Strength in Numbers

This may not be the most topical issue to be blogging about presently, especially in the light of the general tenor of the posts before this, but I wanted to consider, for a moment, the policy of referring cases that needed to be reconsidered to a ‘larger bench’.



To put things into perspective for the uninitiated, the Chief Justices of our courts, and most visibly the Chief Justice of India, often refer cases to a ‘larger bench’ in exercise of their administrative powers. This is perhaps done under a belief that a bench of, say, eleven judges can more legitimately decide whether a previous bench of, say, nine judges were incorrect in their decision – but is this practice technically indispensable?



Unlike the constitutional court in Germany (which convenes in two panels or ‘senates’ of 8 justices each) and the United States Supreme Court (which convenes en banc, i.e. as a plenary body of nine justices), the Supreme Court of India convenes in several ‘benches’ usually of two judges. However, in certain circumstances, the Chief Justice of the Supreme Court constitutes a bench of three, five, seven, nine, eleven and in rare cases of thirteen judges to decide a case.



What are the benefits of referring cases to a ‘larger bench’? First, when two judges can’t agree upon the outcome of a case, they can resolve the deadlock by referring the case to a larger bench (usually of three judges). [Indian judicial benches do not usually convene in even numbers except in two judge benches, or in exceptionally rare circumstances where one judge in an odd numbered bench has to recuse himself from a case that otherwise has to be urgently decided.



Second, the Supreme Court of India, unlike various constitutional courts worldwide, has ‘generalist’ powers of adjudication. In other words, while the constitutional court of Germany, for example, can only decide cases involving the German constitution (‘basic law’), and the United States Supreme Court can only decide cases involving either constitutional issues or the interpretation of ordinary federal (but not state) statutes, the Supreme Court of India can (i) interpret both state and federal laws; and (ii) decide both ordinary and constitutional cases. As a result, a host of proceedings in the Indian Supreme Court are what commentators would term ‘routine’ cases. It therefore makes sense to ensure that the judges deciding the ‘routine’ cases are able to turnover cases quickly, and that they do not spend their time hearing ‘important’ constitutional issues which are likely to consume time. Accordingly, a separate bench which exclusively dedicates its time to ‘important’ cases can create a healthy division of labor.



Third, the referral of 'important' cases to a larger bench also follows the two-heads-are-better-than-one rationale: the principle being that if it’s an ‘important’ case, then more judges should decide its outcome.



But in order to overrule a prior case, is it absolutely essential that the subsequent case be decided by a bench of greater strength than that in the prior case?



Assume for a moment that a bench of five judges unanimously (5-0) decides an issue in terms of Holding X. Now assume that a larger bench, say of seven judges, is constituted to consider the question of whether Holding X should be overruled. Ironically, if the seven judges decide by a fractured majority, i.e. 4-3, that Holding X should be overruled, then even though more judges had agreed in the previous case in favor of Holding X, the decision can still be overruled if four out of seven judges think so. Similarly, a 2-1 majority can overrule a unanimous two judge opinion, a 5-4 majority can overrule a unanimous seven judge opinion, and a 6-5 majority can overrule a unanimous 9 judge opinion, apparently on the strength of the fact that more judges had participated in the overruling case. Therefore, the constitution of a larger bench in such ‘overruling’ cases seems to make little sense unless the rule requires a litigant to procure a larger majority than the previous case to overrule the previous decision.



However, this practice is often said to be rooted in the need for certainty. It is often suggested that the reason a bench of larger strength should be constituted to decide such cases is that it should be harder to overrule previous cases. Stare decisis dictates that prior decisions should not be overruled frivolously. However, the experience of nations has shown us that the mere fact that the decision of a certain number of judges can be overruled by the same number of judges does not make it any easier to deviate from precedent. If anything, it would require justices to understand that they do not have the power to ride roughshod over prior cases, but that they must be more circumspect while overruling a prior case, and that they must at times defer to the wisdom of the prior majority.



Am I suggesting that a bench of three Supreme Court justices should be able to overrule a previous decision of five justices? Not necessarily – but I believe that the bench strength should not really matter. What I do believe is that it is superfluous to necessarily require the constitution of a larger bench in order to overrule a prior case (a bench of the same strength could as easily do the job).



