Guest post: Talk on Public Law Litigation In India by Dr Surya Deva

Talha Abdul Rahman, a recent graduate of Nalsar University of Law, Hyderabad, currently pursuing post graduate studies (BCL) at the University of Oxford as a Shell Centenary Chevening Scholar, reports on Dr. Surya Deva's talk in Oxford on Public Interest Litigation in India. The presentation slides for the talk are available here. This blog has discussed the issue of PILs here, here and here. Talha's previous guest post on this blog can be found here.

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Civil Procedure Seminar Series for BCL/MJur students had first of its seminar today on “Public Law Litigation in India” by Dr Surya Deva, Assistant Professor, City University of Hong Kong. The primary audience of the seminar was students of Principles of Civil Procedure course lead by Prof. Adrian Zuckerman, but was attended by other students and fellows of University of Oxford. The seminar was partly based on Dr. Deva’s article titled “Public Interest Litigation in India: A Critical Review”.

The seminar began with the introduction of ‘public interest litigation’ (PIL) by outlining the factors that promoted its use as tool to do justice and that enhanced its popularity, and legitimacy of the system. He pointed out that its popularity is linked to the fact that it made justice accessible to poor Indians (while maintaining the impoverishment must not be construed only in economic terms), and made collective/diffused rights enforceable. It unfettered justice from procedural rules that proved as obstacles to access justice.

The second part of the seminar was focussed on tracing the evolution of PIL. The pioneers he pointed out, influenced by American jurisprudence, were Justice Bhagwati and Justice Krishna Iyer. He also summarily pointed out the distinction between public interest litigation and social action litigation as argued by Prof. Upendra Baxi. The former is ‘group’ based, and the latter is issue based (where focus is on getting the justice done) and thus the latter is actually the true nomenclature for PIL in India. He also made a brief reference to Prof. Julius Stone’s work in connection with using the law for social action. He further argued that as opposed to other jurisdictions, PIL in India finds itself deeply entrenched in the Constitutional provisions, and is therefore there to remain. Overall framework of the Constitution of India is conducive to development and invocation of PIL jurisdiction. He noted that the Supreme Court made suitable modifications to the scope and requirements under procedural rules relating to locus standi, filing procedures, cause of action, evidentiary problems and reliefs.

Curiously enough, through a graphic representation he pointed out how the Supreme Court over the years has changed the nature of PIL, and is increasingly addressing issues that concern middle-class Indian such as good governance, and dam construction. This, he juxtaposed with ‘First-phase’ of PIL in 1970s-80s where the Supreme Court was concerned with issues that were close to ‘poor Indians’. He also made a passing reference to “1949 Constitution” which had a provision, about which many do not know, that permitted enforcement of fundamental rights against private actors.

While these observations do have some force, it seems to me that it has been assumed that good-governance etc are issues that relate to middle class and have no relevance for poor Indians. It needs much more analysis. Further, the notion of ‘middle-class’ as being an identifiable class, distinct from ‘poor Indians’ is not entirely free from problems, especially when “poor” has to be construed also in non-economic terms. It is also arguable that rather than replacing issues that it dealt with, the Supreme Court began to expand it jurisdiction to take on board issues which were hitherto addressed with a hands-off policy. Also in attributing ‘class’ to exercise of jurisdiction over issues, one is obliterating the distinction that Dr. Baxi pointed out about Indian PIL – that it is issue based litigation.

He took the audience through a range of issues that the higher courts in India have dealt with under their PIL jurisdiction. Strong issues such as sexual harassment figured, but examples were dominated by rather risible selection of cases, such as PIL on “monkey menace”. It remained unclear that whether such examples were the rule or exception; as that would determine what role Indian courts have assigned to themselves, especially when audience is placed as an outsider in an international class-room setting. It could build a strong case for law reform by anecdote, against which an Australian academic (Prof. Camille Cameron) had cautioned in one of the earlier lectures in Civil Procedure in relation of class-actions.

He submitted that Indian Supreme Court is world’s most active court, may be rivaled only by Israeli Supreme Court, as it has deployed legitimate tools available to judiciary to claim powers that did not belong to it. He exemplified this by reference to judicial appointments, and development of ‘basic structure’.

The Good, the Bad and the Ugly

Dr. Deva pointed out that there has been much good that has been done by the public interest litigation, which he sees as a phenomenon. It revived the lost faith in the judiciary and thus its legitimacy. It was now increasingly to respond to systemic failures, such as lack of education, access to health, education etc. (Though no reference was made to Emergency, but I must take this opportunity to point out that some commentators see rapid development of PIL in India as judiciary’s ‘catharsis’ for its role during emergency). He pointed out that it created an additional forum where the government could be held accountable. In many a cases (environmental law for instance) it triggered legislative machinery to produce law, and did gap filling where required. At this point, a passing reference was made to separation of power. He further said that PIL in India had a “second tier” influence on legal development in the sub-continent, in that, courts of other countries did take note of these decisions by the Indian Supreme Court. This was followed by examples of cases, about which I have mentioned earlier.

As to the Dark Side of the PIL jurisdiction, firstly, he argued that it was capable of, and was in fact being abused. It was being used for surrogate purposes of advancing private or publicity interest using court resources. At this point, he expressed his concerns for excessive liberalisation of locus standi rules and definition of public interest. He also pointed out that PIL was being used to bypass normal route in litigation. (This to me from civil procedure perspective might run foul of ‘abuse of process’ doctrine, where emphasis is not on whether someone fits in text of the law but test is rather the purpose for which it is being used. There could be sanctions/costs implication under the English Civil Procedure.) He agreed that while Indian courts have begun to impose fine, parties generally bear their own costs.

Secondly, that it created an imbalance in allocation of resources. This is a serious concern in any legal system as there are limited resources that have to be used effectively, efficiently and fairly.

Thirdly, judges, he argued, could be motivated by desire of ‘judicial populism’ and to project themselves as crusaders of democracy. While this may have some force, but it must be pointed out that examples given earlier did not engage one in ‘judicial process’, which to me is an inseparable aspect of understanding why court behaved in the way it did.

Fourthly, that the court actually delegitimizes itself by engaging in ‘symbolic justice’ and giving rulings that cannot be enforced. (No distinction however was drawn between ‘progressive realization’ through creeping jurisdiction, and practically unenforceable rulings).

