The thesis of ‘committed’ judiciary has been abandoned, but its practice continues unabated. That is the real problem, writes RAM JETHMALANI.
A judge is the guardian of the small man and his bundle of rights, which enable him to realise his fullest material, moral and spiritual potential, and expand to the utmost frontiers of his body, mind and soul. No judge must aspire to harmony with the legislature and executive. Every judge must brace himself for a life of tension with both in the intelligent and stout defence of his ward, who needs constant protection against the insolence of unfeeling officials, the venality of politicians and the misdeeds of wicked neighbours and fellow citizens. Every court is essentially a court of wards; the Supreme Court has the entire citizenry as its ward. Our judges need not be sensitive to the oft-mounted attack that they are not elected and are, therefore, unaccountable and undemocratic.
This role of the judge makes one think about elected judges. But the system of elected judges has been tried elsewhere and I believe that it has produced jokes. The most instructive joke that you will find is that in a certain US state, the Democratic Party found a judge paralysed from the waist downwards and invariably, in elections, he won the sympathy vote. He triumphed in four successive elections but before the fifth, a Republican Party official said to his superior, “Sir, we have found a solution to our problem.” He asked, “What is it?” The answer: “Sir, this time we have found a judge who is paralysed from the waist upwards.” It will not work in India anyway.
Economics may have dominated the world most of the time and probably does dominate in some sense even now. But today, politics has overtaken economics in its influence. In the past few decades, all institutions, including the judiciary and of course the Bar, have struggled with the temptations of politics. Judges, like other mortals, are attracted to politics, particularly aspiring ones who consider favours from a ruling party to be stepping stones for upward mobility in the field. Usually, but not always, judges do often violate their oath of administering justice without fear or favour. Favours done have to be returned, feel some. We have therefore to evolve an effective mechanism of insulating judges against politics and involvement in political machinations of the kind that have disgraced some sections in the past not only in this country, but also elsewhere.
Politicians as a class and the executive in power must therefore have no voice in the appointment of judges. The executive is the biggest litigant in cases of citizen complaints of the oft-corrupt misuse of executive powers. Even a good judge appointed by a corrupt minister will not command public confidence. The second judges case, the origin of the present collegium system, was a correct decision, and the current system is vastly superior to the one it supplemented. It was the one that produced the tellingly sarcastic comment, “It has created two kinds of judges — those who know the law and those who know the law minister.”
South Africa, in its new constitution, adopted the model of a judicial commission as the method of selection, which has been operational since 1996. The law minister is formally consulted and he makes his comments upon the appointees or recommendees of the judiciary. The comments of the law minister are considered with respect and attention, but the final word lies with the commission. I am committed to this mechanism as our final solution. I must hasten to explain why.
I agree with the weighty opinion of my erudite friend, senior counsel Anil Divan, in his recent article in The Hindu: “The present secretive process followed by the collegium excludes public scrutiny, violates the citizen’s right to know and leads to diminishing respect for the judiciary.” Some bad appointments produced by this system are also notorious.
While corruption continues to grow like a galloping cancer in every branch of life, the judges seem to reciprocate by producing a strange jurisprudence that only protects the corrupt. The law of contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the common man, not so inhibited, produces an impressive volume of popular corruption folklore.
The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished lawyer and politician, claimed that judicial appointments could not be made without reference to the social philosophy of the judges. The judge, being an important decision-maker, makes decisions that are bound to affect the lives of the people, and his decisions are influenced by his social philosophy. Therefore, independent India should have judges who are “committed” not only to the social philosophy of the Constitution, but also to that of the government. This was controversial. However, Indira Gandhi’s government implemented his views during the Emergency.
Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated. While judges associated with the ruling establishment are invariably appointed, those having any form of association with opposition parties are scrupulously avoided. How successive chief justices, who are supposed to be totally judicial even in the discharge of their administrative function, habitually enter into convenient compromises escapes comprehension. The inevitable answer is the creation of a national judicial commission in which the judiciary, government, opposition, the Bar and academic community have an equal voice. Judges should hold office only during the pleasure of the commission. It should have the power to appoint, transfer and dismiss — of course, in accordance with procedure established by law, or what is also known as due process. The Lokpal may well be a useful addition to the list of participants.