Further, the general experience has been that the larger the bench, the more intricate the law – volumes have been written on Kesavananda Bharati, and TMA Pai had to be interpreted in Islamic Academy and PA Inamdar. Of course, we could also solve the problem of intricate law by requiring our courts to speak in one voice, much in the same way that it’s said to be done in France, but not permitting justices to write concurring or dissenting opinions seems to hit hard against the essence of our legal system. Smaller benches deciding ‘important’ cases may be a less drastic way to achieve the same result.



Remember that in 1964 the Allahabad High Court in Keshav Singh’s case convened and decided an issue en banc – a decision by all 28 judges! If, god forbid, the Supreme Court of India or another court decides a case en banc: will we have to increase the strength of a court to determine if a case should be overruled? Remember also that Justice Brennan had once famously said, “the only number that matters around here is 5” i.e. a majority.

Bipartisan and non-partisan appointments for democratic institutions

Whatever might be the implications for the individuals involved in the current controversy over the Election Commission, the CEC's second letter to the President raises a very important point. Under the current scheme of things under Article 324 of the Constitution, CECs and ECs are appointed by the President on the advice of the Prime Minister. We have come a long way from that idea. Almost every body of importance established in recent times (like the National Human Rights Commission, Central Vigilance Commission, Central Information Commission etc) has a bipartisan (or even non-partisan) appointment committee. Let the controversy bring out one good, in that the Constitution is amended to ensure appointments to the Election Commission are made by a committee comprising at least of the Prime Minister and the Leader of Opposition in the Lok Sabha.

On a related matter, this report says that the government is planning to establish a permanent regulatory committee (National Textbook Council) to examine school text books, to make sure they do not preach values against the spirit of the constitution. It appears to be a move to preempt another textbook controversy if the BJP comes to power after the next general election. The completely depoliticised composition of the Committee is rather interesting to note:

'The NTC will ... be headed by a retired judge of the Supreme Court nominated by the Chief Justice of India. It will have six member - officials picked from the Central Institute of Indian Languages (CIIL), IITs, reputed social science research institutes, and academics from the fields of languages, science and mathematics, social sciences and humanities. Two of the members will be women.'

The idea of an impartial regulatory watchdog making sure that our schools do not teach hate may be a useful one. However, we need to be wary of it becoming a body which kills imagination by overzealous censorship of all 'offensive' ideas.

The EC imbroglio: Two commentaries

Ramaswamy R. Iyer has a clear and compellingly written op-ed in today’s Indian Express where he seeks to take on some of the views that have been articulated about this continuing controversy. Iyer first argues that the current view about the EC being the first among equals – as set out in the governing Supreme Court ruling in the Seshan case – is indefensible from a textualist perspective:

That the CEC is only one among equals is a questionable view on at least two grounds. First, the fact that the Constitution does not mandate but only enables the appointment of election commissioners, and that we can have, and did have for many years, an election commission with only the CEC, clearly places the CEC on a different footing from the ECs. Secondly, the fact that the Constitution has given to the CEC the power of making a recommendation for the removal of an election commissioner implies a clear difference between the CEC and the ECs. It is not clear how in the face of that provision anyone can hold that the CEC and the ECs are equals. It could indeed be argued that the CEC and the ECs ought to be given exactly the same kind of protection against arbitrary removal, but that is not what the Constitution says; a constitutional amendment would be needed to bring that about.

Iyer then goes onto comment on other views expressed on the controversy:

The objection to a suo motu recommendation has no force. The Constitution merely says that an EC cannot be removed except on a recommendation by the CEC. It does not say that the CEC can make such a recommendation only on a reference from the government. That may be desirable, but there is no constitutional basis for such a view.

The argument that it was improper or in bad taste to make such a recommendation against a colleague is strange. It is precisely about a colleague that the CEC is constitutionally empowered to make that recommendation. It is indeed unfortunate that there should be dissension within the commission. However, it has been there for a long time. The CEC’s action is the outcome of the long-standing dissension and not the cause.