He concluded that there is an urgent need to develop rules to regulate public interest litigation, for it to be utilized effectively and efficiently. Prof. Zuckerman pointed out that we have reached an interesting situation wherein, we had begun to provide direct access to justice with minimum rules as obstacles, and now we want rules to ensure that justice is done. Without rules there is no justice.

This was followed by question and answer session.

In response to a question concerning certain ‘unenforceable directions’, he pointed out that there are no rules for what can be ordered by the Supreme Court as it has power to give ‘appropriate’ relief to do ‘complete justice’, phrases that the courts borrowed from the Constitution. He also pointed out that directions could be unenforceable despite the fact in a collaborative. non-adversarial PIL mechanism government is given full opportunity to place its case. It could be because of resource allocation, or sheer feasibility issues of law enforcement. He pointed out that there are no rules, except expectation that government would behave as model litigant and would not raise mere technical issues to defeat the ends of justice. He cited instances where government was castigated for such a behaviour. He pointed out that the judges have a ‘self-interest’ in not having black-letter rules of law as that would limit their judicial freedom. (At the same time he pointed out that courts in India have interpreted “shall” used in civil procedure to fix time-table of litigation as “may”, giving them power to extend time even when they could not do so under strict reading of the text.) From a civil procedure perspective, this to me, would undermine not only the authority the Parliament that has fixed time-tables to file pleadings, but would also cast doubts on the administration of justice is it issues ‘empty threats’. This is the sort of situation that imposition of sanctions for breach of peremptory orders under civil procedure and Rule 3.9 (Relief from Sanctions) of English CPR aims to address.

He further elaborated on court’s power and discussed its power to take action suo motu, with some reference to principle of Nemo iudex in sua causa (no one should be judge in his own cause). In response to a suggestion from a Dutch student to accommodate “ideological foundation” test to liberalize locus standi rules, he argued for a regime that provided economic disincentive. He pointed out that in 1996 there was a legislative attempt to impose fine for filing frivolous petitions, but it fizzled out in political cloud. In the same breath, he noted that the Supreme Court and High Courts impose fines in appropriate cases which are deposited in court’s treasury – probably recognizing frivolous petitions as injury to administration of justice and causing waste of court’s resources. There is, he pointed out, no costs regime that takes care of such issues. He believes that rules will have to be put in place, and it will have to be seen whether such rules come from courts under its delegated legislative powers, or from the Parliament.

In response to a question of whether the system has been exploited to impose moral policing or as social ordering of female sexuality, he noted that generally this jurisdiction was used to benefit women. Rather vague as it sounds, but the question is such that it calls for much deeper analysis than, I think, is possible in a seminar. He exemplified using sexual harassment cases, and noted that the trend also indicates inclusion of enforcement of rights against private actors using state machinery as surrogate device.

As an Indian student to me, it outlined in simple terms for international students, the broad contours of public interest litigation in India.

(I am thankful to Mr. Tarunabh Khaitan for giving me an opportunity to blog this seminar. I have tried to summarize the seminar on the basis of my notes, and references to Civil Procedure unless specified otherwise are my own observations. Faults, are all my own.)

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

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

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

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

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

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

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

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

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

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

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

Judicial Activism, PILs and all that jazz

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

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

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

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

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

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

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

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

Report on first day of hearing in the Naz petition

The Lawyers' Collective report on the first day of hearing in the challenge to s. 377 is available on their website, which promises to provide daily updates of the hearing. Arvind Narrain criticises the continued existence of s. 377 in an article in the Indian Express today, and contrasts it with the recent election of an openly gay man to Nepal's constituent assembly.

I find the contradictory government stand most interesting - 'Counsel for the Union of India submitted that her client had filed two affidavits, one by the National Aids Control Organization (NACO) under the Ministry of Health and the other by the Ministry of Home Affairs. She admitted that NACO's reply is supportive of the Petitioner.'

Update - The matter is adjourned as part-heard till 2nd July 2008 (after the summer vacation).

Further commentary on the Aravali Golf Club ruling

I thank Mr. Venkatesan for drawing my attention to pieces by two legal jurists in today's papers that adopt a critical perspective on the Mathur-Katju bench ruling. In some ways they echo points already made here, while outlining fresh points with much greater clarity and further context.

Justice Rama Jois - who apart from being a distinguished former Chief Justice of a leading High Court is also a familiar name to generations of law students by virtue of his text book that is prescribed reading in most Indian law schools- has a column in the Express that is critical of the Mathur-Katju bench for “crossing the lakshman rekha of judicial discipline.” He feels that by criticizing Supreme Court decisions that are still the law of the land, the Mathur-Katju bench has done grave damage to the reputation of the Supreme Court. Interestingly, Justice Rama Jois believes that the Mathur-Katju bench was justified in its criticism of the Delhi High court’s decisions.

Rajeev Dhavan, writing in the Mail Today, agrees partially with Justice Rama Jois’ claim but goes much further. In his words:

"What is a matter of worry is that Justice Katju has called into question the entire human rights and social justice jurisprudence evolved by the Supreme Court over the last 30 years."

Dr Dhavan’s views on this issue carry great weight because he has been among the earliest, most diligent and insightful scholarly commentators of the phenomenon of PIL. In recent decades, after he moved from academia to the trenches of the Supreme Court bar, he has been actively involved in several prominent PIL and constitutional cases as counsel and amicus. Here is his main argument, which ends up being quite a devastating critique of the ruling:

"The real problem with Justice Katju's shock treatment approach is two-fold. The first is that his remarks may have been appropriate for a speech but not for a judgement which has created chaos. The phrase “judicial terrorism” comes to mind. Second — and more important — Justice Katju fails to distinguish between “judicial activism” (which is permissible) and “judicial excessivism” (which is not). Judicial activism is inevitable. India has a forward- looking activist Constitution to impart human rights and social justice for all. Judges cannot shy away from fulfilling this dream for all people by inventing new legal techniques to ensure it. Without these techniques, the Constitution would become supine. No doubt there is judicial excessivism. The Jharkhand cases wrongly invaded legislative autonomy. The Forest cases cannot go on for over 10 years whereby the Supreme Court and its infamous committee have virtually become the Ministry of Forests. The Police and Sexual Harassment cases enacted law. Government by judiciary is questionable unless it is disciplined.

I believe such a discipline exists.

