Profiles in Courage: Lawyers who defend unpopular clients

Over the past year, we've seen several instances where lawyers have faced pressure when they defended unpopular clients, either from the mass media or, worse, from lawyer associations. This issue has arisen, for instance, in the context of the Manu Sharma case, the Nithari murders, and when lawyers in U.P. 'banned' legal representation for those accused of crimes of terrorism. These episodes resulted in some commentary in the media, as reflected in posts on this blog here, and here. More recently, V. Venkatesan drew attention to the analysis offered by AG Noorani which appeared in the EPW.

The issue has arisen again, thanks to the Bombay Metropolitan Magistrate Court Bar Association's resolution barring its members from representing Mohd. Ajmal Kasab, the sole surviving assailant in the Mumbai attacks of November 26. This recent post collates some of the commentary inspired by the episode.

The normative arguments involved - at least for lawyers well-schooled in the demands of the rule of the law - are clear enough. Here is a piece that appeared in Livemint yesterday which profiles several such individuals who take on the thankless task of actually defending such unpopular clients. It documents the challenges that such lawyers face, which regrettably includes hostility from people who should know better: their professional colleagues.

(hat tip: Anuradha RV)

Tackling corruption in the higher judiciary: Interesting developments

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

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

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

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

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

SLAPPs

Strategic Lawsuits against Public Participation is a well researched and analysed concept in the US. Sunita Narrain discusses its use against activists in India in this article which raises several other important issues:
'the pesticide industry through its associations has filed countless cases against activists and scientists, but with an important difference. These cases derive from what is known in the us as slapp —acronym for ‘strategic lawsuits against public participation’. These are ‘different’ because the corporation (or its front organisation or lawyer) uses it not to get justice, but to threaten, intimidate and gag. The cases are filed not against institutions that can defend their interests but carefully target individuals and, in particular, professionals who refuse to prostitute their science to suit industry. The companies who file slapp cases rarely win in court, but make the defendants spend a huge amount of time and money running to the courts to fight the case. This harassment discourages others from petitioning government on public issues. Industry’s business is served.'

Rajeev Dhavan also discusses SLAPPs in this article. I have written about multiple litigation merely as a tool for harrassment on this blog and elsewhere in the context of artistic freedom - but the basic idea is the same. The cases are filed not to secure any result, but use the process as punishment.

New issue of the German Law Journal on India: Vol 9 No. 3 (March 2008)

I came across this almost by accident, and found some interesting academic articles on a variety of legal issues: debates over the Uniform Civil Code, mediation in India, law books in the Hindu legal tradition, India's policy on climate change, and other topics. Many of the scholars are familiar figures, who have previously written on Indian legal issues. At least some of our readers may find the fare on offer stimulating. Here is the link to the issue: if your internet connection enables it, I would recommending clicking on the PDF links, which are more readable. (I've included the number of the issue in the heading, so that once the journal moves this to the archives, it can still be located in future by using the volume number).

Yogendra Yadav on Justice SL Sinha

I didn’t notice this earlier, but today’s issue of the Indian Express carries another tribute to Justice JL Sinha, authored by Yogendra Yadav of CSDS. Like that of Shanti Bhushan, which was the subject of the previous post, Yadav’s tribute has a personal touch to it (although he never met the judge). Here is what Yadav has to say on the significance of Justice Sinha’s most famous judgment:

Perhaps the real significance of Justice Sinha’s judgement was that it conveyed to an ordinary person what ‘rule of law’ meant. This was not the first time that the judiciary was passing an order to the dislike of the political masters. But the act of unseating the prime minister signaled the rise of constitutional institutions as independent actors in our democracy: the Allahabad High Court’s judgment was followed by Justice H.R. Khanna’s celebrated dissent during the Emergency and the less remembered but no less honourable role of the Election Commission during the 1977 elections. This was the precursor to the assertion of institutions like the Election Commission and the judiciary in the 1990s. The consequences of this assertion are yet to unfold fully, but it may be safe to say that the constitutional design of a political executive kept in check by a set of independent institutions was triggered by Justice Sinha’s remarkable judgement.