The controversy regarding Chawla is not a new one, nor is it entirely a Congress-BJP question. When Chawla was appointed EC, many in the country were dismayed. Some even wrote to the president of India on the subject. The BJP petitioned the Supreme Court, but withdrew its petition when the CEC submitted an affidavit that it was within his power to make a recommendation for the removal of an EC. That put the matter out of the court and on hold, and gradually it faded from public memory. The CEC’s present action is merely the delayed outcome of that old story.”

…Unfortunate as the timing may be, it does not follow that having examined the matter, the CEC should refrain from acting on his findings. The rightness of that recommendation can be judged only when we know the grounds on which it is based.

Iyer’s analysis fits well with the view expressed by another former civil servant when this controversy surfaced earlier. Writing in the Indian Express in September 2007, R.C. Iyer, a former Chief Electoral Officer of Maharashtra, set the controversy in historical context by describing the evolution of a multi-member commission since 1989. Some of those facts need to be borne in mind while assessing the current controversy. R.C. Iyer’s op-ed also draws attention to previous such controversies, under previously constituted versions of the Election Commission.

The Law Minister’s reported reactions to the controversy do not inspire confidence that the issues involved will be dealt with in a strictly constitutional, non-partisan manner. Sadly, this is not a new phenomenon, as is alluded to by both commentators above. Every government – regardless of which political party is in power - finds it tempting to massage appointments to crucial institutions like the Election Commission to its own political advantage. (In the United States, this typically happens with appointments to the federal judiciary, and there is already speculation about the kind of appointments that the Obama administration will make to reverse the effects of the Bush appointees, and consolidate the Obama administration's policies).

Controversies like this emphasise the importance of taking such political realities into account while structuring institutional processes for the appointment and removal of crucial constitutional functionaries. An injection of pragmatic considerations might well be needed in our current times, where relying solely on the integrity and neurtrality of decision-makers seems naive.The Election Commission has functioned for two decades as a multi-member Commission – perhaps it is time to consider whether the parent constitutional provision needs to be changed to reflect this reality, and respond to the problems that accompany such awareness.

In contemporary India, the Election Commission is clearly one of the most significant public institutions. If so much attention has been focused in the past few decades on the idea that our judicial institutions should enjoy real independence from the other wings of government, surely the EC - which plays a significant role in shaping the contours of our democracy - merits at least some attention in this behalf?

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.

Nilekani's sobering analysis of the Mumbai attacks

Now that the attacks are officially over, the analysis will begin. Today’s papers – from across the globe – carry several pieces that offer commentary on the tragic events in Mumbai, many of which give voice to the anguish, hopelessness and frustration experienced by many Indians. Of those offered so far, I was struck in particular by the views of Nandan Nilekani. Channeling Rudyard Kipling’s “If” in the title of his op-ed in today’s Indian Express, Nilekani’s call for calm is particularly insightful and timely. His powerful reflections reveal a close understanding of the legal measures invoked against terrorism in India historically, as well as comparatively across the globe in the aftermath of 9/11. Here are some extracts:

In the past seventy-two hours, we witnessed an event that has transformed the psyche of a nation. Since the bomb blasts that ripped through our cities and towns three months ago, there have been familiar remarks of how stoic our urban citizens are — echoes of comments Mumbaikars received after the train explosions in July 2006 and the bomb blasts in 1993. Again this time, as the day waned and the situation began to stabilise, there were comments on our ability to move past disaster, and how people would simply pick up the pieces and move on. But these statements have a hollow feel — we have been struck so many times that one must eventually wonder if what we see in the aftermath is stoicism or helplessness. But the actions governments take during times of fear are often not ideal ones. Indian politicians have, since the blasts in July, mostly debated bringing back draconian laws resembling the repealed POTA and TADA. The BJP leader Venkaiah Naidu noted that “an extraordinary situation needs an extraordinary law”; an opinion that the UPA government has come around to holding themselves. This recent attack will likely speed the passage of such a law.

