How should liberals respond to terrorism?

Jaipur, Ahmedabad, Bangalore and now Delhi. There seems to be no let up in terrorist violence this year. How should liberals react to the deplorable violence perpetrated by terrorists, in the midst of a clamour for more 'stringent laws'? If the history of anti-terror legislations in India is anything to go by, this stringency will reflect in POTA/TADA-like laws liberals tend to dislike - reverse onus clauses which presume guilt rather than innocence, death penalty, admissible confessions to police officers, privacy violating surveillance. And yet, terrorism itself violates the core liberal value of respect for the individual person.

Pratap Bhanu Mehta, in this interesting article published by the Indian Express yesterday, identifies the following politico-legal solutions:

"So many obvious things to be done, creating cross-party structures to evolve a shared understanding of the problem, better coordination between the Centre and the states, legal reform, more imaginative forms of engagement with different communities to enlist their proactive help in defusing this phenomenon."

Some of these responses may be more effective than the idea that that even more stringent punishments will deter terrorists. Disappointingly, Mehta does not elaborate upon 'legal reform', but it is doubtful that this is a call for a law like POTA (his dislike for POTA was discussed on this blog three years ago in the aftermath of a previous terrorist attack on Delhi! Unfortunately Mehta's older piece linked in that post is not accessible and I couldn't find it on google either.)

In fact, yesterday's article discusses legal responses only marginally. Mehta speaks primarily to the terrorists:

"But what sort of a jihad is this, characterised by rank cowardice and bereft of even the diabolical martyrdom that usually characterises such visions? There is the appeal to a fight for justice. But what sort of conviction is this in the justice of one’s cause that it can be articulated only anonymously, and can speak only the language of bloody revenge? Then there is the narrative of victimisation: portrayals of a community at the receiving end in assorted episodes from Babari Masjid to Gujarat. But this narrative of victimisation seems to become simply a pretext. It has its own self-fulfilling logic, so that everything that happens is simply more grist for the victimhood mill. Every political party, every state organ, every media intervention is portrayed as one vast conspiracy to reduce Muslims to victimhood, as if there are no spaces left to address legitimate grievances. There is something of a subterfuge by which these groups contrive to create an impression that they are nothing but voices of the oppressed. If this is a battle on behalf of Muslims, what sort of a battle is this? For if nothing else, these acts make life more, not less difficult for Indian Muslims."

The important point to note above is the unequivocal rejection of the apologist position sometimes adopted in sections of the Left - one that identifies 'a deeper malaise' as the cause of terrorism. Mehta, of course, accepts 'a deeper malaise' but is clear that it is neither an explanation nor a justification of terrorism. Note, in the following quote, that he identifies the sense of (real or perceived) 'victimisation' in all communities, implying that the solution cannot be community specific. He poses his question to the state thus:

"The disquieting challenge is going to be this. While there may be widespread revulsion against terrorism, what will be the form of politics that will overcome the sense of victimisation that is now creeping in on all communities? How will we break the vicious circle the Indian Mujahedeen have identified: that any action taken by the state, investigation or punishment will be taken as further evidence of victimisation? Can the state overcome the accusations from all sides that it is partisan in the prosecution of its core duties? It may turn out that our biggest vulnerability is not communalism; it is a state structure now floundering for credibility, legitimacy and effectiveness."

He goes on to commend the frustration of the main goal of recent terrorist attacks - to spark a backlash:

"The silver lining is that so far the backlash this dare intends to provoke has not occurred. It is clear that these groups do not appear to have an interest in justice; they have an interest in polarisation. In so far as this polarisation does not become visible, at least something of a resistance to terrorism is being offered."

Finally, Mehta laments that 'No state has more experience of handling terrorism than India, yet there seems to have been no institutional learning, reorganisation or innovation in dealing with it.'

I think it is a very well-written article, but it left the lawyer in me dissatisfied (it seems that his inaccessible older article on terrorism addressed some of the issues I am about to raise). I know I don't want the return of POTA. I believe that majority and minority intolerance feed on each other and every jihadi terrorist attack strengthens the Hindu Right (and vice versa) - so, I desperately want this government to 'do something'. But mere appearances will not be enough. I want the state to do everything it can to prevent terrorist attacks and prosecute the perpetrators, without violating civil liberties. How does one achieve all of these goals? Can intelligence agencies be restructured to be more effective? Can the problem of centre-state co-ordination be solved by institutional reforms? How does one protect a community from harrassment and innocent individuals from becoming scapegoats when a case is 'cracked'? Does a solution really lie in addressing the 'deeper malaise' through fairness-enhancing measures like anti-discrimination laws? Then, what does one do in the short term, if anything? Are POTA-like laws even effective against terrorism, or are they just for keeping up appearances? Has there been any criminological study to examine this?

Perhaps terrorism needs a political and societal response rather than a legal one, and a belief that laws (stringent or otherwise) will solve the problem itself is misplaced. But even then, what shape should a political response take? How can a non-partisan understanding on terrorism come about? What is the role of political leadership in the immediate aftermath of a terrorist attack? I hope the Prime Minister is asking himself similar questions.

