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.

Unenforced legislations - reconsidering AK Roy

In a recent post on a related matter, I mentioned the judgment in AK Roy:

'In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.'

It is very interesting to compare AK Roy and several subsequent cases which have taken the same route with a British case decided by the far less 'activist' House of Lords:

In Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) the House of Lords held that it was unlawful for the Home Secretary to introduce changes to a scheme which were incompatible with an Act of Parliament. Parliament enacted a provision for compensating victims of crimes, with a clause empowering the Secretary of State to bring it into force. The Secretary not only did not bring it into force, but also issued an order instituting a less generous scheme. The majority held that although it was within the Secretary's discretion to decide when it was appropriate to bring the law into force, he was under an obligation to keep the matter under continuing review. The institution of the less generous scheme was a failure of this duty since it was clear that the Secretary did not intend to bring the law into force at all, and thereby frustrated Parliament's will.

The doctrine of reasonable expectations also played a role. To quote Lord Brone-Wilkinson:

"Although the victim of a crime committed immediately before theWhite Paper was published had no legal right to receive compensation inaccordance with the old scheme, he certainly had a legitimate expectation thathe would do so. Moreover, he had a legitimate expectation that, unless therewere proper reasons for further delay in bringing sections 108 to 117 of theAct into force, his expectations would be converted into a statutory right. Ifthose legitimate expectations were defeated by the composite decision of theSecretary of State to discontinue the old scheme and not to bring the statutoryscheme into force and those decisions were unlawfully taken, he has locusstandi in proceedings for judicial review to complain of such illegality."

Interestingly, both the majority and the minority employed separation of power arguments. The majority held that it was for the Parliament to repeal a law, not the Executive. The minority reminded the Court of its own limitations.

The majority opionion makes sense. There are several instances where it is quite clear that the Executive has decided never to implement a law, like the constitutional amendment in AK Roy. It has thereby frustrated Parliamentary mandate - surely the discretion to bring into force does not include the choice of never bringing it into force. It is easy to say that those aggreived should go back to the Parliament - but Parliamentary time is a valuable resource. In any case, the Parliament has expressed an intention and has not said anything to the contrary - shouldn't it generate some obligations on the Executive? In fact, if it is unhappy with a law, shouldn't it be the government's responsibility to go back to Parliament to get it repealed (like it did in the case of the Freedom of Information Act 2002) rather than it frustrating the legitimate expectations of the citizen as well as the will of the Parliament?

Even international law (I think) has comparable rules, where a country which has signed a treaty but not ratified it is nonetheless has the obligation to refrain from any action contrary to the spirit of the treaty.

Perhaps the courts cannot issue mandamus to bring the law into force. But surely there is a middle way, like in Fire Brigades Union? The challenge of coming up with appropriate remedies should not result in the denial of the right itself. In some cases, even a mere judicial declaration of the continuing obligation on the Executive to consider the date of implementation and seeking evidence to demonstrate the fulfilment of this duty might suffice.

Update:
This article discusses a related issue of bringing different provisions into force at different times, creating confusion:
'The Supreme Court was confronted with this predicament in a recent case, J Mitra & Co Pvt Ltd vs Assistant Controller of Patents & Designs.
The judgment described the case as a “classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of the Patents (Amendment) Act 2005”. There were amendments in 1999 and 2002, making significant changes in the patent law. But some sections were not notified, and others telescoped into the later amendments, creating a bewildering situation. This is what happens when different dates are appointed for the coming into force of different parts of the same Act, and the government does not enforce some portions.'

Venkatesan, thanks for pointing this out.

Update 2:
Apparently Aeltemesh Rein v. Union of India decided by the Supreme Court has already upheld a 'duty to consider' similar to that in Fire Brigades Union. I haven't read the case myself yet, but picked this up from a note Vikram sent (thanks) - am I correct in this? Has anyone else seen this case?

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

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

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

I will elaborate each of these points below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How ‘activist’ IS the Indian Supreme Court?

The issue dated Feb 23-29 of the EPW has a somewhat intriguing editorial on the Indian Supreme Court. I describe it as ‘intriguing’ because the editorial does not, as EPW editorials typically do, focus on a recent, topical issue. Indeed, many of the events and issues described in the editorial are fairly old ones.

This does not, however, mean that the analysis offered is in any way dated. Instead, the editorial takes a view of things which is quite different from regular editorials in the mainstream press, where the Supreme Court is typically portrayed as a heroic institution that regularly seeks to serve the interests of ordinary citizens by bravely taking on a recalcitrant executive and a somnolent legislature. The EPW editorial in question urges us to consider a different scenario:

[T]he Supreme Court judgments in recent years do not indicate any uniform pattern that would either justify the fears of the other two wings of the troika, or strengthen the hopes of the citizens who may be banking on the judiciary as their saviour.