The 79th report of the Law Commission suggested ways to plug loopholes in the existing system of appointment of Supreme Court judges. No one should be appointed a judge of the Supreme Court unless, for a period of not less than seven years, he has snapped all affiliations with political parties and unless, during the preceding seven years, he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice.
The practising Bar is the constituency of a judge. If he cannot retain its confidence, he must gracefully quit office. It is just not true that only weak and obliging judges are popular with the Bar. Members of the Bar know the black sheep on the bench. No wonder, the American Bar Association can, by its adverse criticism, make the mighty president of the US withdraw his nominees for judicial office. A lord chancellor of England admitted that if he made an unworthy appointment, he could not possibly look into the eyes of the lawyers at Bar dinners.
The writer, a lawyer and Rajya Sabha MP from Rajasthan, is a former Union law minister (June 1999-July 2000)
The relationship between “democracy” and “secrecy” has always been debated, and it has been highlighted by the system of judicial appointments. The proposed judicial appointments commission (JAC) seeks to partly answer that question. Under review is the judicial collegium method of appointments, in use since the 1990s (which consists today in the supremacy of five senior-most justices of the Supreme Court, including the chief justice of India), as against the constitutional method in place between the 1950s and the 1990s (where the executive nominated candidates in consultation with the CJI and such other justices as it deemed fit).
Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.
In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change?
Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice Markandey Katju’s recent expose suggests that the CJI is vulnerable to alleged manoeuvring by the prime minister’s office. The justices in the judges cases seemed to think so, given that they accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of five justices.
To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments and transfers, and contemplated a slew of measures on judicial standards, accountability, non-impeachment offences and transparency of the judicial process. The new government is espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister to say that he had justices in his pockets; this is no longer the signature tune of modern governance. Rather, the state now wants a JAC that would avoid the vices of politicians appointing judges, and of the justices appointing their own.
This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till 2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of the Supreme Court members, provided a
process to identify two eminent citizens, and finally culminated in the 120th constitutional amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred, the Law Commission’s report and other reports make compulsory, if dull, reading on this vexed subject.
In a consultation with eminent jurists convened by the Union law minister on July 28, while most went to the extent of saying that the judicial collegium had failed and agreed that the system of appointments needed to be changed, all the “jurists” endorsed the “dominance” of the CJI and his senior companions. If the advice of the CJI and his companion justices is to have an “edge” or “dominance”, how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?
A greater fundamental difficulty is posed by the basic structure doctrine. I have previously argued in these pages (‘Just governance’, IE, June 10) and at a New Delhi consultation that the best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill, considering whether abolition of the judicial collegium offends the basic structure and if it does, how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it clear that the matter can only be settled in a judicial opinion; since the judges cases were decided judicially, no question arises of a mere administrative order by the court.
The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court.
The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has “failed” the nation. Since almost all the leaders of the Bar believe that the judicial collegium has “failed” in drawing the best and brightest to become justices, they should have little difficulty in persuading the court.
The argument against an advisory opinion is that it would take undue time. But the 2G reference was relatively expeditiously disposed; the non-collegium justices would be justified in accelerating the opinion. In any event, the time taken for the reference will be democratically well-invested. The alternative of an adversarial proceeding, where the court may continue via a stay order to make appointments and transfers, scarcely advances the cause. Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.
The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi
The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.
But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.
In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.
In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.
Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.
This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.
“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.
In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.
Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.
Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.
In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.
Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.
He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.
To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.
He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.
Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?
We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.
It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.
If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.
But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.
I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.
This expose is by Justice Markandey Katju, who was chief justice of Madras high court before becoming a Supreme Court judge. He is now chairman of the Press Council of India.
There was an additional judge of the Madras high court against whom there were several allegations of corruption. He had been directly appointed as a district judge in Tamil Nadu, and during his career as district judge there were as many as eight adverse entries against him recorded by various portfolio judges of the Madras high court. But one acting chief justice of Madras high court by a single stroke of his pen deleted all those adverse entries, and consequently he became an additional judge of the high court, and he was in that post when I came as chief justice of Madras high court in November 2004.