Random thoughts on Defending the Indefensible

Today's Hindu carries an op-ed by Vishnu V. Shankar on the subject mentioned in the title. Here is how he begins:

What connects Captain Preston, Kehar Singh, Saddam Hussein, Manu Sharma, and Salim Hamdan? Besides being among our community’s most reviled individuals (many of them at least), they were defended by some of the most conscientious lawyers of their time. Unsurprisingly the legal profession’s time-honoured commitment to defend the most reviled of defendants has never been free from criticism, even in societies committed to the rule of law such as India and the United States. In November 2006, Ram Jethmalani, one of India’s most respected criminal lawyers, was attacked on television and in the press for defending Manu Sharma, the prime accused in the Jessica Lall murder case. In January 2007, Charles Stimson, a senior Bush administration official responsible for the Guantanamo detainees, called for a boycott of the law firms who were pro bono representing the detainees. A year has passed since these events and since the Supreme Court is to shortly decide Mr. Sharma’s appeal against his conviction, it is about time to re-evaluate the issue.

The author - who for a short while was a contributor to this blog, though he went under a different name then – goes on to argue exactly why such “reviled individuals” are entitled to a full and vigorous defence, and lists some of the classic justifications offered by liberal constitutionalists.

The article reminded me of another, more famous case argued by Ram Jethmalani to which Shankar makes a brief reference at the beginning of his piece: the Kehar Singh case. I have to say that I found his inclusion among the group of “most reviled individuals” identified by Shankar a bit puzzling, and I hope it is to Kehar Singh that Shankar's caveat (“many of them at least”) is directed. I’ve always thought that the handling of the Kehar Singh case was one of the low-points in the history of the Indian Supreme Court, and the weak reasoning which it advanced to sentence Kehar Singh to death shows up all the problems of allowing capital punishment to exist in our criminal justice system. The case had all the elements of a ‘hard case’ – a high profile assassination of a once popular Prime Minister, the visceral nature of the events involved, and the need for the legal system to be seen as delivering a ‘result’ so as to assuage the emotions of the public. The legal case against Kehar Singh was weak and circumstantial – this is clearly demonstrable by a reading of the charges and evidence against him as listed out in the Supreme Court’s judgment in the case against the conspirators to the assasination. Reading this case as a law student was a deeply affecting experience, and I believe this eventually led to my own opposition to the death penalty.

The saving grace of this sorry episode was the fact that a lawyer of the calibre of Ram Jethmalani stepped forward to defend Kehar Singh. Jethmalani was unable to stave off the inevitable, but he did demonstrate how weak the legal basis of the case against Kehar Singh was, thereby exposing the real motivations for the hanging of Kehar Singh. Jethmalani is a colourful and controversial figure among lawyers and the Indian populace at large, but no one can doubt that he has done his bit to both shake up and hold a mirror to our legal system. Here is a link to a recent biography on Jethmalani – not having read it, I can only hope that it provides some insight into the storied legal career of the man.

On a different note, but sticking to the subject of defending the indefensible, here is a link to a recent Hindu editorial reiterating (and defending) the CPM's criticism of Governor Gopal Gandhi’s “actions” on the Nandigram episode (link via Nanopolitan). Here, in overly pompous terms, is the stance of the editorial team at the Hindu:

The role of Governor Gopalkrishna Gandhi has, for a second time, come under the spotlight. In March 2007, he clearly stepped out of line in publicly airing his philosophical and tactical differences with the State government over Nandigram. He does not seem to have learnt any lessons from that experience and, in fact, his latest speaking out of line has had the effect of adding fuel to the flames. Let us concede that Nandigram represented a situation where the moral urge not to remain silent came into conflict with the restraints imposed by the constitutional office. Yet, of the restraints imposed by the office, there would seem to be little doubt, and a public statement critical of the government’s handling of the issue could not have been made without transgressing them. The Hindu has consistently regarded this as a major question of principle in the constitutional realm. (Emphasis added).

At this stage, the editorial cites a passage from the colonial-era precedent of Walter Bagehot’s classic text, The English Constitution (1867). Note, however, that no explanation is provided for why this dictum is still relevant in our contemporary constitutional democracy. Recall that our nation now differs from England in that it is not Parliament, but the Constitution itself, which is supreme in India. Here is the rest of the argument:

The right to advise and the right to warn are to be exercised in private and in confidence, and not through public statements. This restraint required of the head of state is not a mere constitutional formality but is based on sound democratic principles. In the first place, the head of state must not, through statements critical of its functioning, place himself or herself in conflict with the representative government, which has a greater democratic legitimacy. Secondly, the head of state should appear non-partisan and remain above the fray when controversial and divisive questions are being debated in the political sphere, and avoid any public statements that could give comfort to one side or the other. The Governor’s public statements on Nandigram both challenged the wisdom of the government’s approach and came down on the side of the critics of its action. Further, Mr. Gandhi laid himself open to the charge of remaining silent when the supporters of the Left Front were at the receiving end. His conduct through this crisis has been constitutionally indefensible. (Emphasis added).

I am not sure where the Hindu editorial team gets its legal advice from, but I am intrigued by the categorical nature of this claim. I haven’t done any research on this, but it would be interesting to see what advice the Hindu editorial team had for our head of state during the Gujarat crisis, or during other similar crises where there were potential threats to life on a large scale. Many people have strongly argued for Governors and Presidents to adopt pro-active roles during times when human lives are at stake. What is more, some constitutional scholars have argued that the text of the Indian Constitution vests real (and not titular) powers in the heads of state at the Central and State levels (i.e. in the President and the Governors) which empower them to take pro-active action in precisely such situations to uphold constitutionally entrenched values. So, the Hindu's claim that Governor Gandhi's actions were "constitutionally indefensible" is highly contestable, and probably unsustainable on a textual reading of the relevant constitutional provisions.