This is how the editorial elaborates upon this conclusion:

Judicial activism is guided by the principle of selectivity, depending on the value judgment and class biases of individual judges. In fact, some of their verdicts reflect the convergence of the interests of the troika [i.e., the three wings of government] – on matters like reinforcement of draconian laws and prosecution of political dissenters or even innocent citizens, on the plea of fighting terrorism. The refusal of bail to the well-known social activist Binayak Sen (accused of being a Maoist) by the Supreme Court has not drawn any protest from MPs. Afzal Guru’s situation in the Parliament attack case is yet another instance of the collabo­ration of the executive, the legislature and the judiciary in nailing a suspect (since the actual perpetrators of the crime can no longer be apprehended and punished), because of guilt by association – a debatable concept that still rules the archaic judicial system in India.

Here, the editorial refers to the Supreme Court’s dismal track record on issues relating to preventive detention, emergency powers, and national security laws. This record has attracted the attention of seasoned commentators and court-watchers, and has been mentioned in previous posts on this blog here, here and here.

The EPW editorial identifies other crucial areas where the Supreme Court’s activism has been tempered by a spirit of realism and self-interested conduct:

The judges have also not extended their activism in the direction of changing the system. At times, their judgments even appear to acquiesce in the perpetuation of corruption by the legislators – the most shocking instance being the April 19, 1998 Supreme Court verdict in the Shibu Soren case that said that MPs who voted by accepting bribes enjoyed a constitutional immunity from prosecution! Quite understandably this judgment did not create any rift between the legislature and the judiciary

The editorial concludes on a sobering note:

Isolated acts of judicial activism, devoid of any sense of social responsibility and political understanding, but driven merely by individual humanitarian concerns or confrontational instincts, cannot be a substitute for the more important task of cleansing the troika – purging it of criminal legislators, corrupt administra­tors, as well as self-righteous partisan judges.

While I found the analysis offered in the editorial persuasive, some of the cases referred to here are more than a decade old, and a reference to more recent judgments would have helped make the contemporary relevance of this claim more striking. But that is perhaps a harsh quibble.

The editorial poses a challenge to contemporary legal scholars, who should take the EPW’s claim as a hypothesis that should be rigorously tested in empirically grounded research that focuses on the body of work of the Supreme Court across a range of issues where judicial activism has been known to have had an impact on public policy issues in India.

Update: The one topical issue that the EPW editorial does deal with (through a brief reference) is the case of Dr. Binayak Sen, though it is unclear whether that case was the principal motivation for the editorial. Tehelka's issue dated Feb 23 featured a cover story on Dr. Binayak Sen, titled 'The Doctor, the State, and a Sinister Case.' The author of this detailed story is quoted as saying that 'the untenable imprisonment and victimisation of Dr. Binayak Sen, a heroic humanitarian from Chhattisgarh, exposes Indian democracy as increasingly hollow.' I suspect that not everyone reading this piece will agree with the full extent of this claim. However, it is hard not to be moved by the plight of the good doctor, and to wonder about the motivations of the police and other authorities in pursuing this case in the way it has been managed so far. Hopefully, this media attention will draw focus upon the central facts of the case, which has the potential of becoming another test case of the legitimacy of our draconian anti-terror laws.

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.

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.

Reflecting on Sorabjee's response to the Speaker's public lecture

The previous post focused on Somnath Chatterjee's recent public lecture where he seemed to be providing a theoretical and intellectual framework to the current struggles between the Legislature/Executive and the Judiciary, and also counselled the judiciary on its future course of action.

Predictably, the Speaker's strong message has evoked an equally forceful response. Today's Indian Express carries an op-ed by Soli Sorabjee who has long been a defender of the Judiciary, even while he has occupied the position of a law officer of the government. While reacting specifically to the Speaker's comments, Sorabjee also reiterates positions he has canvassed over a considerable period of time, in academic articles and public lectures. His views in this column consist of a mix of the traditional arguments raised in defence of judicial activism in India, as well as newer points relating to the current context. At the same time, Sorabjee attempts a point-by-point rebutall of the views expressed by the Speaker. While the piece should be read in its entirety, I focus on the following portions:

"Remember that it is thanks to judicial creativity or if you like judicial activism, that certain freedoms like freedom of the press, the right to privacy, the right to travel abroad, the right to education, freedom from cruel and inhuman punishment or degrading treatment have acquired the status of fundamental rights. This is because of Supreme Court decisions that certain unspecified rights are implicit in the express enumerated guarantees in the Constitution and can be deduced therefrom. Would any person, including the speaker, seriously quarrel with this innovative judicial technique, which has enlarged the fundamental rights of our people?