We’ve seen the impact such laws can have in the US and Britain, following the 9/11 attacks and the Iraq war. Massive powers of detention and interrogation cast the net too far and wide — what you end up with is a disproportionate amount of false positives and captured innocents, which muddies the efforts against terrorism. The record of POTA and TADA in India has been dismal — they have been used to target particular communities, and as tools for revenge. The violations of human rights that result are unacceptable. These laws become all the more dangerous when we consider the terrorists who led the recent bombings. These were not easily identifiable men. They looked like us — like any of the millions of young men in our cities, dressed in jeans and T-shirts, yuppie-like down to their hair-cuts and their glasses. And such laws make democracies less so, and by hurting innocent civilians, serve as powerful recruiting tools for terrorists.

There is no question that we face dangerous times. Governments are going to react in ways that demonstrate concrete action and strict enforcement to the public. Our impulses will be to strike back with force, and with draconian measures. But our weaknesses unfortunately, lie not in the lack of a terrorism law, but within the core of our institutions — our police forces, the effectiveness of our intelligence agencies, the surveillance work we carry out. Since the 1970s, all these once reputable institutions have become deeply politicised, to the point that they have not been allowed to work without interference. Today, the frozen systems of our judiciary ensure that nearly half a million people are languishing in our jails without trials. Our cities are weak and ineffectual, unable to deal with any crisis. A weakening economy can also add to the militancy — the lack of broad-based reforms is increasing the pool of unemployed, angry young people. The sense of unfairness and alienation among them is waiting to be exploited by divisive politicians. Unfortunately given our talent for workarounds, these are issues that governments will shy away from. But without facing these challenges boldly, the prevention of Terror attacks will be elusive, and we will continue to be vulnerable.

Calm — that emotion that seems so distant and unnecessary in such moments of crisis, will be critical to get us through this crisis. And the danger of thoughtless retaliation comes not just from our governments, but also from our citizens. Our country has large numbers of minority religious communities, and there will be enough demagogues eager to whip up anger against convenient targets. We can choose, at this critical moment, to let divides like religion dominate and frighten us, sidelining our real issues. Or we can adopt fundamental reforms and policy ideas to win the battle against militants. Terrorism is fundamentally about igniting terror — about overwhelming us with fear. We have to resist this fear rather than be subjugated by it.

Nilekani’s call for calm and peace has, of course, been proffered and reiterated by several of our more responsible leaders. We can only hope that they will be heeded in the aftermath of this traumatic event.

Editorial Analysis of former Chief Election Commissioner’s induction into the Union Cabinet

Today’s Indian Express has an editorial that is sharply critical of this action. Here is how the Express sees the issue:

Constitutional authorities like the Election Commission and the Comptroller and Auditor General perform a vital oversight duty in our democracy, and it is crucial that those in charge of them stay delinked from the political process in order to avoid any suspicion of slant or bias. Without casting any aspersions on Gill, we worry about the precedent set by the UPA four years after the Congress brought him into the Rajya Sabha. As India moves from an interventionist state to a regulatory one, we have turned our faith towards a reformist judiciary, presidency and the EC. Even as confidence in the cabinet and Parliament eroded, the EC has enjoyed immense public credibility, with its constitutionally guaranteed independence and its pivotal role in our democracy. In fact, it is the public perception of the EC’s impartiality that has enhanced the legislature’s credibility.

Against such a background, the Express editorial raises the following question:

How can we believe that bodies like the EC will remain fiercely independent if those in charge of them can go on to join the very fray they are meant to oversee?

Reading this editorial, I was reminded of similar concerns raised when former members of the higher judiciary enter the political fray, an issue that was alluded to in the comments section of this recent post.

Interestingly enough, this is the precise connection that Harish Khare draws in his column in today’s Hindu, where his principal focus is also on MS Gill’s induction into the Union Cabinet. After expressing concerns similar to those outlined in the Express editorial above, Khare asserts:

Understandably, the post-retirement behaviour of constitutional functionaries has increasingly come under close scrutiny. It is rather elementary. A government — and that means the ruling party of the day — can easily suborn a constitutional functionary by dangling the carrot of a post-retirement “accommodation.” In some cases, the expectation is written in stone. For instance, the Constitution specifically proscribes in Article 148(4) the Comptroller and Auditor-General of India from accepting any office under the Government of India or a State government “after he has ceased to hold his office.”