Leaving aside the constitutional argument, it stands to reason that at times such as these, it is not political considerations, but those of basic humanity which must dictate the course of actions.Whatever be the nature of one’s political leanings, it is hard to deny that the Nandigram episode raised serious law and order concerns. Interestingly, Soli Sorabjee, who as Attorney General would have actual experience with such situations, had this to say about stances similar to that adopted by the Hindu:

Much has been written about Nandigram and the blame game is in full swing. Indisputably, there is prima facie evidence of excesses by CPM cadres. In that case, one would have expected a liberal, sensitive chief minister like Buddhadeb Bhattacharjee to acknowledge the lapses and reiterate his government’s resolve to remedy the situation in a spirit of constructive dialogue rather than ‘paying back his opponents in their coin’. Regrettably, any criticism of the West Bengal government’s handling of the Nandigram imbroglio is regarded as hostile and biased. And none is spared, including Governor Gopal Gandhi, a person with impeccable credentials, the chairperson of the National Human Rights Commission, former Chief Justice of India Rajendra Babu, and the Calcutta High Court.

When the Supreme Court transferred the riot cases from Gujarat to Maharashtra and issued other directions to ensure that there was effective prosecution of the guilty, there was no cry of judicial hyper-activism and the judiciary was rightly commended by CPM leaders. Its present tirade against the Calcutta High Court on the ground of judicial over-reach is utterly unjustified.

I have long been a faithful reader of the Hindu. Of late, my loyalty has wavered because I believe it no longer has regular columnists who provide interesting and insightful commentary on the important issues of the day. (There are exceptions, as is demonstrated by the fact that contributors to this blog continue to provide links to and discuss some such pieces, but those who remain are far fewer and less regular than in the past). Moreover, most of the Hindu’s op-eds seem to focus more on international affairs (especially domestic politics in the UK), while ignoring commentary on pressing domestic issues within the country. The Hindu's partisan stance on Nandigram may well turn out to be the last straw for those whose commitment to this venerable institution is already floundering.

Focus on Nandigram

Events in Nandigram and Kolkata over the past year (and especially the last fortnight) reveal much about conflicting conceptions about the rule of law and governance in contemporary India. It is impossible to provide the full context for the many issues that are at the heart of discussing Nandigram within a short post. I can only provide some links to enable those unfamiliar with the issue to get started: here is a Wikipedia entry which provides the context for the current violence, tracing events back to the flashpoint of March 2007. Here is an NDTV newsreport which details the violent ‘recapture’ of Nandigram by the CPI-M in mid-November 2007. Further information about Nandigram can be found at the websites of alternative media outfits here and here. Though some of us on the blog had previously focused on the issue for what it revealed about the contentious SEZ policy, it has taken on far wider implications since.

The ruling CPM party in West Bengal clearly believes that Nandigram is an issue over which it has the final say, and upon which other institutions of governance have no standing to comment. In recent days, the CPM was reported to have asked Parliament to stay away from the issue because it is a 'state subject'. Here is a newsreport from this morning’s Telegraph which reflects this stance in respect of institutions within West Bengal – specifically, the High Court of Kolkata and the office of the Governor. I am struck by the fact that this line of reasoning is quite similar to that employed by General Musharraf recently to fend off attacks by the courts and other political parties on his administration. This may, however, be a knee-jerk reaction, and the issue seems far more complicated, involving as it does a multitude of interests and competing agendas of political parties, corporate groups, the media in India, constitutional authorities, economic policy-makers and other actors.

This post is not making an argument as much as pointing to analysis offered by others that seek to unpack the issues involved. I rely principally on two columns that appeared recently in the pages of the Hindustan Times by regular columnists Barkha Dutt and Vir Sanghvi. Here are extracts from Dutt’s piece:

This time the violence has unfolded behind a veil of intrigue and secrecy. Unlike in March, when an entire country watched horrified as police guns pummelled unarmed villagers with bullets and bulldozed their way through Nandigram, this week Marxist foot soldiers made sure that blockades and threats and the stealth of the night would keep them protected from public gaze. But, as horror stories managed to break through the shroud of silence — bone chilling stories of rape, plunder and murder — the West Bengal Chief Minister gave away the game himself. With the transparent aggression that marks a man with a guilty conscience, he flared up in rare anger and told journalists that the protestors in Nandigram been “paid back in their own coin.”

And so, just like that, the mask was off.

There wasn’t even a feeble attempt to deny that CPM cadres had been permitted by the party to storm their way back into Nandigram. If they had to shoot, kill and rape to make their way back in, so be it. No explanations were provided for why central paramilitary forces were sent in only after the Left’s militia was firmly back at home base. No apologies were offered for why a state government in democratic India should need to wage an extra-constitutional war. Other than contempt and criticism, there was no response at all to the high-minded public lament by Governor Gopalkrishna Gandhi. As far as the Chief Minister was concerned his party’s private army had “retaliated in desperation”.