... ... ...

Another assumption in the speaker’s lecture is that courts strike down legislation because of disapproval of legislative policy. Far from it. The Supreme Court did not strike down nationalisation of banks because of its disapproval of the policy of nationalisation. Indeed the court rejected the challenge that the legislation was not in public interest. The Act was struck down because of the omission to provide for compensation under the then existing constitutional provision. The Act was subsequently amended and nationalisation went through. The Supreme Court, in its judgment in the BALCO case, has authoritatively ruled that it is not permissible for courts to strike down a policy decision on the ground that it is unwise or unscientific or uneconomic or illogical or that there could be a better policy decision.

Proper research and statistics would establish that in a vast majority of cases the Supreme Court has upheld socio-economic legislation by invoking the doctrine of presumption of constitutionality of a law and also the unreal presumption that the legislature correctly understands the needs of its people.

... ... ...

Mention of ‘we the people’ in the Preamble and the will of the people in passing a law are certainly relevant considerations but are not decisive in constitutional adjudication of the validity of the law in question. What is controlling is the mandate of the Constitution. Suppose by an overwhelming majority a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination by prohibiting employment of women in any section of the armed forces. Are courts bound to uphold such laws, which violate the fundamental rights of workers and women, on the ground that the will of the people must prevail? Such a stand makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution.

Enumeration of a list of erratic orders passed in PIL makes interesting reading but is not an answer to the legitimate exercise of judicial activism in several other cases. Many over-enthusiastic impermissible judicial orders passed by the high courts have been set aside by the Supreme Court, and exemplary costs have been imposed.

The undeniable fact is that in most cases, it is on account of the lethargy or continued inaction of the executive branch that the court is constrained to direct the executive to implement the laws made by the legislature, particularly when such inaction results in violation of fundamental rights. For example, violation of the rights of children working in hazardous occupations or of the fundamental right to live with dignity of the inmates of asylums and so-called care homes.

... .... ... Let us not forget that thanks to PIL, undertrial prisoners rotting in jails for inordinately long periods, inmates of lunatic asylums and care-homes, children working in hazardous occupations have secured relief. Juristic activism in the arena of environmental and ecological issues has led to accountability in the use of hazardous technology and has yielded salutary results. For example: court’s directions regarding the use of CNG. If this be judicial activism, so be it. The executive may bemoan the court’s directions compelling it to discharge its obligation of law enforcement. The citizens rightly rejoice, because thanks to activist judicial intervention, some semblance of governance and decency in areas affecting their lives has been achieved.

... ....Vigorous exercise of judicial review, in other words judicial activism, largely depends on the prevailing situation in the country, its laws or absence of laws, the level and quality of public administration and the availability of means of redress. It is not static. It cannot be strait-jacketed into a rigid formula. The extent and intensity of judicial review depend on the subject matter of the legislation. In case of socio-economic legislation, judicial activism should be minimal. Where legislation violates fundamental rights of equality, life and liberty, and freedom of expression, judicial activism is not an option but a necessity if the fundamental rights of the indigent and the exploited are to be made living realities.

Alas! We do not live in a perfect world in which there would be no occasion for the judiciary to order the executive to perform its duty of implementing the laws. In this imperfect state of affairs, if the judiciary sometimes exceeds its bounds by passing certain orders, the same should be corrected, but that is no reason for questioning the legitimacy of judicial activism and advocating judicial restraint to the point of judicial abnegation. All said and done judicial review is the heart and soul of our Constitution. "

In making these remarks, Sorabjee appears to be responding not only to the Speaker's lecture, but also to comments made by other politicians in the aftermath of the Thakur order, about the supposed anti-democratic nature of judicial review. Despite his forceful tone, Sorabjee does not, however, endorse judicial activism in general, and concedes that the role of courts in bringing about socio-economic reforms should be limited. But, he points clearly and forthrightly to the 'elephant in the room' that Chatterjee's lecture sought to ignore - that the fundamental problem in Indian governance is not so much that the judiciary is over-enthusiastic, but that the institutions which should be governing are, for a variety of reasons, unable to do so.