A somewhat similar principle is invoked in the case of the higher judiciary. Article 124(7) says Supreme Court judges, after retirement, shall not “plead or act in any court or before any authority within the territory of India.” As the judiciary has asserted itself aggressively against a weak executive and a stalemated legislature, democratic opinion has come to expect that once they leave the bench the judges would be able to resist the temptations any executive can offer. Conventions about post-retirement judicial behaviour are far from settled. A former Chief Justice, J.S. Verma, has asked for a debate on the post-bench activities of the judges.

Khare’s solution to this issue is set out in the final part of his column:

Constitutional functionaries are like monks, making lifelong commitments of moral virtue and personal self-negation. Those who seek to serve the nation in high positions owe it to themselves — as also to the democratic expectation — to remain above the fray. Surely, there must be many ways of contributing to and enriching public life without cutting a deal with a political operative. At stake are the reputation, credibility and popular acceptability of these very institutions.

Khare’s proscription has the advantage of being clear and straightforward. Yet, I remain unsure whether it is necessarily the most pragmatic measure at a time when our judiciary is struggling to attract the best legal talent to the bench. What is required, perhaps, is creative thinking on what Khare calls the “many ways of contributing to and enriching public life without cutting a deal with a political operative.” I wonder what others might have to say in response to Khare's views on this issue.

Redrawing Constituencies: The Basics, and the Implications of recent legislation

M.R. Madhavan, the Head of Research at PRS Legislative Research, has an insightful column in today’s Indian Express where he explains the history of the practice of delimitation of constituencies in India, while also providing basic facts and explanations about the policy dilemmas involved. His piece is written against the backdrop of recent legislative efforts in this respect, and Madhavan also explains details of the process that is now afoot.

He describes a significant implication of the current process as follows:

The number of seats in each state remains unchanged. An important implication is that the Hindi heartland would be under-represented in Parliament to the benefit of the southern states. That is, the 11 Hindi speaking states and Union territories would have 18 seats less than their population share, while the 6 southern states/UTs will have 12 more than theirs. The next delimitation will not be carried out before 2026. Given the continued divergence in population growth, the under-representation of Hindi states would increase to 37 seats and over-representation of the south to 26 seats by 2026. In the next election, Uttar Pradesh alone would have a deficit of 8 seats, which would widen to 16 seats by 2026.

In the remaining part of the article, he analyses the issues that arise as a result of this decision. The implications seem staggering even to those (like me) who are probably getting exposed to this area of the law for the first time. For some inexplicable reason, despite the importance of elections in India, analysis of electoral laws has not received the prominence in constitutional law that it deserves. In other constitutional democracies, this area of the law garners prominent attention among constitutional scholars. Perhaps the legal community in India would do well to go beyond focusing on the more dramatic aspects of election law (issues arising out of Article 356, the provisions of the Representation of People’s Act that gained prominence in the Hindutva cases, etc).

SC as an institution of constitutional governance - Harish Salve's lecture at Oxford

I am reporting former Solicitor General, Harish Salve's talk at Exeter College, University of Oxford on 12th March 2008. It was a fascinating intervention on the debate on the 'activism' of the Indian Supreme Court. His argument followed three broad trajectories:

1. Why the Indian Supreme Court was imagined as a unique institution that was not supposed to conform to the traditional separation of powers paradigm but rather become an institution of constitutional governance (and how it has mostly lived up to these expectations).
2. Why some of the claims regarding 'activism' of the Court are misguided.
3. Why, the two points above notwithstanding, there are reasons for legitimate worry on the question of judicial activism.

I will elaborate each of these points below.