Twenty fours later, after a storm of protests over his remarks, Buddhadeb Bhattacharjee had another opportunity to take back his words, or make a retraction that is standard for politicians. He didn’t bother. Instead, he took it all one step further by declaring that he stood by his comments because he could not forget his “political identity” and he was “not above the party”.

But what happened to not being above the law?

… … … After two eruptions of political violence in Nandigram, the dispute has gone much beyond a debate over economic reform. The controversy is no longer confined to whether an Indonesian chemical plant should have been allowed to come up in villages that don’t want it. It’s now only about one thing — the abject failure of governance. And to borrow a phrase from the Left, the state government will eventually be paid back in its own coin.

Vir Sanghvi offers a different perspective, where he rejects the bulk of Dutt’s analysis. For him, this is not an issue about the rule of law or governance, but one that demonstrates to him the essential nature of the CPM. His piece is strongly polemical, and I for one was not entirely persuaded. However, his piece is useful for the facts he asserts to build his argument:

If it was the state that had to impose the rule of law, then why didn’t the West Bengal government send in the police? Instead, it was armed CPM cadres who went into Nandigram and fought pitched battles with the extremists, killing and raping villagers in the process while simultaneously assaulting the media to prevent their violent acts from being recorded.

All this was because the CPM, in the manner of all communist parties, sees no distinction between the party and the state, between the cadres and the police and between the enemies of the party and the enemies of the nation.

Anybody who thinks that the true lesson of Nandigram is about the poor man’s right to hold on to his land or to the imposition of the rule of law on extremists misses the point. The debate about acquisition is an old one and there can be no dispute over the need to fight extremism.

The lesson of Nandigram is not about any of those things. It is about the true nature of the CPM, a totalitarian party that does not recognise the difference between the rule of law and the rule of the Politburo. If Buddhadeb Bhattacharjee had used the instruments of the state to regain control of Nandigram, many of us would have supported him.

Beneath the extremely rancorous debate, there are genuine issues that those with an interest in our legal system should be concerned about. I hope that some of us on the blog will be able to both comment upon, and follow this issue closely. As this report indicates, the issue is scheduled to be raised in Parliament tomorrow.

Frank Rich does a Harish Khare

I have been struck by how closely the global media is tracking the developing story in Pakistan, and how so many commentators in different parts of the world believe that events in that nation have ramifications far beyond its borders. These events also appear to be causing thoughtful journalists in many constitutional democracies around the globe to take a long hard look at the state of their domestic politics.

In a recent post, we saw how Harish Khare used recent events in Pakistan as a hook to issue some harsh judgments about Indian democracy. More recently, Frank Rich of the New York Times has done the same for U.S. democracy. In an op-ed that appeared in the Nov 11 issue of the New York Times, Rich has much scorn to pour over some recent decisions - and political trends - within the U.S. Here are some extracts from his piece:

“[T]he coup in Pakistan has been almost universally condemned as the climactic death knell for Bush foreign policy, the epitome of White House hypocrisy and incompetence. But that’s not exactly news. It’s been apparent for years that America was suicidal to go to war in Iraq, a country with no tie to 9/11 and no weapons of mass destruction, while showering billions of dollars on Pakistan, where terrorists and nuclear weapons proliferate under the protection of a con man who serves as a host to Osama bin Laden.

… … The Pakistan mess, as The New York Times editorial page aptly named it, is not just another blot on our image abroad and another instance of our mismanagement of the war on Al Qaeda and the Taliban. It also casts a harsh light on the mess we have at home in America, a stain that will not be so easily eradicated.

In the six years of compromising our principles since 9/11, our democracy has so steadily been defined down that it now can resemble the supposedly aspiring democracies we’ve propped up in places like Islamabad. Time has taken its toll. We’ve become inured to democracy-lite. That’s why a Mukasey can be elevated to power with bipartisan support and we barely shrug.

This is a signal difference from the Vietnam era, and not necessarily for the better. During that unpopular war, disaffected Americans took to the streets and sometimes broke laws in an angry assault on American governmental institutions. The Bush years have brought an even more effective assault on those institutions from within. While the public has not erupted in riots, the executive branch has subverted the rule of law in often secretive increments. The results amount to a quiet coup, ultimately more insidious than a blatant putsch like General Musharraf’s.

… … … Even if Mr. Bush had the guts to condemn General Musharraf, there is no longer any moral high ground left for him to stand on. Quite the contrary. Rather than set a democratic example, our president has instead served as a model of unconstitutional behavior, eagerly emulated by his Pakistani acolyte.

… … … Tipping his hat in appreciation of Mr. Bush’s example, General Musharraf justified his dismantling of Pakistan’s Supreme Court with language mimicking the president’s diatribes against activist judges. The Pakistani leader further echoed Mr. Bush by expressing a kinship with Abraham Lincoln, citing Lincoln’s Civil War suspension of a prisoner’s fundamental legal right to a hearing in court, habeas corpus, as a precedent for his own excesses. (That’s like praising F.D.R. for setting up internment camps.) Actually, the Bush administration has outdone both Lincoln and Musharraf on this score: Last January, Mr. Gonzales testified before Congress that “there is no express grant of habeas in the Constitution.”

To believe that this corruption will simply evaporate when the Bush presidency is done is to underestimate the permanent erosion inflicted over the past six years. What was once shocking and unacceptable in America has now been internalized as the new normal.”