In the course of his comments, Sorabjee makes the oft-cited claim that PIL has been a panacea for the Indian populace. This claim in increasingly being contested, as it is becoming evident that many PIL orders have either been ignored or under-implemented. There is also the perception among social activists that the changing nature of PIL (which is increasingly being initiated by the middle class for causes that serve its interests) is causing it to become a tool against the interests of its original constituency: the poor, disempowered and oppressed communities among Indians. Those who disagree with Sorabjee's characterisation of PIL (or would seek to moderate his enthusiastic portrayal of it) would subscribe to the views espoused in this recent editorial in the EPW:

"Of late, the judiciary is giving the impression of stepping in to fill the vacuum by often forcing the executive to take action (against the privileged sons of politicians, as in the Jessica Lal case) or compelling Parliament to enact laws (for example, to curb sexual harassment at workplaces). This has encouraged the Indian urban middle class to repose its faith in the new-found concept of judicial activism, and to wish that the judiciary replaces the corrupt legislature and bureaucracy as the benevolent authority. But there is a catch in this wishful belief. Barring a
few recent cases of judicial intervention, which have had some positive effect on governance, the Indian judiciary on the whole has not displayed any spontaneous will to act on behalf of the common people. The success stories, cited above, were the results of long legal battles by the rich relatives of the victims, or campaigns by social activist groups.

Contrary to the image of a magnanimous judiciary, judicial activism is increasingly sliding into injudicious and irresponsible judgmentsheavily loaded against large sections of the poor and marginalised. To quote a couple of instances, thousands of workers have been uprooted due to court orders to shift polluting industries out of Delhi and slumdwellers are facing removal to far outside the city as a result of a Supreme Court declaration that they have no right to notice before eviction or rehabilitation thereafter. In the short-sighted pursuit of delivering justice to some segments, such judgments are creating new long-term injustices for vaster sections of the population. Further, the breathtaking eagerness with which the judiciary has over the past decade upheld draconian laws like the Terrorism and Disruptive Activities (Prevention) Act (in 1994), the Armed Forces (Special Powers) Act (in 1997) and the Prevention of Terrorism Act (in 2004) portends an ominous future for the democratic rights of Indian citizens."

This debate points to the dire need for comprehensive and meticulous quantitative studies of the actual impact and achievements of the PIL jurisprudence of the Supreme Court. For over three decades now, opponents and defenders of judicial activism have used isolated examples to either attack or glorify the phenomenon. The need for detailed studies which help answer at least some of the questions raised seems evident. The late Professor Sathe is known to have spent several years collecting the data for precisely such a project. One hopes that the project has not been given up after his passing.

An aside: One of the interesting parts of the Chatterjee-Sorabjee exchange is how they have both sought to draw support from the views and judgments of former Chief Justice J.S. Verma to buttress their own positions. The EPW editorial, by contrast, reminds its readers that Justice Verma is also to be remembered for his contribution in another landmark case:

"A dangerous example of such judicial mindlessness was the 1995 Supreme Court benchverdict in favour of Hindutva which put the seal of approval on the politico-religious philosophy of the saffron brigade. Surprisingly enough, J S Verma, the then chief justice who headed the bench that passed the verdict, was to lament in May 2002 following the Gujarat riots that his judgment was being “misused” by many for narrow interests. In a lecture in Jabalpur recently, justice Verma asserted the need for “greater expertise and self-restraint of the judiciary…eschewing personal predilections and emotive responses.” A belated realisation when the damage had already been done! "

The EPW editorial got its facts wrong on one small point : at the time when the decision in Dr. Ramesh Prabhoo v. Prabhakur Kunte (1995) (popularly known as the 'Hindutva' case) was handed down, Justice Verma was not yet the Chief Justice of India (his tenure as CJI lasted from March '97 to Jan '98). However, the editorial is right in noting that whatever may have been Justice Verma's motivations as the principal author of the decision, it was perceived by the Hindu right parties, and by those who backed them, as a victory for their political views.

Contentious issues beyond quotas: The Forests case

For now, debates on OBC quotas are on hold, as we wait for the Supreme Court's next move on May 08. But it is becoming clear that the quota issue is but one among many that are at the heart of the recent institutional struggles between the Judiciary on the one side, and the Executive and the Legislature on the other.

On April 26, Lok Sabha Speaker Somnath Chatterjee addressed the overall issue squarely while delivering a public lecture. Excerpts from that speech are carried in this column in the April 27 issue of the Indian Express. For the most part, the lecture covers fairly conventional analysis, focusing on the roles of the three wings of government, and quite predictably, making the case that the Indian Judiciary should respect the constitutional powers of the Parliament and Executive.

I was drawn to the section where Chatterjee focuses on some recent judicial actions which he considers problematic, though he prefaces that statement by making the reasonable (and necessary) concession that judicial review is of course entirely legitimate. This is refreshing, particularly in view of recent statements by members of other Left parties, which seem to betray a misunderstanding of basic notions of constitutionalism, by asserting that the Indian constitutional regime is one where parliamantary supremacy is the governing rule.