An institution of constitutional governance:
To understand the Indian SC, Mr. Salve says, one has to understand India in its unique diversity and deep contradictions. The constitutional makers obviously shared with all constitution makers worries about the imperfections of any democratic model. However, Indian contradictions on the lines of caste, religion, class and regions meant that shifting and unstable political majorities (not merely parliamentary majorities of the governments of the day but also political majorities forged by various social groups) were inevitable. He cited the shift of the balance of power from the central to state level post nineties as one example that vindicates this suspicion. This inherent instability in our political system was sought to be balanced by envisaging a Supreme Court that played by some basic (and unchanging) rules not merely as an adjudicator of disputes between these political groups but as an instrument of governance itself. Thus, the Indian Supreme Court could not have followed the traditional model of separation of powers.

Evidence of this idea is rooted in Article 32 of the Constitution which makes the right to judicial remedies the 'heart and soul of the Constitution' (in the words of Dr. Ambedkar). The SC extended this idea in evolving the basic structure doctrine, public interest litigation, reading socio-economic rights and due process in Article 21 etc.

Not so 'activist' after all:
Whereas the above-mentioned judicial developments were unusual for constitutional courts and may be called 'activist', certain other actions of the SC are not so (contrary to popular belief). Here he takes particular issue with Prof. Rosencranz's criticisms and defends the SC's decisions in the Delhi CNG buses case and the Forests Case.

CNG buses - Mr. Salve claims that the SC did not order the Delhi buses to convert to using CNG (compressed natural gas) instead of diesel. He explained the legal reasoning of the case thus: The Environment Protection Act (EPA) empowers the government to protect the environment, which the SC held to imply a duty to protect the environment as well (after all, the Fundamental Duties chapter of the constitution imposes such duty on all citizens). Where a statutory duty is violated, a mandamus lies. The SC directed the government to set up an experts committee that the govt. was empowered (obliged?) to set up under the EPA.

The committee was set up and notified by the government. It met all stakeholders and recommended a switch to CNG. The SC told the government that under the EPA, the recommendation of the committee was binding on the government and asked the government to comply.

The bottomline is that policy was not decided by the court but by the Executive. The Court only forced the Executive to take a decision and then to implement it.

The second case Mr. Salve explained in detail was the Forests case. The Forests Policy of 1980 required central approval for diversion of any forest land for non-forest use, but did not define 'forest'. The only statutory definitions available were in colonial revenue laws which viewed forests as exploitable properties of the local ruler, and thus narrowly defined. The SC held that for the purposes of protection of forests, such definitions were inadequate and used the dictionary meaning instead. All the Court did was to insist on strict implementation of the policy by adding teeth to it. He dealt with several nuances of the case, including the composition of the Forest Advisory Committee, the cut-off date of 1980 to determine 'encroachers' etc to elucidate his point.

These cases, Mr. Salve said, illustrate that the SC has mostly been only insisting on holding the Executive to account to the legislative mandate or its own policies, while disallowing extraneous considerations to affect decisions - this is a classic judicial review function.

Worry:
Mr. Salve said that there are reasons to worry about the current state of affairs. The governmentality of the SC has evolved such that the Executive of the day is more than happy to transfer all controversial issues to the Court (cites the latest affidavit in the Sethusamudram issue as an example). This is coupled with an enormous and ever-increasing burden of public expectations from the Court and decreasing public faith in the legislature and the executive. This disprportionate burden of public expectations is reflected not in the PILs that are admitted by the SC but the hundreds of deserving PILs that are rejected because the judiciary just cannot keep up. On the chicken-and-egg question of whether judicial activism led to executive lethargy or vice versa, Mr. Salve emphatically rejected the former.

The system is strained and if unchecked, may collapse because the SC will find it increasingly difficult to live up to these expectations. The only remedy lies in the revival of the legislature and the executive branches as trusworthy organs of government that can deliver.

In response to a question, Mr. Salve said that the next logical step in constitutional adjudication in India will be to develop a hightened standard of scrutiny in fundamental rights cases (which will probably be settled by the decision in the Mandal II case where he argued for strict scrutiny).

In response to another question, he said that the Court's demand of an apology from a journalist who managed to get arrest warrants against the President of India and CJI from a local court in a sting operation was deeply troubling.

He also agreed that the current system of judicial appointments needs to change.

(I have tried to report as faithfully as possible, but if anyone present at the talk can point out any error, I will happily correct it).