The Chief Justice wants to re-examine the principles of PIL. In my view, this would be a mistake. I was an amicus to the court in the Sudipta Majumdar case (1983) where ten questions were formulated to discipline PIL. Around 2000, on my advice, a Constitution bench declined to order straitjacket guidelines because it rightly accepted that guidelines were available. Judges should simply follow these existing guidelines. An assessment of PIL itself will open a Pandora's box, which is neither necessary nor desirable. Judges often make extra-judicial remarks. This one has flown over the cuckoo's nest."

The aftermath of the Aravali Golf club ruling and an analysis of some of the initial commentary

TR Andhyarujina (who, as noted in this post, has written insightfully about PIL in the past) has an excellent column in today’s Indian Express which provides an objective assessment of the much-discussed ruling in the Aravali Golf Club case. He points out why the Mathur-Katju bench is right in raising its concerns, as well as the problems with the way it has done so. In doing so, he provides a lot of historical context which is worth recalling as this issue continues to be debated. The whole piece is an illuminating read. Here is how he ends:

The admonition of the two judges of the Supreme Court may cause problems in the PIL jurisdiction being exercised by high courts. Propriety required that the judges should not have commented on pending cases in the Delhi High Court as they have done. There are other areas in public interest litigation, which are still the legitimate function of courts which the recent judgment does not address and cannot be considered as hands-off for courts. How are courts, particularly the high courts, to exercise this jurisdiction now? One suggestion is that a larger bench of the Supreme Court should lay down authoritative criteria of the permissible and impermissible judicial interventions. Some time in 1983, a bench of the Supreme Court did make such a reference to a larger bench, but it remained in cold storage. To distil judicial power by rigid rules of conduct is not advisable but it may at least guide the future course of the action of courts in the vast and amorphous jurisdiction assumed by them in the name of judicial activism.

Here, Andyarujina recalls a quarter-century old precedent for this episode: in Sudipt Mazumdar v. Union of India, (1983) 2 SCC 258), a two-judge bench comprising Justices ES Venkataramaiah and S. Fazl Ali, created a minor furore during the early days of PIL when they passed an order raising fundamental questions about the new PIL jurisdiction being exercised by the Court. Here is part of that (in)famous order:

The following questions arise for consideration in the writ petition :

1. Should this Court take notice of such letters addressed by individuals by post enclosing some paper cuttings and take action on them suo motu except where the complaint refers to deprivation of liberty of any individual ?

2. Should such letters be sent to the Supreme Court Legal Aid Society by the Registrar with a request to examine whether there is any prima facie case which requires to be considered by this Court and if it is felt that there is such a case to file a formal petition against appropriate parties after collecting necessary material ?

3. Can a stranger to a cause, be he a journalist, social worker, advocate or an association of such persons initiate action before this Court in matters alleged to be involving public interest or should a petitioner have some interest in common with others whose rights are infringed by some governmental action or inaction in order to establish his locus standi to make such a complaint ?

4. (a) Can this Court take action on such letters though there is no prima facie case of infringement of any fundamental right ?

(b) Even in cases where a fundamental right is stated to have been infringed, can this Court take action on such letters where there is no allegation that the person concerned is kept in illegal custody ?

5. Can this Court take action on such letters in matters for which remedy can be had in ordinary civil, criminal or revenue courts or other offices on the ground that a number of people are affected ? To be precise, if the complaint contains an allegation of encroachment of lands of one group or tribe by another group or tribe, can this Court direct the District Magistrate or the District Judge to enquire into the matter and to make a report to this Court ? Or should the parties be given necessary legal aid and referred to a local court having jurisdiction over the matter ?

6. Can this Court take action on letters addressed to it where the facts disclosed are not sufficient to take action ? Should these letters be treated differently from other regular petitions filed into this Court in this regard and should the District Magistrate or the District Judge be asked to enquire and make a report to this Court to ascertain whether there is any case for further action ?

7. If after investigation, it is found that by such a letter a baseless complaint had been made, should not costs be imposed on the person who had written it? Can he be treated differently from others?

8. Should a petitioner who has an interest in common with others whose rights are alleged to have been infringed be exempted from paying court fees and from all other relevant rules of the Supreme Court when he writes a letter to this Court complaining about such infringement? Should all the relevant rules be suspended when a complaint is made through a letter?

9. If this Court can take action on such letters in such informal way, why should not the High Courts and other courts, authorities and officers in India also act in the same way in all matters?

10. Would such informality not lead to greater identification of the Court with the cause than it would be when a case involving the same type of cause is filed in the normal way?

Since these and other important questions arise for consideration in the above case, we feel that this case should be placed at this stage itself before the Constitution Bench to give proper guidelines on the various issues involved in it.

Clearly, some of these questions are still relevant, a quarter-century on. However, as Andhyarujina notes, these questions were never addressed by the Supreme Court, even though Justice Venkataramaiah went on to become Chief Justice, and theoretically had the power to convene a Constitution Bench to focus on these issues.

The question is whether the issues raised in the Aravali Golf Club ruling will meet the same fate as those outlined in the Mazumdar case. Today's Express carries a report which states that CJ Balakrishnan has decided to take up the issues raised by the Mathur-Katju bench for consideration. The report in the Hindu carries more details, and also quotes from the order of the Sinha-Bedi bench which referred the case to the CJI pursuant - and as a somewhat petulant reaction - to the Mathur-Katju order. The news-reports indicate that the CJI has posted the matter to February 2008. The immediate effect of this intervention by the CJI is to forestall further debate on the Aravali Golf Club ruling, and to provide some certainty, while also putting an end to the criticism of judicial adventurism. The message sent out, at least for now, is that both the Supreme Court and the High Courts can continue to admit and rule on PILs. This would also seem to take care of the concerns expressed by Andharujina in the extract quoted above.

There is, however, reason to doubt whether the Supreme Court will actually follow up on this seeming promise. Note that the matter has not been placed before a Constitution Bench, but will be decided by a three-judge bench, which may or may not directly address all the issues raised by the Mathur-Katju bench while deciding upon the facts before it. The ruling of a three-judge bench will not, in any event, carry the authoritative effect of a decision of a Constitution Bench. This therefore seems more like an attempt to soothe the feathers ruffled by the Mathur-Katju order, rather than a genuine effort to address the substantial questions raised in it. This may be because the questions raised both in Mazumdar and the Aravali Golf Club case are extremely difficult ones to answer. Furthermore, it may well be in the institutional interest of the Supreme Court to avoid giving precise answers to these questions. As Pratap Mehta has argued, ambiguity on these questions actually enhances the power of the Court. We will have to wait for a few months to find out what happens as a result of this extraordinary ruling.