That judge had the solid support of a very important political leader of Tamil Nadu. I was told that this was because while a district judge he had granted bail to that political leader.
Since I was getting many reports about his corruption, I requested the Chief Justice of India, Justice RC Lahoti, to get a secret IB inquiry made about him. A few weeks thereafter, while I was in Chennai, I received a call from the secretary of the CJI saying that Justice Lahoti wanted to talk to me. The CJI then came on the line and said that what I had complained about had been found true. Evidently the IB had found enough material about the judge’s corruption.
Since the two-year term as additional judge of that person was coming to an end, I assumed he would be discontinued as a judge of the high court in view of the IB report. However, what actually happened was that he got another one year’s appointment as an additional judge, though six other additional judges who had been appointed with him were confirmed and made permanent judges of the high court.
I later learned how this happened. The Supreme Court collegium consists of five most senior judges for recommending names for appointment as a Supreme Court judge, and three most senior judges for dealing with high courts.
The three most senior judges in the Supreme Court at that time were the Chief Justice of India, Justice Lahoti, Justice YK Sabharwal, and Justice Ruma Pal. This Supreme Court collegium recommended that in view of the adverse IB report the judge should be discontinued as a high court judge after his two-year term was over, and this recommendation was sent to the central government.
The UPA government was at the Centre at that time. Congress was no doubt the largest party in this alliance, but it did not have a majority in Lok Sabha, and was dependent on the support of its allies. One such ally was the party in Tamil Nadu which was backing this corrupt judge. On coming to know of the recommendation of the three-judge Supreme Court collegium they strongly objected to it.
The information I got was that Prime Minister Manmohan Singh was at that time leaving for New York to attend the UN general assembly session. At the Delhi airport, he was told by ministers of the Tamil Nadu party that by the time he returned from New York his government would have fallen as their party would withdraw support to the UPA (for not continuing that additional judge).
On hearing this, Singh panicked, but he was told by a senior Congress minister not to worry, and that he would manage everything. That minister then went to Justice Lahoti and told him there would be a crisis if that additional judge was discontinued. On hearing this, Justice Lahoti sent a letter to the government of India to give another term of one year as additional judge to that corrupt judge, (I wonder whether he consulted his two Supreme Court collegium members ), and it was in these circumstances this corrupt judge was given another one-year term as additional judge (while his six batch mates as additional judges were confirmed as permanent Judges).
The additional judge was later given another term as additional judge by the new CJI Justice Sabharwal, and then confirmed as a permanent judge by the next CJI Justice KG Balakrishnan, but transferred to another high court.
I have related all this to show how the system actually works, whatever it is in theory. In fact, in view of the adverse IB report the judge should not even have been allowed to continue as additional judge.
The system of fixing fees based on the ‘star value’ of the lawyer is a dangerous trend for the judiciary as well as for our democracy
Access to justice essentially means access to a lawyer. The legal profession has a public character. A lawyer is placed between the state and the citizen; therefore, he performs a democratic, libertarian and emancipatory function. The bar is not a private guild. In a celebrated decision in the United States, Justice Nelson rightly said that there is no other relation of life involving higher trust and confidence than that of an attorney and his client (Stockton v. Ford, 1850).
Canon No.12 of the American Bar Association Canon of Professional Ethics warns that “In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.” Wesley Romine reminds us that “if the legal profession is to honor its responsibilities to public service, it is essential that the society which it serves should not view the professional abilities of lawyers as representing avaricious and purely personal efforts to obtain wealth.” In Bushman v. State Bar of California (1974), the demand for excess fees coupled with misrepresentation and an attempt to solicit work was the matter in issue. In that case, following the ratio in re Goldstone (1931), a California Court declared the principle of law: “It is settled that a gross overcharge of a fee by an attorney may warrant discipline. The test is whether the fee is ‘so exorbitant and wholly disproportionate to the services performed as to shock the conscience’.”