In the remainder of the piece, Rich offers some deeply pessimistic views about the current - and future - state of democratic politics in the U.S. I am not sure whether these will draw as much support as some of the views extracted above. However, his piece, like that of Khare, reminds us that the achievements of liberal constitutional democracy are not something to be taken for granted, or indeed always something to crow about. Both Rich and Khare also note the classic weaknesses of liberal constitutionalism - that it is prone to being misguided by populism, and that it relies too much on the hope that the sense of outrage of the masses will result in corrective action (which, in some cases, results in overly delayed and tame responses).

In a blog post reacting to Rich's piece, American constitutional scholar Sanford Levinson argues that Rich, like other commentators, fails to ask the more fundamental question : whether there is anything wrong with the design and structure of the U.S. Constitution which enables such actions to be undertaken by the representative wings of government. (To get a sense of what those changes should be, browse through the archive of posts authored by Levinson and other U.S. constitutional scholars at Balkinization over the past few months).

Reading Levinson's post made me reflect upon the fact that despite Khare's deeply critical comments about the state of Indian politics, he too does not question whether any fundamental changes in the Constitution of India are called for to remedy the problems he identifies. My own interest is in the constitutional provisions relating to emergency powers, and I hope to post about that in the near future.

Andhyarujina on recent events in Pakistan

In a previous post, Vikram drew our attention to recent events in Pakistan, and invited comparisons to debates about judicial activism in India. Even the most bitter critic of judicial activism (in India or anywhere else for that matter) would not wish for the turn that events in Pakistan have taken over the past week. Today's Indian Express carries a piece by the noted constitutional lawyer, T.R. Andhyarujina, who has in the past been highly critical of judicial activism in India, especially in PIL cases. (See, for instance, his 1992 book which remains a classic work that even supporters of PIL and judicial activism regard as making valid criticisms). In this piece, Andhyarujina analyses recent events in Pakistan, places them against the backdrop of the history of the judiciary in Pakistan, and also draws lessons for nations beyond Pakistan. While the whole piece is an interesting read, here are some extracts:

The emergency declared by Pervez Musharraf in Pakistan must be the strangest emergency ever declared in the catalogue of such emergencies by authoritarian rulers. For the first time an emergency has been declared because an activist judiciary is accused of having created conditions by which government cannot be carried out in accordance with the constitution.

In the predominant part of the official text of the proclamation, Musharraf complains that some members of the judiciary were working at cross purposes with the executive and legislature; of increasing and constant interference by them in government policy and functions, including that of combating terrorism by ordering the release of militants; of taking over the administration of the government. He complains of the order of the country’s supreme court nullifying his order of suspension of Chief Justice Ifthikar Chaudhary and the humiliating treatment being meted out to government officials by the judiciary during court proceedings, which had demoralised the bureaucracy.

It does not require much political acumen to conclude that the real intention of the emergency is to muzzle the supreme court which, it was apprehended, would pronounce an adverse verdict on Musharraf’s election as president in the next week. The actions which followed the proclamation amply prove this.

Immediately after the proclamation, a bench of seven judges of the supreme court declared it illegal. We do not know how and at what time this bench took cognisance of the proclamation. Musharraf retaliated by dispensing with the services of Chief Justice Ifthikar Chaudhary and placed him and six other judges under house arrest. Later Justice Hameed Dogar, fourth in line of seniority, was administered the oath as chief justice by Musharraf under the new provisional constitutional order. The government also appointed new chief justices of the Sindh, Lahore and Balochistan high courts simultaneously. Later Chief Justice Dogar revoked the order of the seven-judge court declaring the emergency illegal and cancelled the hearing of the cases pending in the supreme court against Musharraf.

This is the most surprising and bizarre development in the history of the judiciary of Pakistan. In the past, the Pakistan judiciary, with rare exceptions, had displayed a general timidity and compliance to the regime of military rulers of the country that had governed Pakistan for all but 12 years. The judgments of the supreme court were protective of the military rule and unresponsive to the basic rights of the citizens by inventing recondite doctrines of revolutionary legality and state necessity to legitimise military rule.

After providing a brief overview of earlier and more recent trends in decision-making of the judiciary in Pakistan, Andyarujina concludes:

After all this, one may have to revise Hamilton’s famous statement that of the three branches of government the judiciary is the weakest, having neither the power of the sword nor of the purse. The Pakistan experience shows that it required an emergency to control the judiciary.

Recent PIL cases decided by the Supreme Court

I thank V. Venkatesan for drawing my attention towards recent columns in the Business Standard by MJ Antony, several of which relate to ongoing legal developments in India. A month or so ago, Antony wrote a column titled 'The Split Within' focusing on an interesting debate about the limits of judicial activism between Justices S.B. Sinha and M. Katju. This disagreement among sitting judges of the Supreme Court (something which is increasingly rare in recent times) occured while a two-judge bench was seeking to decide the case of State of U.P. v. Jeet S. Bisht (decided on 18th May 2007). Antony's article is now behind a subscription wall, and cannot be accessed for free. However, the judgment in the Bisht case is available on JUDIS (see links below), and I will post about it in the near future. I recommend reading the case to others on the blog, because it presents some fascinating issues, and resulted in a genuine, fairly contentious debate among Justices Katju and Sinha. Because of the inability of the judges to agree on how the case should be decided, it will be assigned to another bench, and it remains alive, which is an independent reason to study the case. The full text of Justice Katju's judgment in the case is available here, while the text of Justice Sinha's equally spirited response is here. I invite readers and other contributors to read the judgments and offer comments and reactions.

