unnecessary to decide as it has been contended

by learned counsel for the petitioners whether the concept of

strict scrutiny is a measure of judicial scrutiny as highlighted

by the conditions in India. It is submitted that label is not

relevant.

139. To sum up, the conclusions are as follows:

(10) While interpreting the constitutional

provisions, foreign decisions do not have

great determinative value. They may provide

materials for deciding the question regarding

constitutionality. In that sense, the strict

scrutiny test is not applicable and indepth

scrutiny has to be made to decide the

constitutionality or otherwise, of a statute.

Bhandari J:

SUMMARY OF FINDINGS

7) Are the standards of review laid down by the U.S.

Supreme Court applicable to our review of

affirmative action under Art 15(5) and similar

provisions?

The principles enunciated by the American Supreme Court,

such as, "Suspect Legislation" "Narrow Tailoring" "Strict

Scrutiny" and "Compelling State necessity" are not strictly

applicable for challenging the impugned legislation.

Cases decided by other countries are not binding but do

have great persuasive value. Let the path to our constitutional

goals be enlightened by experience, learning, knowledge and

wisdom from any quarter. In the words of Rigveda, let noble

thoughts come to us from every side.