Andhyarujina’s piece is to be contrasted with Barkha Dutt’s rambling, muddled piece on the same case in the HT. While she too provides interesting background context (especially on the political sensibilities which inform reactions to the case), her analysis of the legal issues involved (as well as their historical context) leaves much to be desired. Take the following paragraph:

Those who are impatient with an activist judiciary have caricatured it as the first refuge of the lazy liberal. And, admittedly, there has been an aggressive infiltration by the PIL-happy NGO army into the once robust world of high-minded law. Often, these petitions are absurd. Moreover, in a country where there is a backlog of 40,000 cases in the Supreme Court alone (and another 25 million in the lower courts) they are also a waste of valuable time and money. So, for the Punjab and Haryana High Courts to get involved in the internal workings of whether a golf club should create a driver’s post for a gardener is indisputably ludicrous.

This analysis betrays a fundamental misunderstanding of the Aravali Golf ruling, which was not a PIL, but a case initiated by justifiably disgruntled maalis. The P & H High Court was required to “get involved in the internal workings” of the Golf Club. Here is how the Mathur-Katju bench describes the facts of the case (see paras 4-5 of the judgment):

The brief facts which are necessary for the disposal of the present appeal are that the plaintiffs (respondents in this appeal) were appointed as Mali (gardener) in the service of the defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to perform the duties of Tractor Drivers, though there was no post of tractor driver in the employers establishment. However for a number of years they continued to be paid wages for the post of Mali. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they continued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and not as tractor driver. When despite representations their grievance was not redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. (Emphasis mine).

There is nothing “indisputably ludicrous” about the merits of the case filed by the maalis. While the single judge may have been somewhat injudicious in drafting his order, his action is not without precedent – courts very often require government departments to make adjustments to the designations and service perks where their actions are seen as giving rise to such expectations in employees. The maalis working in the Aravali Golf Club did have some cause to argue that they had been treated less than ideally by the Golf Club, and hence by the government.

That is why Andhyarujina refers to the case as “a minor case.” Indeed, as Bibek Debroy points out in his column analyzing this ruling, “It is conceivable to think of situations where natural justice might require such an order.”

I cannot help thinking that the Mathur-Katju bench made a miscalculation in choosing the case where it decided to take its stand. Their “unprecedented” call for a change might have had more persuasive effect if they had chosen a better vehicle to demonstrate the merits of their attack on judicial adventurism.

Myriad responses to the Aravali Golf Club ruling: Not earthshaking, but significant

The previous post ended by speculating about the reactions of judges – especially those who are regarded as more ‘activist’ - to the caustic remarks of the Mathur-Katju bench on judicial activism in the Aravali Golf club case. Today’s papers are reporting a number of diverse responses from judges at the Supreme Court and the Delhi High Court.

At the Supreme Court, the reactions of pro-PIL judges has been swift, though different strategies have been adopted. The judges on the current bench who have recently been identified as favouring ‘activist’ approaches have most prominently been Justices Arijit Pasayat and SB Sinha, and it is interesting to note that both judges have reacted quite quickly and directly.

A bench consisting of Justices Pasayat and Sathasivam, while deciding a case relating to a labour/employment dispute, is reported to have reacted to the Aravali Golf case ruling as follows:

“The only thing in a judge’s decision binding (on) a party is the principle upon which the case is decided,” said the court, adding that it was important to analyse a decision and isolate from it the observations. Underlining that observations made by courts “must be read in the context in which they appear to have been stated”, the bench comprising Justices Dr Arijit Pasayat and P Sathasivam said: “Observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context.” While judges may embark on lengthy discussions to interpret words, phrases and provisions of a Statute, the court said, this was “meant to explain and not to define”. “Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes,” the apex court reminded.”

The Pasayat-Sathasivam bench is thus taking the technically correct stance that the observations of the Mathur-Katju bench on judicial activism were purely obiter. In other words, those observations were not necessary to decide the facts before the Court in that case, and do not therefore, have precedential authority for future cases. This is of course true, because, as we saw in the last post, the Aravali Golf case was a service matter and did not arise from a PIL; arguably, the facts there did not involve ‘judicial legislation’ at all.

A bench consisting of Justices Sinha and Bedi is reported to have taken a more aggressive stance (though some newspapers – such as the Telegraph - have misconstrued this as a cautious response). The Hindu describes the proceedings before that bench as under:

A two-judge Bench of the Supreme Court, dealing with a public interest litigation petition since 2004, has referred the matter to Chief Justice K.G. Balakrishnan for being posted before a larger Bench. It has apparently taken note of a judgment by Justices A.K. Mathur and Markandey Katju, who on Monday said the judiciary must show restraint.

The Bench, consisting of Justices S. B. Sinha and H.S. Bedi, was hearing the PIL petition filed by a non-governmental organisation, Prajwala, seeking guidelines for rehabilitation of victims of immoral trafficking after “they are rescued from brothel homes.” The court in 2004 issued notice to the Centre and the State governments and the matter was at an advanced stage of hearing.

When it was taken up on Tuesday, Justice Sinha told Solicitor-General G.E. Vahanvati, “In view of yesterday’s [Monday’s] developments which we came to know this morning,” larger issues were to be decided in this case and hence “we are referring it to the CJI.”

In essence, the Sinha-Bedi bench is pointing out the problem of a 2-judge bench having questioned modes that have become conventional methods in the Supreme Court. (In the comments section to the previous post, Dilip draws attention to this and the fact that unlike the US Supreme Court which sits en banc, our own apex Court operates essentially as a series of 10-12 co-ordinate courts sitting and deciding cases separately, although all such decisions are considered decisions “of the Supreme Court of India”).

By referring the matter to the CJI, the Sinha-Bedi bench is signaling the need for a coherent institutional response to the issues raised by the Mathur-Katju bench. This is also interesting because the case before the Sinha-Bedi bench appears to be of the kind which is the focus of the Mathur-Katju bench’s observations. Here are more details about the facts of the case before the Sinha-Bedi bench (from the Hindu's report):

The petitioner submitted that in the country over 23 lakh women and children were trafficked in for commercial sexual exploitation. More than 25 per cent of them were children. Giving details of how poor women and children were lured into the trade on the promise of a better life in cities, the petitioner said, “After the initial rape and the consequent exploitation in slavery-like conditions, the victim starts believing that this is her fate.”