In a separate article published in yesterday's issue, Antony focuses on some PIL cases decided by the Supreme Court in the first few days after it reopened following the summer vacation break:

"The first week after the summer recess showed how varied and bizarre are the subjects dealt with by the court in [recent] PILs.

On the first day itself, the court delivered the judgement in a case, General Insurance Council vs State of Andhra Pradesh. It was in the nature of a PIL, as it sought a direction to the state governments to implement Section 158(6) of the Motor Vehicles Act. If this is taken as a precedent, petitions could flood the courts seeking the enforcement of the various provisions of hundreds of Acts. We are the most over-legislated country with a record for ignoring laws after they are passed by the legislature.

The General Insurance Council stated before the court that Section 158(6) cast an obligation on police officers to forward reports about death or bodily injuries sustained in road accidents to the claims tribunal and the concerned insurance company immediately. However, this is not done in practice. As a result, 1.5 million such cases are pending before various courts. Since such reports are not forwarded within a reasonable time, investigation and verification of claims become difficult. It becomes easier to fabricate evidence, make exaggerated claims and commit fraud. Insurance companies suffer on account of the higher claims and cost on account of the delay in the adjudication of claim petitions.

It is difficult not to sympathise with the insurance companies. But what can the courts do in such instances of total abdication of responsibility by the executive authorities? Observing that there was no justifiable reason as to why the legal requirements are not followed, the court passed the following directions: “All the state governments shall instruct, if not already done, all concerned police officers about the need to comply with the requirement of Section 158(6). Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case of non-compliance, appropriate action shall be taken against erring officials.” Such directions are superfluous as the law is already there and the court orders help little to improve the current mindset. They will go the same way as the judgements banning smoking, littering and spitting in public and prescribing norms to improve the chaotic public transport system in the national capital.

Another judgement of the same genre, PUCL vs Union of India, asked the state governments to make operational 2.72 lakh anganwadis funded by the central government. It would seem that the governments need orders from the Supreme Court to do their duty.

The Supreme Court then delivered another judgement in what it called ‘private interest litigation’. In this case, National Council for Civil Liberties vs Union of India, it was alleged that Narmada dam activist Medha Patkar was motivated by foreign funds and her financial sources should be investigated by the CBI. The court stated that the petition was filed to discredit and diffuse her agitation for rehabilitation of the displaced persons from the dam site before submergence of their habitat. She appeared to be genuinely concerned with the issues. The judgement also said that the petition, without any evidentiary support, was filed out of a grudge harboured by one V K Saxena against Medha Patkar.

Then there is a maverick bunch of petitioners who are trouping to the courts with frivolous prayers. The count for the past week was more than 20. Their prayers included the following: India should be renamed Hindustan; the Arabian Sea should be called Sindhu Sagar; the national anthem Jana Gana Mana should be replaced by the one offered by the petitioner (and partly sung before the Chief Justice); the Prime Minister should be summoned to the court to respond to these requests; and so on.

When the PIL movement was conceived in the late seventies, it was meant to help those who could not approach the courts because of illiteracy, backwardness or inability caused by detention or social conditions. Prisoners, women in distress and children in bondage were some of the genuine beneficiaries. However, now even passengers angry at the delayed departure of planes or congestion charges dash to the courts with PILs. There is a department in the Supreme Court which receives hundreds of such complaints. They vet these petitions before placing them before the court. The hearings of the past week show that the PILs need tighter regulation in the back office."

Antony's column echoes arguments and concerns raised even by those who have in the past been sympathetic to, and ardent promoters of, PIL, including Prashant Bhushan and former Chief Justice Verma. The Supreme Court has for over two decades highlighted the need for regulating PIL carefully to ensure that it remains wedded to legitimate purposes. Antony's concluding comment is bluntly critical of the PIL division of the Supreme Court's Registry which vets PIL petitions.

I am not sure, however, if the remedy for the problem he presents is simply requiring Registry officials within the PIL unit to be more stringent. That would vest a great amount of discretion in registry officials, which would, in the absence of clear guidelines as to how that discretion is to be exercised, lead to other, equally serious problems. Part of the reason why PIL has had such a multi-faceted character and unpredictable trajectory is because efforts to rein in or guide the direction of PIL have not met with much success, whether they were initiated by individual judges within the Supreme Court or by people within government who were unhappy with particular trends in PIL cases. Some of us may consider that to be a good thing in general, but these cases do point to the need for some kind of intervention by Judges of the Supreme Court (and not registry officials) to lay out broad guidelines on the limits of PIL petitions that can be entertained.

Update, 3.30 pm: I've added links to the full text of the judgments in the Bisht case, which are available on JUDIS, for those who might want to read the case.