Cost of litigation
But rhetoric is not reality. Though there is a lawyer between the state and the citizen, between the lawyer and the citizen, there is often the real obstacle of exorbitant professional fees which in itself forms the major chunk of the cost of litigation. Litigation in the Supreme Court is often a multi-crore affair. It is so in many of the High Courts as well. This is the irony prevalent in the constitutional courts, irrespective of the country’s socialist preamble to the Constitution. Legal aid for the poor does not enable the poor to choose the lawyer, nor the lawyer to choose the poor. Quality advocacy is an expensive commodity in the legal market. In V.C. Rangadurai (1978), Justice Krishna Iyer bothered about the “elitist” character of the profession and said that “its ethics, in practice, leave much to be desired.” Today, the profession has assumed a corporate character. A recent study demonstrates that the Supreme Court is a court too far away from the common man (Frontline, April 20-May 3, 2013). The alienation is not due to geographical or institutional reasons alone. Lawyering, by and large, has become a big industry. The distinction between the profession and the trade is blurred. The pity, however, is that often it lacks even the fairness of trade.
Ms. Esha Saha, Associate Editor at Live Law exposes the practice of senior lawyers charging unbelievably excess fees under various heads like retainer fee, settlement of brief charges, conference charges, appearance charges, reading fees, opinion/consultation fees etc. After indicating the alarming figures of the fees charged, she says, “Law is the most sought after and money spinning career in [the] U.S., but even the lawyers from [the] U.S. are astonished to hear about the fees charged by some of the star lawyers in our country. Indian senior lawyers have come a long way since the days of legal luminary M.C. Setalvad who had fixed a standard rate of Rs.1,040 for special leave petitions (SLPs) and Rs.1,680 for final hearings.”
The tragedy is that what the western democracies start to take as misconduct, is (mis)taken for eminence in a country that discovered and aspired for Gandhian jurisprudence. The cost of good lawyering is too serious a matter to be left to lawyers alone.
Need for standardisation
The difficulty experienced in an assessment of fees and the fallibility of another’s judgment regarding an advocate’s fees does not justify the robbery by the robbed brethren. The proportion between labour and cost is not wholly irrelevant. Corporatism should not annihilate conventional values. Experience, specialisation, value of time and intensity of efforts may be crucial in determining fees. Also, there are general economic criteria like demand and availability, material cost, abandonment of other work, etc. The system of fixing fees based on the “star value” of the lawyer is, however, a dangerous trend for the judiciary as well as for our democracy.
Though there is a lack of standardisation and certainty in many areas of legal remuneration, the levy of “shockingly exorbitant fees” should lead to disciplinary action. It needs to be taken as an action of misconduct that “tends to bring reproach to the profession” amounting to professional misconduct as defined under the Bar Council Rules.
There are state legislations regulating the lawyer’s fees in the subordinate courts and even in the High Court in civil and criminal matters. Often, those are framed by the High Court by invoking power under Articles 225 and 227 of the Constitution. The rules regarding fees payable to advocates in Kerala designed by the Kerala High Court after approval by the Governor is a fine example (Kerala Gazette dated 22.7.1969). It is a tragedy that the practice of law in the constitutional courts is not controlled by any law whatsoever. There is a real need to evolve an Aam Aadmi movement in Indian constitutional courts, where people should be able to ask for fair advocacy as a right.
Classification of lawyers
Senior lawyers are designated by the court. The seniorship is either conferred or granted on application. Section 16(2) of the Advocates Act states that an advocate can be designated as senior if “the Supreme Court or the High Court is of the opinion that by virtue of his ability, [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.” Note that the statute does not insist on any ethical parameter in deciding the question of designation. The prescribed application in some States inter alia asks for income tax details. Behind it, there is an incorrect and unacceptable postulate that the more the income, the more eminent the lawyer.
Generally speaking, the judiciary in the country also would find it difficult to indicate instances of moral and democratic considerations in choosing the leaders of the bar. It is time the statutory concept of eminence is radically altered by way of appropriate amendment. According to Section 16(3) of the Advocates Act, the Bar Council of India can restrict senior lawyers in the matter of their practice. In view of this statutory obligation cast on the Bar Council, the levy of excess fees also should be regulated by the Council. I support the suggestion by Nick Robinson that independent boards should oversee the profession in the best interest of the litigants (“Failed by the lawyer,” The Hindu, July 6, 2013). Chapter II under Part VI of the Bar Council of India Rules deals with “Standards of Professional Conduct and Etiquette.” The rules also need appropriate amendment encompassing excessive bills.