"NO ONE can take exception to any decision in the exercise of judicial review (subject, of course, to the provision of review or appeal, where it lies) invalidating any law or executive action, but where it seeks to lay down some new policy to be adopted or actions to be taken and uses its supposed power to compel executive action on the same without any known authority or procedure, serious questions necessarily arise about the source of such power.

Now-a-days, there are umpteen instances where the judiciary has intervened in matters entirely within the domain of the executive, including policy decisions. Recently, a media correspondent has compiled a list of issues and matters in which the courts have apparently, if not clearly, strayed into executive domain or in matters of policy. He has noted that the orders passed by the hon’ble high court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines.

The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers. The interim order of the Supreme Court in these two cases, to my mind, upset the delicate constitutional balance between the judiciary and the legislature. I feel that these were instances of unfortunate intrusion by the Supreme Court into well-demarcated areas of powers of the legislatures, contrary to the provisions of Articles 122 and 212 of the Constitution. Chief Justice Verma has recently described the orders in the UP and Jharkhand cases as judicial aberrations and has expressed his hope that the Supreme Court would soon correct them."

In the subsequent sections, Chatterjee focuses on the principles of constitutionalism which counsel against such aggressive judicial actions. Again, much of this is trite, and this could well be an abstract academic paper discussing principles without referring to any specific country, because Chatterjee seems to ignore the realities and political factors in India which have led over time to the judiciary adopting such an aggressive position. It is only towards the end of the lecture that Chatterjee implicitly recognises this, when he asserts:

"ALMOST all votaries of judicial activism, including the hon’ble judges themselves, while exercising power in such assumed jurisdiction justify it on the supposed failure of the legislature or the executive authorities in taking proper action to mitigate the people’s grievances or to find solutions to people’s problems."

Chatterjee's response is interesting, because it seems to concede the force of this criticism. He does not seek to refute it, but focuses instead on the judiciary's institutional incapacity to address these problems on its own:

"But with regard to dispensation of justice, how many ordinary citizens of the country, who are oppressed and subjected to various forms of discrimination and denial of rights, particularly women who are victims of torture and exploitation, can have access to the courts, specially the highest court of our country? How many dismissed employees, how many victimised teachers, how many senior citizens, how many disadvantaged people staying in far flung areas of the country who would need to seek justice can approach the apex court of our country? The geographical distance, prohibitive cost of litigation, inordinately long time taken for disposal of matters, discourage or otherwise make it impossible for ordinary litigants to approach the court.

The large number of arrears pending in almost all the courts is affecting the people’s faith in our justice-delivery system. These issues require to be given very serious attention not only by the legislature or the executive but also by the judiciary. One has to admit that in many instances the judiciary (without attributing any fault to it) is not able to cater to the needs of the common people of the country in adequate measure. Now, in such a case, can any other organ of the state take up on itself the right to exercise judicial powers on the plea that judiciary has not adequately been able to do so?"

It is interesting to contrast the Speaker's take on the issue with that of Rajeev Dhavan who addressed the same issues in an op-ed piece which appeared in the April 27 issue of the Indian Express). Dhavan's piece, reflecting his academic background as well his current role as a leading Supreme Court lawyer, provides a historical perspective of the tussles between the three wings of government and lays out four broad categories of judicial actions that he terms "areas of discontent." Dhavan concludes that "[w]e are in the midst of a controversy as big and complex as the property and sovereignty controversies of the Nehru and Mrs Gandhi eras. "

While Dhavan's tone and style throughout the piece is academic and objective, there is one issue on which his comments are quite scathing. This is in reference to the Supreme Court's intervention in the Forest cases, and this is what he has to say:

"Can a case concerning forests go on for years — with decision-making shared with an amicus and a Supreme Court created committee that holds hearings with pride and prejudice as if it were a consultative wing of the Supreme Court."

Interestingly, this is strikingly similar to the argument adopted by the Additional Solicitor General in opposing the Supreme Court's continued intervention in the forest cases. More details of the latest order in the Forest case, including the argument of the ASG resisting judicial intervention, can be found in this newsreport from the April 27 issue of the Indian Express.

Even if the OBC quotas issue gets resolved equably (and there don't seem many signs of that as of now, given the strident statements issued by politicians over the past few days), the leaders of the three main institutions of Indian goverment will have to adopt sagacious steps to avoid a constitutional crisis in the coming months.

Update, May 03: The full text of the Speaker's speech is available here.