Judging and Politics: Using an American lens to raise some questions about the Indian situation

The latest issue of the New Yorker has a short but interesting assessment of the judicial output of the U.S. Supreme Court over the last year. The author of the article is the noted legal analyst, Jeffrey Toobin (who, like most established legal journalists in the U.S., has a law degree from an elite law school). The piece adopts a fairly standard American approach to conducting an assessment of the judicial record of the highest court of the land. By standard, I mean an analysis that is extremely (perhaps overly) sensitive to the political backgrounds of judicial actors - while this is becoming common in other jurisdictions, America is still perhaps the only jurisdiction where this realist awareness is taken to such degrees. So, in Toobin's analysis, the most important factors which explain why American judges decide the way they do, are their personal political beliefs, which in turn causes Presidents to appoint them to the Court. Here are some extracts from the piece which set out this view:

"In the next week or so, the justices will begin their summer recess. The first full term in which Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., have served together will thus be completed, and the changes on the Court, and their implications for the nation, have been profound.

The careers of Roberts and Alito have been emblematic of the conservative ascendancy in American law. Both men, shortly after graduating from law school, joined the Reagan Administration, where Edwin Meese III, who was for a time the Attorney General, and others were building a comprehensive critique of the Supreme Court under Chief Justices Earl Warren and Warren E. Burger. The conservative agenda has remained largely unchanged in the decades since: Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade, and allow states to ban abortion. As Alito wrote in an application for a Justice Department promotion in 1985, his work on abortion and race cases, among other Reagan Administration priorities, had given him the chance “to advance legal positions in which I personally believe very strongly.”

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda.

[The next few paragraphs of the article detail some important decisions handed down over the past year, which appear to confirm Toobin's claims].

All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.

... ... ...And that, ultimately, is the point. When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. Presidents pick justices to extend their legacies; by this standard, Bush chose wisely. The days when justices surprised the Presidents who appointed them are over—the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the Presidents who appointed them. At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly."

What is striking in this analysis, is the assertion that decision-making in the U.S. Supreme Court is guided almost entirely by the personal political beliefs of individual judges. Toobin does not seem to think that there are any other factors which can work towards constraining a judge in deciding disputes. In an important new book, the American scholar Brian Z. Tamanaha has called such a view "instrumental" or the idea that the law is merely a means to an end. Tamanaha asserts that under this view, "people see law as an instrument of power to advance their personal interests or the interests or policies of the individuals or groups they support." According to Tamanaha, such a view "is taken for granted in the United States, almost a part of the air we breathe," and perceives the law "as an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends." The rest of Tamanaha's book is devoted to detailing the problems which accompany such a worldview. In its stead, Tamanaha proposes what he calls a "consciously rule-bound orientation." Tamanaha accepts that personal political views and experiences will colour and affect how judges decide cases. Yet, he asserts , a judge can and should aspire for objectivity in legal decisions, which is both real and achievable in the conscious attitudes and motivations of judges.

Coming to the point of this post, I wonder about the extent to which such views of the law shape how we in India react to decisions of our own Supreme Court. As a perceptive student pointed out in a recent class discussion on constitutional theory in India, the structure of the Indian Supreme Court, and the operational details it adopts, precludes a straightforward adoption of American modes of analysis. This is because judges in the Indian Supreme Court do not sit together to decide cases, and decisions of the Court are actually handed down by twenty-six judges sitting together in benches consisting of 2 or 3 judges. On any given day, therefore, a decision of the Supreme Court of India could be given by any of ten different benches of the Court that are sitting concurrently and handing down decisions. All this is not to suggest that this makes the personal political views of judges irrelevant for decision-making. They are certainly relevant, but to conduct an analysis of how exactly they influence decisions will require a more sophisticated methodology, which accounts for the more complex practices of the Indian Supreme Court.

Also, I wonder whether what Tamanaha calls the "instrumental view of the law" is as prevalent in India. While one does see examples of this kind of analysis in India (evident, for instance, in how some newspaper commentators reacted to the interim stay order in the Thakur case), I suspect that even during the height of PIL jurisprudence (a jurisdiction which seems more amenable to allowing a judge to inject his personal views in actual decision-making) , a considerable number of people think that judges are not simply paying politics when they intervene in executive and legislative decisions. The fact that the Supreme Court consistently comes out near the end of the top of public institutions ranked for credibility, shows that it is generally perceived as enjoying legitimacy. (Of course, one way of interpreting this is that the people in general know that judges are playing politics, but simply approve of the politics that they are engaging in).

Recent discussions on this blog have focused on how Justice Pasayat, while exercising jurisdiction as part of the Vacation Bench of the Supreme Court, has handed down decisions which are apparently inconsistent. I refer here to previous posts by V. Venkatesan on the Supreme Court's orders in the Dera Sacha Sauda and Gujjar riots episodes. In analysing these decisions, both my fellow bloggers and the various commentators who reacted to these posts, have adopted explicitly "instrumental" views of the law, implying that Justice Pasayat's personal views may account for such seeming inconsistencies. On the current Supreme Court, Justice Pasayat, at least in the calender year 2007, is enjoying an undue amount of attention in part because he has had to decide some extremely controversial issues. While he was allotted the Thakur case, his decisions in the Dera Sacha Sauda and Gujjar riots episodes came about because he happened to be on the Vacation Bench. How a judge on the Supreme Court gets allocated particular cases is a matter within the administrative powers of the Chief Justice, but the general understanding of current practices is that in most cases, bench allocation happens through computerisation, and the role of individual discretion is greatly circumscribed. Still, from time to time, especially when it comes to the constitution of benches for sensitive constitutional questions, this becomes a matter of speculation and controversy. These events act as a possible counter to my speculative conclusion that Indian analysts are perhaps not as committed to instrumental views of the law, and harbour a belief that judges are subject to constraints (of text, history, and precedents, to name a few).