Negation of equality
On account of the indiscriminate conferment of seniorship, there is a clear negation of the perceived equity and equality among the bar members. By treating the bench and the bar on a par with each other, a higher level of internal democracy was conventionally ensured in the judiciary. A similar equality among the members of the profession also is an Anglo-Saxon legacy. The classification of lawyers envisaged by the Advocates Act has had the effect of sabotaging the fundamental uniformity in the bar. In a Maharashtra case, M.P. Vashi v. Union of India (W.P.(C) No.632 of 2011), the levy of exorbitant fees by senior lawyers was the matter in issue. Vashi argued that most of the designated lawyers, by making use of their star value and face value, charge unfair fees. He submitted that a kind of monopoly is being created in the business, detrimental to the interest of the common man at “the other side” who is unable to afford such highly priced lawyers. Unfortunately, the Bombay High Court was not inclined to accept the contention and a historical opportunity for institutional introspection was lost.
Even in decisions dealing with the professional conduct of lawyers, the Supreme Court has not focussed on the question of lawyers’ fees (O.P Sharma v. High Court of Punjab and Haryana (2011) and Supreme Court Bar Association v. Union of India (1998). However, in an earlier judgment in Bar Council of Maharashtra v. M.V. Dabholkar (1975), the court indicated that misconduct is “not restricted to technical interpretations of Rules of conduct.” The Supreme Court added, “Professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new canons of conscience which will command the members of the calling of justice to obey rules or morality and utility.” This principle should apply to the instances of excess charges by lawyers, whether they are seniors or juniors. Since there is a clear deficit in the legislations, which has the effect of infringing on the common man’s right, the Supreme Court needs to lay down the law even by way of judicial legislation as done in Vishaka (1997) and Vineet Narain (1998).
It is fallacious to think about popularising the judicial institutions or legal profession for that matter. The point is about democratising them. The right to choose among the capable is the touchstone of democracy. Like in any other occupation, a lawyer’s job too is quite ordinary and terrestrial. It is high time that the aura surrounding it is removed and the profession demystified. Litigants, like patients, make for an unorganised lot. Reformation in the legal profession is a condition precedent for judicial reforms which again is indispensable for democratic reforms. The idolatry within the bar is detrimental to the majority of the members of the profession, who do not have any role in the mischief. It also negates public good. The state should, therefore, interfere with the “legal market” in the country.
(Kaleeswaram Raj is a lawyer practising in the Supreme Court of India and the High Court of Kerala. E-mail: email@example.com)
The Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons within the territory of India
In a span of about 45 days, the Supreme Court of India has delivered two judgments that have received diametrically opposite reactions — one will count among the Court’s most poorly reasoned judgments while the other is likely to be heralded as one of its finest for its clarity and fidelity to earlier decisions. The contrast between Justice Singhvi’s judgment upholding the criminalisation of homosexuality and that of Chief Justice Sathasivam affirming the rights of mercy-rejected death row prisoners could not be starker. After Justices Singhvi and Mukhopadhaya upheld the constitutionality of Section 377 of the IPC in Suresh Kumar Koushal, the credibility of the Court as a counter-majoritarian institution had suffered a serious setback. However, the Chief Justice, along with Justices Ranjan Gogoi and Shiva Kirti Singh, has done a remarkable job in partly restoring the credibility of the Court through a thoroughly reasoned judgment in Shatrughan Chauhan v Union of India. In Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture and that it is a sufficient basis, in and of itself, to commute a sentence of death to life imprisonment. It is not just about the contrast in outcomes in these two cases but the processes adopted by these two judgments will go a long way in determining the position they will occupy in the judicial history of this country.