The most remarkable thing about the judgement was how unremarkable it was as a piece of judicial pronouncement; it was a simple verdict on technical grounds, without any rhetorical flourish. In that Justice Sinha was very much like Justice Khanna, who also passed away recently. Both of them were not known for their erudition or path-breaking interpretations. Nor were they popular for their pro-people activism. They were anything but flamboyant; not for them the highly publicised tongue-lashing at government officials that is becoming common in the courts now-a-days. After retirement they quietly faded from public life. But their honesty and courage of conviction allowed them to stand up when many legal luminaries and activist judges had surrendered.

As he nears the conclusion of the piece, Yadav draws attention to the contemporary relevance of his musings:

Tomorrow (March 23) is the anniversary of the end of Emergency, marked every year by the People’s Union for Civil Liberty in the presence of a small group of civil liberty activists. Such a group might use the departure of these two heroes of post-independence India to ask some basic questions about our judiciary: as our judges acquire more and more power, including the unprecedented power to appoint their successors, are more and more judges acquiring the courage of conviction that match their powers? Can the public trust every judge to display the same indifference to power — be it political leaders, film stars or corporate giants — that was displayed by Justices Sinha and Khanna? We need to draw upon their honesty and courage to begin to debate this question in public.

Shanti Bhushan on the passing of another courageous Judge

We've recently been discussing what makes for greatness in a judge on this blog. This post is a continuance of that theme. In a recent tribute to Justice Khanna, Justice Iyer made a passing reference to his own role in the series of events that led to the imposition of an internal Emergency in India in 1975. He did so by narrating how he had, as the vacation judge of the Supreme Court, stayed the judgment of Justice JL Sinha setting aside the election of Indira Gandhi. Today’s Indian Express carries a tribute to Justice JL Sinha who passed away recently at the age of 87, which is authored by the eminent Supreme Court lawyer, and former Law Minister, Shanti Bhushan. Here is a sampling of Shanti Bhushan’s views:

In his foreword to the book, The Case that Shook India, Justice Hidayatullah compared Justice Sinha with Judge Sirica of the Watergate case, who was responsible for President Nixon’s downfall. He also complimented Justice Sinha in that foreword saying that his own approach in the Indira Gandhi case, by and large, would have been similar.

Justice Sinha was a judge with the highest integrity, objectivity, ability and judicial rectitude. He had not only set aside the election of Mrs Gandhi on the grounds of corrupt practices but also disqualified her for six years. As his judgment was subject to an appeal to the Supreme Court, he promptly stayed his order as soon as an application was made on behalf of Mrs Gandhi.

His judgment was an act of great courage. This courage was in line with the courage shown later by Justice H R Khanna of the Supreme Court who also died recently. The courage of these two great judges was in clear contrast to the judgment of other judges of the Supreme Court in the ADM Jabalpur case in which four judges of the Supreme Court except Justice Khanna declared that during the Emergency there was no right to life of liberty and even if people were shot illegally, the courts could not intervene.

Several commentators on this blog have reiterated the lament of many scholars over the disturbing paucity of biographies and autobiographies of Indian judges. For now, these short newspaper articles will have to do, but one hopes that the genre of judicial biographies (which has a long history in the US, and is recently being pursued quite aggressively by University Presses in Canada) will be developed by historians and legal scholars in India. Given the pivotal role played by judges of the higher judiciary in constitutional politics in India, the continuing neglect of this genre will only lead to the impoverishment of scholarly analyses of both politics and law in India.

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).

The reach of the Indian State and Legal System in Rural India: Findings of an MIDS study

Today’s Hindu features an article by two academics from the Madras Institute of Development Studies (MIDS) which reports the findings of an interesting study conducted by the institute. The question the researchers were concerned with was the reach of the Indian state in rural India, and their report focused on the role of panchayats in three states (West Bengal, Tamil Nadu and Karnataka). Although the empirical and research basis for the study seems thin (a fact that the authors draw attention to at the outset), its conclusions suggest that the importance of panchayats may be growing owing to a number of factors. The study uses techniques of ethnography, and the short overview of its methods, contents and conclusions provided in the article make for interesting – and intriguing – reading. (The full paper, if available, should make for even more interesting reading, but the website of the MIDS does not seem to provide links to the listed working papers). The authors make a compelling argument that the issue is crying out for far more elaborate study and analysis.

Although Panchayati Raj was institutionalised by the 73^rd Constitutional Amendment more than fifteen years ago, legal scholars have not focused upon this issue, especially in more recent years. As the article suggests, observers of - and participants in - India’s political and legal system may be ignoring panchayati raj institutions at their own peril.