The petitioner pointed out the problems faced by sex workers faced after they were rescued, and sought framing of a Victims Protection Protocol. There should be penal consequences for non-compliance by authorities and it should be made mandatory for the governments to incorporate guidelines on proper rehabilitation of sex workers. These would include putting in place a training-module to sensitise police, judiciary and government personnel involved in the rescue and rehabilitation of victims of trafficking.

The obiter observations of the Mathur-Katju bench appear to have caused considerable consternation among its other target audience: the judges of the High Court of Delhi. The Telegraph reports the reaction of Justice Mukul Mudgal as follows:

Justice Mukul Mudgal deferred a case relating to begging till February 8. He said he did not want to hear the case till he had seen the Mathur-Katju judgment. Several of the verdicts criticised by Mathur-Katju were Delhi High Court rulings, including some on begging, nursery admissions and demolitions.

Zee news reports that Justice Gita Mittal of the same court took a different approach (mirroring, in some ways, that of the Pasayat-Sathasivam bench):

Justice Gita Mittal rejected a submission made by DDA's counsel Rajiv Bansal that in view of the apex court's observation, the court should refrain from hearing the matter relating to constructions on the Yamuna banks. Justice Mittal, while rejecting the counsel's plea, said that nowhere the judgement had said that courts should not entertain the petition relating to violation of Article 21 (Right to Liberty). "Court cannot remain silent looking at the plight of the citizens and the pathetic conditions of the city," she observed, while reminding the counsel that court intervene when the DDA failed to discharge its duties.

As these diverse orders point out, reactions to the observations of the Mathur-Katju bench have been swift and pointed. While the substantive issues raised are not new, the way in which they have been raised is certainly novel. This episode also raises the question of how courts should go about correcting their course, assuming that there is consensus that such a correction is required.

Given these complexities, I for one was a bit surprised at the quick endorsement advanced by the editorial team of the Indian Express for the views of the Mathur-Katju bench. My own view is that the substantive debate, while important, may have to wait till the immediate problems caused by the Mathur-Katju bench’s gratuitous observations are sorted out. I remain doubtful if the course of action they chose to make their case was the correct – or justifiable – one.

A fresh round in the internal debate within the Supreme Court over the limits of Judicial activism

Today’s newspapers are devoting considerable attention to a recent decision of a division bench of the Supreme Court consisting of Justices AP Mathur and Markandey Katju. This is how the news-item in the Indian Express begins:

In the strongest censure of itself in recent times, the Supreme Court, admitting that judicial activism is disturbing the “delicate” balance of powers “enshrined” in the Constitution, has sent an unequivocal message to the judiciary: restrain yourself. And has even gone to the extent of questioning a slew of recent orders by the Delhi High Court — on several issues from demolitions to nursery admissions — calling them “illegal.”

The title of the report in the Hindustan Times reads: “Supreme Court raps Delhi High Court activism.” The report in the Hindu prefers to adopt a less sensational reporting style, and also opts for longer quotations from the judgment.

I tend to be skeptical of news coverage of important court decisions in India, and sought to read the full text of the judgment. Fortunately, the full text of the judgment in the case, titled Divisional Manager, Aravali Golf Club v. Chander Hass (“the Aravali Golf club case”), is available on JUDIS here. After reading through the decision, I cannot help thinking that the newspapers are justified in making a big deal of the decision, and its implications. There are indeed many singular aspects of this decision.

The facts at the heart of this case are seemingly innocuous and my first impression was that this was what is referred to as a “typical service” matter. The case arose out of an appeal from the decision of a single judge of the High Court of Punjab and Haryana in litigation relating to an employment dispute. The Supreme Court judgment is quite a short one, extending to 41 paragraphs. The Mathur-Katju bench sets out the basic facts and its decision on them (which consisted essentially of holding that the single judge of the High Court of P & H was wrong, and reversing his decision) in the first 16 paragraphs. The 'dramatic action' that is the focus of the news-reports begins at para 17, which reads as follows:

17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.

In paras 18-40, the Mathur-Katju bench expands on this theme, and draws upon an eclectic array of sources (prior decisions of the Indian Supreme Court; a quotation from Montesquieu; the views of retired Chief Justices, JS Verma and Anand; and several U.S. Supreme Court decisions) to buttress its central argument. In the process, as emphasized in the newreports, the Mathur-Katju bench called into question specific decisions of the High Court of Delhi (at para 27) and two decisions of the Supreme Court (at para 28, referring to the Jagadambika Bal and Jharkhand assembly cases).

The Mathur-Katju decision should be viewed as a follow-up to Justice Katju’s decision in the Bisht case (May 2007), where he had outlined a similar argument, relying at times upon the similar reasoning and the same sources (see this previous post which provides further details about the case). The Bisht case saw a spirited dissent by Justice Sinha; this time around, Justice Katju seems to have found a sympathetic ally in Justice Mathur.

What is unusual about this case is that a division bench of the Supreme Court has, arguably without justification or cause (since the case before the Court had no factual or direct legal connection to the Supreme Court decisions that were disparaged), called into question the correctness of larger bench decisions of the Supreme Court. This is the aspect that is focused upon in this news-report in the HT, where, ironically, former Chief Justice Anand is quoted as expressing disapproval of the ruling in the Aravali Golf Club case on this score.

Another striking feature of this ruling in the Aravali Golf Club case is that it calls into question the validity of several decisions of the High Court of Delhi (the HT has this short piece identifying these cases in greater detail), some of which are, to my knowledge, still pending. Once again, the facts that gave rise to the decision in the Aravali Golf Club case have no clear connection to the decisions of the High Court of Delhi that were criticised in it. While the Supreme Court is fully entitled to castigate the reasoning in decisions of High Courts that are properly before it, the wisdom of offering unsolicited advice on the legality of decisions of High Courts that are either being implemented or have not yet being challenged on appeal, surely is questionable, to say the least.

There is, therefore, considerable irony in the fact that the Mathur-Katju bench, in making its case for judicial propriety, is itself open to the charge of having breached judicial norms. Justice Katju is fast emerging as the outspoken judicial critic of ‘activism’ among the current generation of Supreme Court judges. In doing so, he carries on a long tradition, that dates back to the earliest years of the history of the Supreme Court. Whatever one thinks of the merit of his views, the mode that he (in common with Justice Mathur) has chosen for expressing his views is generating a fair bit of controversy. In the past, Justice Katju has used extra-judicial fora to express his controversial views that are somewhat out-of-step with mainstream judicial thinking (see this post outlining his relatively bold views on current contempt laws). One may wonder why he did not choose a similar vehicle for expressing his views here - while they would still have generated controversy and debate, the reasons would have more to do with their substance than with the process concerns that dominate here.