Any comparison between the two judgments must begin by acknowledging complexities involved in both cases. The legal response to homosexuality in India through Section 377 has been on the statute books for over 150 years. Though attitudes towards homosexuality have undergone significant changes, it would only be fair to acknowledge that it is nonetheless a deeply divisive issue in India. It would also be a fair assessment that the death penalty and treatment that must be accorded to those sentenced to death are extremely polarising issues. The case before the Supreme Court in Chauhan was particularly delicate because the President had rejected mercy to all 15 prisoners before the Court. However, all 15 prisoners had returned to the Supreme Court seeking enforcement of their right to life on the ground that their suffering on death row due to the inordinate delay by the executive (ranging between 11 to 1.5 years) entitled them to commutation of their death sentence. It must also be noted that the Supreme Court in both cases was being asked to intervene in situations where other organs of the state had already made certain determinations. In Koushal, the legislature had made the political determination that homosexuality would be criminalised by not repealing Section 377. Similarly, in Chauhan, the executive, through the President of India, had rejected all the mercy petitions.
Though the challenges were similar in many ways, there is an unbelievable contrast in the manner in which the Supreme Court responded. In Koushal, the judgment authored by Justice Singhvi does not address the legal issues that were at the heart of the constitutional challenges to Section 377. There are the poorly argued sections on equality under Article 14 and the right to life under Article 21 while completely ignoring the arguments on the protection against discrimination under Article 15. The shortcomings of Koushal are evident when it is compared to the judgment of the Delhi High Court on Section 377 in Naz Foundation. There are established constitutional doctrines to test whether a provision of law is discriminatory and violates the right to equality under Articles 14 and 15 of the Constitution, none of which finds any serious engagement in Koushal. None of this is about whether one supports Section 377 or not. It is about adopting a sound judicial technique — it is about identifying precise and relevant questions; it is about applying constitutional doctrines to those questions in a rigorous manner; it is about reasoned conclusions. Rights adjudication is not about judges merely taking a decision and that is what distinguishes them from politicians. Unfortunately, the judgment in Koushal fails on all these grounds. More than the unacceptable outcome, what must worry us more is that the judgment in Koushal reads like a thinly veiled political decision.
However, the judgment in Chauhan articulates a very difficult legal issue precisely and clarifies the decision of a five-judge bench in Triveniben (1989) on it. While clarifying and relying on Triveniben, there is thorough constitutional reasoning in Chauhan that led the Court to come to the conclusion that inordinate delay in disposing of mercy petitions amounts to torture and that the nature of the crime must have no relevance in that determination. The issue about the nature of the crime was particularly important in the context of the Supreme Court’s decision in Bhullar. In Bhullar, the Supreme Court had concluded that those sentenced to death for terrorist offences could not invoke the argument about inordinate delay in disposing of mercy petitions due to the nature of crimes. While relying on Triveniben to come to the conclusion that the classification of terrorist and non-terrorist offences in the context of inordinate delay in disposing of mercy petitions is constitutionally invalid, the judges, in Chauhan,have not created new jurisprudence and have only clarified the content and application of earlier judgments. There is tremendous judicial skill in the manner in which they have analysed earlier judgments and applied constitutional doctrines.
Challenges and responses
The most obvious difference in the two judgments is the approach to the target groups concerned. In Koushal, the perception that only very few homosexuals have been prosecuted under Section 377 was of tremendous significance to the judges. A numerical approach to rights enforcement is rather baffling and quite alien to the jurisprudence developed by the Indian Supreme Court. In Chauhan, despite dealing with a very small group of individuals (those death row prisoners whose mercy petitions have been rejected) and in particular a group which is often hated and reviled, the judges emphatically held that the protections in the Constitution are available to every individual, without exception. Perhaps the greatest merit of the decision in Chauhan is the rejection of the argument that retribution or strong moral disapproval of actions by death row prisoners can be used to deny them constitutionally protected rights.
As far as institutional relations between different organs of the State are concerned, the Supreme Court, in Koushal, ruled that Parliament was free to amend Section 377 and decriminalise homosexuality. However, if the law were to stand, the judges felt there was no constitutional infirmity. There is a palpable reluctance to meaningfully scrutinise a law on a divisive issue where the political class has made a choice. However, in Chauhan, the Supreme Court squarely addresses the warning that the Court might be overstepping its jurisdiction because the President had already rejected the mercy petitions of all 15 prisoners. The Court is clear that it is not questioning the power of the President to reject mercy petitions but is rather interested and competent to go into the issue of whether the executive violated the rights of the death row convicts due to the inordinate delay. The Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons within the territory of India, whoever they might be.