I invite comments, counterpoints and other responses from fellow bloggers and readers on these speculations, as well as on ways of analysing judicial decisions in India more generally.

Mehta's assessment of Supreme Court politics in India

The April 2007 issue of the Journal of Democracy has a feature on "India's Unlikely Democracy" which includes an article by Pratap Bhanu Mehta titled "The Rise of Judicial Sovereignty." Mehta's piece reiterates some of the analysis that he has advanced in his previous writings, and has the advantage of being a short and succinct overview of the role of the judiciary in post-independent Indian politics. Apart from its helpful descriptive analysis, the article contains many of Mehta's typically provocative and insightful comments. A sampling of these is included here, but the article as a whole is a good resource for those seeking an understanding of the important role played by the judiciary in India. Mehta makes the important point that

"[a]lthough most studies of Indian politics pay almost no attention to the courts, disputes between the judiciary and the other two branches have been as important a fact about Indian political life as any."

Mehta asserts that the Indian Supreme Court's body of work is characterised by what he calls "three profound ironies" which he describes as follows:

“First, even as the nation’s most senior judicial panel engages in high-profile PIL interventions,
routine access to justice remains extremely difficult. India’s federal judicial system has a backlog of almost twenty million cases, thousands of prisoners are awaiting trial, and the average time it takes to get a judgment has been steadily increasing. There is a saying in India that you do not get punishment after due process—due process is the punishment.

The second irony is that even as the Supreme Court has established itself as a forum for resolving public-policy problems, the principles informing its actions have become less clear. To the extent that the rule of law means making available a forum for appeals, one can argue that the Court has done a decent job. To the extent that the rule of law means articulating a coherent public philosophy that produces predictable results, the Court’s interventions look less impressive.

The third irony is that the Court has helped itself to so much power— usurping executive functions, marginalizing the representative process— without explaining from whence its own authority is supposed to come. In theory, democracy and constitutionalism can reinforce each other, but in practice their relationship is complex and even problematic.

The question of where one begins and the other ends has taken on global significance in light of the widely observed trend toward “postdemocracy,” according to which representative institutions are losing power to nonelected centers of decision making the world over. In India, unelected judges have effectively replaced the notion of the separation of powers among three governmental branches with a “unitarian” claim of formal judicial supremacy. The concept of the rule of law is supposed to legitimate this claim, but whether judicial supremacy— either as such or as exercised by the Indian Supreme Court—actually upholds the rule of law remains an open question.”

For me, the most insightful and simultaneously provocative part of the article was where Mehta makes the following claim:

"It is no accident that Indian constitutional law has been relatively unstable, or that the same courts which appear assertive in some areas seem weak in others: strong enough to spark the passage of many constitutional amendments meant to confound judicial rulings, but so easygoing
that no major politician has ever been charged in any of the numerous corruption cases that the Supreme Court has been supervising for years. The legitimacy and power that India’s judiciary does enjoy most likely flow not from a clear and consistent constitutional vision, but rather from its opposite. The Supreme Court in particular has given enough players enough partial victories to leave them feeling as if they have a stake in keeping the game of political give-and-take going. This, more than any ringing defense of principle, is the Court’s signal contribution to Indian democracy. (Emphasis added)."

My immediate reaction was to find this analysis persuasive, and I would be curious to know how others who have studied the Court's work would react to such an assessment of its functioning. The one worry I have with such an interpretation, however, is that it seems to suggest that the Indian Supreme Court is a homogenous institution, whose members work in concert with each other in designing the gameplan of the organisation and that this 'strategy' was conceived and implemented by the institution as a whole. The practical reality of a 26 member institution whose membership is constantly in flux, and which sits in benches of 2 or 3 judges must make us a bit wary of accepting Mehta's analysis uncritically. This is all the more so because Supreme Court judges are in theory supposed to work independently of each other, and each case is supposed to be decided on its own merits, by judges who have been randomly assigned to the bench deciding the particular case. The idea that judges adopt an overall strategy towards cases of a certain type, or that they discuss with other judges (who are not part of the particular bench) the approach or strategy that they should adopt in reaching a certain decision, would offend at least some of the accepted understandings about the judicial role. While the Court does have an overall institutional strategy on some issues, the fact is that it does not have very much control over its docket (unlike say the U.S. Supreme Court which controls access through grants of certiorari). While the Indian Supreme Court can control its docket (by deciding, for instance, not to grant SLPs in a certain category of cases) being simultaneoulsy a general court of appeal, its ability to do so is hampered.

I also worry that this analysis may lead to people becoming sanguine about individually egregious decisions of the Court, as they may think that the particular decision is just a part of a larger trend of cases that the institution is focusing on. This may lead, also, to a dilution of attention that should be focused on the justificatory reasoning advanced in support of each individual decision.The fact remains that given the nature of adjudicatory processes, decisions are made on an individualised, case-by-case basis, and the justification advanced for every decision should be capable of standing alone, instead of being understood as part of some overall utilitarian calculation.

The individualised character of litigation and adjudicatory processes makes the Court different from other political actors which can make policy decisions in the abstract. I believe that Mehta's analysis, while compelling as a general hypothesis, does not pay sufficient attention to this aspect of the Supreme Court's functioning.