The judges who decided the two named Supreme Court decisions in the Aravali Golf Club case have since retired. I suspect that the real focus of the Aravali Golf club case is upon decisions that continue to emanate from the Supreme Court while exemplifying the judicial philosophy which the Mathur-Katju bench is strongly critical of. It will, therefore, be interesting to follow the reactions of other judges to this ruling, especially of those who see themselves as constituting the more 'activist' members of the Court.

Joining the debate on Arundhati Roy’s ‘Scandal in the Palace’

Personal circumstances have prevented me from being active on the blog. However, I have followed the debate over Roy’s Oct 2007 article in Outlook as it has unfolded here. My purpose in this post is to comment on two specific criticisms about Roy’s analysis that have been advanced by Vikram and others on this blog. The full discussion of Roy’s article in previous posts is available, in chronological order, here, here and here.

I have always been struck by the extreme reactions generated by Arundhati Roy’s writings on some of the most significant public issues of our time over the past decade. Even if I haven’t always agreed with the full extent of her argument in her several essays, I have invariably learnt something new from her pieces, and have come to admire her ability to break down often complex issues into clear specifics which are intelligible to audiences beyond those who are already familiar with the issues in question. She displays a skill in focusing on the central issues at stake, and then communicating her own argument in a forthright (often audaciously so) and compelling manner to her audience. By taking on the role of a public intellectual, she runs the risk of making generalizations and oversimplifying issues, but in doing so, she generates interest in the issues she focuses on amongst a much larger audience than would perhaps have come to the issue in the normal course. She is often polemical, and provocative, but those are, to my mind, the standard devices that people who seek to highlight issues adopt. While some of her tone would be objectionable in an academic article, her purposes are clearly beyond those that academics typically aim for, and are justifiable as tools employed to garner public attention on pressing issues.

My sense is that some of the vitriolic reaction is generated in part because people disagree with her politics, or see her as lacking either the standing or qualifications to raise those issues. This is evident in the general tone of the comments she elicits, even from people whom we otherwise regard as sober and scholarly commentators. Recall in this respect, Ramachandra Guha’s blistering attack on her involvement with the Narmada Bachao Andolan in 2000. Guha’s diatribe in turn generated a debate (some of which is collated at this link) and I do not want to revive that here. Back when I first read Guha’s article, the most troubling line for me was in its concluding paragraph, where he asserted that “we would all be better off were she to revert to fiction.” Apart from the illiberal sentiment it conveyed, Guha’s more troubling insinuation was that Roy was unqualified to comment on issues of environmentalism (on which, presumably, only people - such as Guha himself - with an extensive academic and/or practical involvement were entitled to hold forth). We may live in what some have termed an age of specialization, but this argument has dangerous anti-intellectual overtones which must be resisted. By this logic, someone else could well advise Guha to stick to writing, for instance, only about the cricket habits of Victorian Englishmen. Imagine what a loss to public discourse that would result in.

I have dwelt on this point because I see shades of a similar logic being employed in the debate that has ensued on this blog. Vikram and other commentators have explicitly questioned: i) Roy’s understanding of jurisprudence (it is claimed that her comments betray a lack of understanding of the complicated jurisprudential nuances of the idea of the rule of law) and ii) her analysis of the trajectory of the Supreme Court’s record in PIL cases. The argument is that on both these issues, Roy’s lack of legal training may have led her to reach either false or misguided conclusions.

My purpose in this post is to demonstrate that on both these points, Roy’s views are in good company, as legal scholars with impressive credentials (I emphasise this since to me this is basically a debate about Roy’s qualifications to comment on legal issues) have previously made the arguments that Roy raises in her Oct 2007 piece.

i) Roy’s views on PIL

I start with the issue of PIL. In this and in more recent pieces, Roy has argued that while PIL had noble and high-minded beginnings, it has, over the last 15 years or so, taken on a different character. In this new phase, Roy asserts, the judiciary’s own authority to decide public issues has taken centre-stage, displacing the interests of the original beneficiaries of PIL cases. As Dilip recognizes, this is an argument that essentially echoes Prashant Bhushan’s critique of recent trends in PIL cases. There are others (such as Usha Ramanathan) who have offered a similar prognosis, and these are figures who cannot be accused of being ignorant of the full extent of PIL jurisprudence.

No less a figure than Professor Upendra Baxi has, for more than a decade now, been making the argument that PIL in India has undergone a “counter-revolution” that has caused it to move away from its progressive origins. Amongst pieces that are available online is one that is titled “Structural Adjustment of Judicial Activism.” (The title of the piece indicates that Roy is not the only person who is ignorant of the Bank’s internal changes in terminology for its projects and themes). In it, Baxi makes the argument that pressure from international financial institutions may well be one of the factors that has influenced such a “counter-revolution” affecting the nature of the Supreme Court’s PIL jurisprudence. Here are extracts from the piece which predate Roy’s argument in her Oct 2007 outlook piece (the extract is from pages 26-27, while the examples he addresses are at pages 23-26):

In the halcyon days of the birth and growth of the constitutional implosion of forms of social action litigation, I was moved with a degree of justifiable co-authorial pride to say that the Supreme Court of India has at last become the Supreme Court for the Indian impoverished. The five instances that I here mention usher in what may be accurately named as judicial counter-revolution proceeding via the structural adjustment of judicial role, function, and power.

The apex Court no doubt sincerely remains animated by a fine solicitude that promotes and protects in some very complex moves, human rights of the globalizing Indian middle classes. In this, its activist performances remain truly impressive. Granting all this in the fullest measure, it still needs saying that forms of structural adjustment of judicial process and power enormously short-changes the constitutionally worst-off peoples. (Emphasis added).

Another scholar who makes a similar argument is Balakrishnan Rajagopal, who has built up an impressive record of scholarship analyzing the recent jurisprudence of the Supreme Court of India. In a recent piece whose very title echoes Roy’s central argument: “Pro-Human Rights but Anti-Poor?: A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective.” The abstract sets out the main argument of the piece:

In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon.