The Supreme Court, in Chauhan, had the courage to undertake significant course correction by clarifying the ruling in Triveniben. As efforts to decriminalise homosexuality gather pace again with the scheduled review of Koushal this week, the Supreme Court must see the fact that critical questions about the constitutionality of Section 377 have not been addressed in Koushal. If the review petition does not result in correction of the errors in Koushal, the Chief Justice of India (due to retire in April 2014) will find himself in an interesting position. After having delivered a judgment that has gone a long way to restore the credibility of the Court after Koushal, the Chief Justice will have to decide if he wants to refer the constitutionality of Section 377 to a larger bench. Given the intensity of his commitment to the rule of law as displayed in Chauhan, it would be surprising if Chief Justice Sathasivam lets the poorly reasoned judgment in Koushal be a blot on his tenure as Chief Justice of India. He only needs to look as far as the Delhi High Court’s judgment on Section 377 in Naz Foundation to realise what an alternative legacy could look like.
(Anup Surendranath is an assistant professor of law and director of the Death Penalty Research Project at the National Law University, Delhi.)
To be able to deliver appropriate legal services to the rural and tribal communities, we need an alternative delivery system with a different model of legal service providers
Delivery of legal services to the rich and the corporate class is organised not through individual lawyers but through a series of networked law firms. These firms employ hundreds of lawyers and domain experts all over the country to provide highly specialised single-window services to their clients, of course at prices determined by the market. The middle class, which cannot afford their services, go to individual lawyers or publicly-funded legal aid services organised under the Legal Services Authorities Act. In this scheme of things, it is the poor and marginalised rural and tribal communities who are left out. They suffer injustice or seek justice through informal systems, including the so-called “khap panchayats.” It is this sort of situation prevailing in the countryside that provides a fertile ground for the exploitation of the poor and for the growth of extremist forces, undermining the rule of law and constitutional governance.
Myth of legal aid
The 1973 Expert Committee on Legal Aid, titled “Processual Justice to the People,” which eventually led to the enactment of the Legal Services Authorities Act, discussed the futility of the court-centric litigative aid to the poor and marginalised sections, and recommended a series of alternative strategies. Obviously, the emphasis was on legal empowerment and mobilisation, preventive and strategic legal services intended to avoid victimisation, and the development of a public sector in the legal profession capable of responding to the problems of the rural and tribal communities. Unfortunately, when the legal aid law was enacted, the focus again was on assigning a lawyer to the needy client who took the task in a traditional style of protracted litigation with its attendant costs, uncertainty and delay — much to the dismay of the poor. Moreover, the system was premised on three assumptions which were contrary to ground realities — that the victim was aware of her rights and knew how to approach courts; that legal aid offices were available in far-flung villages and tribal settlements; and that the lawyer assigned had the right values, attitudes and competence to do a professional job appropriate to the justice needs of the rural/tribal population. These assumptions did not hold good in a majority of villages and, as such, conventional legal aid became irrelevant to the rural population. Language and communication compounded the situation, alienating the marginalised from a court-centric justice system. One alternative the Legal Services Authorities Act provided was the “Lok Adalat”, which lawyers disliked. The judges, honourable exceptions apart, turned it into an exercise to reduce arrears in courts through what some people call “forced settlements or hurried justice.”
Nonetheless, the Lok Adalat did serve the cause of justice for those who could reach the court despite all the odds. For others, legal aid had very little to offer. The Supreme Court did help them in a big way in the 1980s and the 1990s through the instrument of public interest litigation (PIL), which later lost its importance because of wide abuse by the urban elite and vested interests. Although it is difficult to generalise the legal needs of the rural poor because of the diversity of population, the need for food, shelter, education, health and work are admittedly the priority. The Constitution has left it to the legislature and the executive to progressively realise these needs through laws, schemes and special measures.
At the same time, the Constitution promises to all its citizens equality of status and opportunity, as well as equal protection of the law. Finding that large sections of the poor are unable to fulfil their basic needs even after decades of democratic governance, the Supreme Court sought to interpret socio-economic rights (Directive Principles) as civil and political rights (Fundamental Rights), compelling the state to come forward with laws empowering the poor with rights enforceable under the law. The Right to Education Act, the Food Security Act, and the Employment Guarantee Act were promising initiatives in this direction. However, the poor continue to be at the receiving end of an indifferent administration because of the difficulties in accessing justice through conventional legal aid.