The Rajagopal piece has the added advantage of discussing details of specific cases from the original and more recent phases of PIL which seek to demonstrate the truth of his claims. Studying these cases will also disprove the claim of one of our commentators, “oskaladden” that there is nothing spectacular about the record of the Supreme Court of India which sets it aside from cases decided by courts in the US, Germany or Israel. To my knowledge, there is no court in the world today which has taken on the range of issues that the Indian Supreme Court has, and there are good reasons for such avoidance, which our own court may do well to reflect upon. I have provided references to two scholarly works, but there is a growing body of legal scholarship which documents the trends that Roy adverts to.

ii) Roy’s views on the Rule of Law

The thrust of Roy’s views on the Rule of Law is contained in this extract from her article:

The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they're designed to protect.

Vikram and Aditya Swarup (one of our regular commentators) find this to be evidence of Roy’s lack of familiarity with the vast body of jurisprudential scholarship which discusses the concept of the Rule of Law. While it is true that Roy does not cite the usual suspects who crop up in legal discussions of the rule of law, this does not necessarily mean that her analysis is incorrect.

It is interesting that Roy specifically cites the World Bank’s role in promoting a particular conception of the Rule of Law. While Vikram relies on his personal experience to rebut her views, the fact remains that there is a considerable body of scholarship which supports Roy’s critique. Indeed, the policies of the World Bank and other aid organizations are now the subject of a sub-field of ‘law and development’ studies which focuses, among other things, on the manner in which the World Bank has been promoting legal and judicial reform across the developing world since the 80s. This is done through multi-billion dollar projects that seek to implement a particular conception of the Rule of Law. Scholars who have focused on such projects have noted that the World Bank’s conception of the Rule of Law has very specific components, which do not fully capture the substantive components of conceptions of Rule of Law.

I cite and provide links to two scholarly works that help appreciate the argument that Roy makes in her Outlook piece. In a piece titled “Myth-making in the Rule of Law orthodoxy,” NYU Law Professor Frank Upham argues that the conception of the Rule of Law promoted by the World Bank and other aid organizations in the developing world is inconsistent with conceptions of the Rule of Law that are widely held and implemented within developed nations like the U.S. and Japan. In the piece, Upham provides several illustrations to make good his central claim.

Alvaro Santos’ piece titled “The World Bank’s Uses of the “Rule of Law” Promise in Economic Development” is more directly relevant to Roy’s critique. The article itself is part of a fascinating recent book by a group of leading Law and Development scholars. Santos, who now teaches at Georgetown Law School, first sets out the dominant understandings of the idea of Rule of Law in traditional jurisprudential theory. After examining the views of ancient scholars such as Aristotle, Montesquieu and Locke on the Rule of Law, Santos moves close to our times, and analyses ideas canvassed by A.V. Dicey, and more modern scholars such as Hayek, Joseph Raz and Amartya Sen among others. He concludes as follows:

Scholars writing about the rule of law rely on these and other sources for authority on what the concept means. There is however, little agreement on how the conceptions of these different authors and their positions relate to one another. Some scholars have noticed the ambivalence or vagueness of the term and the multiple ways in which it maybe deployed by different actors for a variety of purposes.

In the rest of the piece, Santos argues that the innate ambiguity of the concept of the Rule of Law has enabled the World Bank to pursue a host of different (often contradictory) objectives in its legal and judicial reform projects over the past two decades. In so doing, the Santos piece, like the Upham piece I cited earlier, bears out the truth of Roy’s assertion that the Rule of Law is a concept that has very little agreed content, and may vary from one context to another. Both Upham and Santos would, I have no doubt, endorse Roy's extracted conclusions about the concept of the Rule of Law.

I hope this overly long post demonstrates that Roy’s critique in the Outlook piece is grounded in (or finds support from) legal scholarship, both domestic and global, on the specific points raised in discussions so far. Whether we find Arundhati Roy’s views on particular issues persuasive or not depends on our own conceptions of politics, and our perception of the issues she focuses upon. I do not, however, see what is erroneous or unsophisticated about Roy’s legal analysis in this piece. Indeed, if one were to focus on her views on contempt of court that she outlines in the main part of her article, one cannot help but admire the succinctness with which she puts forth her argument and criticism.

Some background information and thoughts on angry bar-bench exchanges

In the previous post, V. Venkatesan drew our attention to the exchange between Additional Solicitor General Vikas Singh and a Supreme Court bench hearing the 'Delhi sealing case'. In doing so, he emphasised the unusually aggressive words traded between ASG Vikas Singh and Justice Pasayat. The two people who have commented on this post so far have expressed disapproval of this incident, and appear to place more of the blame on the law officer involved.

As it turns out, the two main protagonists appear to have a history of such aggression. As this piece in the Hindu, dated April 29, 2007 points out, they had clashed earlier, in the longstanding Forest case. There, while objecting to what was perceived as unwarranted judicial interference in the making of policy decisions by the government, ASG Singh is quoted as saying:

"There is no judicial emergency provided under the Constitution to take over the functions of the Government. "

The Hindu piece further describes the ASG's exchange with the bench as follows:

"Seeking to vacate the stay [issued by the Supreme Court upon a notification of the Union Ministry of Environment and Forests], Mr. Singh literally questioned the court's role in monitoring the "forest matter" for nearly a decade.

"It is not as if only the Supreme Court can protect the forest cover," he said. He reeled out figures to show that there was no depletion of forests, thanks to the enactment of the Forest Conservation Act and not because of the court's intervention. It should not pass orders on assumptions or be guided by other factors.

The Bench replied, "We have no assumptions, nor we are guided. Many things are said these days. We are not concerned about what they say. We will see to it at the appropriate time and say what action is to be taken."

Referring to the stay on the functioning of the FAC, Mr. Singh asked on what basis the non-official members appointed to the FAC could be removed once they fulfilled the requisite qualifications.

He wondered how a stay could be granted when there was no petition challenging their appointment. The court could not assume the role of the Government when a committee was validly constituted."

More details about the case can be found in the rest of the Hindu piece. Though the description of the case is not clearly set out, the piece seems to indicate that the bench comprising Chief Justice Balakrishnan and Justices Pasayat and Kapadia took the ASG's submissions seriously and moderated the earlier order. However, this story in the Indian Express dated July 2007 suggests that ASG Singh was subsequently taken off the case as a direct result of his having adopted such an aggressive tone in the hearing.

The common judicial personage in both these exchanges is Justice Pasayat who, as we have noted earlier on this blog, has a strong claim to being the most activist judge on the present Court. It is not clear whether ASG Singh is following instructions in taking such a hard line stance against judicial interference in policy matters, though the presumption would be that he is. His strong assertions may well be a reflection of the government's view that for the reasons that V. Venkatesan has identified in his post, the Court should not press on with this issue right now. There seems to be more to this issue than meets the eye, and the coming days will probably reveal more about this issue.

On the subject of bar-bench exchanges, I am all for civility and agree that the bar bears a higher burden to ensure that the two groups treat each other with respect. One is reminded of the V. C. Mishra episode, and lawyers certainly should not get away with trying to browbeat judges. However, focusing on the two cases where ASG Singh has taken such an aggressive stance, and bearing in mind the fact that Justice Pasayat does not appear to the meekest of judges himself, I cannot help wondering about the merits of the issues advanced by ASG Singh. I leave aside for now the tone he adopted, of which I do not approve, and which may have a personal edge given his run-ins with Justice Pasayat. Yet, the two cases seem to reflect clear instances where the Court had no real, legal basis for the judicial actions it proposed to undertake. Should we also not be focusing on the substantive issues at stake in these cases?

Legal commentators have for long acknowledged that the Indian Supreme Court has adopted an extremely cavalier approach towards grounding its decisions (particularly those in PIL cases) in hard law (whether statutory, administrative or derived from precedents). In most such cases however, the Court has been given a pass since it was perceived to be acting in the larger public interest. These two cases involving ASG Singh do not, however, fit squarely within the paradigm of clearly justifiable cases where the legal basis of the Supreme Court's adventurism can be treated casually. Especially in the ongoing sealing case, there are serious questions of law involved, especially those affecting the rights of underprivileged sections of Indian society. Perhaps it is time to focus on the merits of ASG Singh's claims, beyond the tone adopted by him to espouse them.

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.

Searing critique of an ongoing slum clearance drive in Delhi

Yesterday's edition of the Hindustan Times featured a biting indictment of the slum clearance policies of the Delhi government as well as recent orders issued by the Delhi High Court. Authored by Bela Bhatia of CSDS, Delhi and the noted economist and social activist, Jean Dreze , the piece focuses on an ongoing drive in Sanjay Basti, a squatter settlement in Timarpur, North Delhi. As they point out, the irony of the situation is that the residents of Sanjay Basti have a good case in law, but that will not help them avert their impending fate:

"About two weeks ago, a terse notice appeared on a few walls in Sanjay Basti, a squatter settlement in Timarpur, North Delhi. Posted by the Central Public Works Department (CPWD), it directs the residents to vacate by April 27, or face demolition soon after that. The notice does not explain the purpose of this forcible removal, or specify the area to which the order applies, or mention any relocation plan. Nor does it provide a contact number where further details might be sought — so much for the right to information.

... In common parlance, Sanjay Basti is a ‘slum’ or ‘encroachment’, but these pejorative terms fail to convey the real nature of this settlement. Most of the residents have been there for 20 years or more, and they have had time to transform their humble dwellings into real ‘homes’. Without much help or subsidies, they have made thoughtful use of every inch of space to improve their environment, often by recycling middle-class ‘waste’. Their houses are tidy and functional and, what is more, they have character. In this respect, this ‘slum’ compares favourably with the somewhat dull lower-middle-class quarters across the road, built at considerable public expense. As a form of low-cost urban housing, Sanjay Basti is not doing badly.

... ... ... In principle, Sanjay Basti is well protected from arbitrary demolition under existing policies and laws. The Delhi Laws (Special Provisions) Act, 2006, prohibits any slum demolition for the time being unless the land is required for a “specific public project”, which is conspicuous by its absence in this case. Indeed, persistent enquiries from countless offices failed to uncover any specific reason for the demolition of Sanjay Basti.

Further, the Delhi Master Plan 2021, which has statutory force, declares and mandates a policy of in situ upgradation or relocation as per strict specifications (provided for in the Plan itself) of all slums and “jhuggi-jhopri clusters”, and a continuance of these settlements in the interim. The impending demolition of Sanjay Basti violates this Master Plan as well as the Delhi Laws (Special Provisions) Act, 2006. For good measure, it is also contrary to the slum policy of the Municipal Corporation of Delhi (MCD).

These laws and policies, unfortunately, are being overridden by reckless High Court orders aimed at ‘cleansing’ the city of settlements of this kind. Indeed, Sanjay Basti is only the latest target in a long series of slum demolitions carried out under pressure from the Delhi High Court and its offshoots — notably the commissioners and monitoring committees appointed to oversee the progress of demolition orders.

These orders are based on the notion that slums are parasitical settlements that tarnish the urban environment. They overlook the fact that slums serve an essential economic purpose: they provide low-cost housing to masses of workers who ‘service’ the city, and for whom no provision has been made in urban development planning. For many of them, it would be impractical or expensive to commute long distances from the outskirts of the city. For instance, street vendors and roadside workers (barbers, tea-stall owners, cycle mechanics and so on) need equipment that would be difficult to carry back and forth. Similarly, it is the short distance between work and home that enables many women to work as part-time domestic helpers in the neighbourhood even as they continue to handle child care and other household tasks.

Slum demolition drives also overlook another important fact about squatter settlements in Delhi: they occupy very little space. Indeed, squatter settlements in Delhi cover barely one per cent of the total land area in the city. This point can also be appreciated by examining Google Earth’s high-resolution maps of Delhi. It is a striking fact that slums are virtually invisible on these maps. The reason is that squatter settlements are tucked away in the nooks and crannies of the city, too small to be visible on aerial maps — even detailed maps where single trees can be spotted.

On this one per cent of the total Delhi area live some three million people who keep the informal economy going and for whom no shelter provisions have been made. When the situation is seen in this light, the case for removal looks much weaker than when slums are regarded as an eyesore and a nuisance. Would it really be unwise to allocate one per cent of the land for in situ improvement of existing slums, and spare the trauma of forced eviction to millions of people, except possibly when essential public purposes are at stake?"

Hopefully, the Op-Ed will serve its desired purpose of getting the authorities involved to at least ensure that they comply with the requirements of existing law before proceeding to act. This particular instance also draws attention to the trend of cases highlighted by the recent editorial of the EPW which should lead to a close examination of the changing nature of PIL in India, and a proper assessment of its impact. (click here to link to the post which discusses this issue and also contains the link to the editorial).