We, therefore, need an alternative delivery system with a different model of legal service providers in rural and tribal areas. How can one fix the land rights of the poor when they have neither ‘pattas’ nor other valid documents? How do water rights and forest rights get protected from exploitation? What happens to government-sponsored schemes for food, sanitation, health and employment, aimed at alleviating the misery of the poorest of the poor? How to ensure that children are in school and are not abused and exploited? What can be done to prevent atrocities against the Scheduled Castes and the Scheduled Tribes in villages, and their forcible displacement? Where do they get credit for their livelihood activities and how are we to prevent victimisation in the process? Do they have fair market access for their produce? What happens to the bio-diversity of rural and tribal areas? How best to preserve and protect traditional knowledge and other intellectual property rights of the rural poor?
What about the labour rights of the unorganised rural poor? How are the rights of farmers to be protected against profit-hungry multinationals’ monopoly on seed, fertilizer and pesticide business? Are the villagers being exploited by state agencies like police, forest officials, banks, revenue officials and mining lobbies with impunity because of the inaccessibility of the justice system? Why is it that the Gram Nyayalaya Act, supposed to extend quick and cheap justice to the rural poor, is neglected by lawyers and judges?
Need for an alternative
When these questions were raised in a professional development workshop recently at Bilaspur in Chhattisgarh, the consensus was that we need an alternative model of legal service delivery to rural and tribal communities, for which a new pattern of legal education needs to be developed. The mainstream law schools are not clear in their mission. Legal educators blindly follow the Bar Council-prescribed court-centric curriculum, producing law graduates unfit to serve the justice needs of the tribal and rural communities. With such advocates, even a well-intentioned legal aid scheme cannot deliver justice to the marginalised sections.
The Bilaspur Workshop evolved a framework of an alternative LLB curriculum for the education and training of legal service providers, appropriate to rural and tribal needs. While the mandatory part of the BCI curriculum is accommodated, the alternative model identified over 40 subjects relevant to rural needs to be included in the optional component of the curriculum. However, the workshop felt that the new type of legal service providers proposed under the alternative model is not distinguished on the basis of knowledge of law only, but in terms of a different set of skills, attitudes and values relevant to the rural/tribal communities. It was proposed that the final year of the five-year LLB programme be devoted to experiential learning through social justice and legal aid activities in rural areas under the supervision of NGOs, self-government authorities, collectorates, and legal aid committees besides law school professors. The experiential learning is through clinical courses developed by law schools for appropriate credits.
Students seeking to set up practice in rural areas will form themselves into what may be called lawyers’ cooperatives or rural law firms, and train in advocacy before public bodies, administrative authorities, Gram Nyayalayas and regulatory agencies, besides courts and tribunals. They will be assisted by trained para-legals from among school dropouts and social activists of the area. The fee for each legal service will be fixed and notified by firms and they will be affordable. These rural law firms will be organised professionally on the lines of urban law firms in terms of technology and quality of services. Cheap, prompt and reliable services will be the hallmark of rural law firms. The law school will give the successful candidates not only an LLB degree but also a diploma in rural legal practice, which will distinguish them from the rest.
It will be the endeavour of law schools adopting this curriculum to assist the graduates to set up their practice in rural and tribal areas, organisationally and financially. Towards this end, the law school will approach the large urban law firms to extend their help as part of their corporate social responsibility. Besides, State governments and the National Legal Services Authority will be asked to give them subsidy in locating their offices in villages and recognising them as public defenders for identified services. Some law schools in Chhattisgarh, Jharkhand, Orissa, Madhya Pradesh and northeastern India have shown interest in adopting this model of legal education. The immediate problem, of course, is to find the right kind of teachers who can deliver under this alternative curriculum. To meet this challenge, there is a proposal to offer a one-year diploma in Law Teaching and Research to teachers of law schools in these States, with a view to augmenting the available resources.
To conclude, the Bilaspur Declaration offers the hope that Indian legal education will turn round and look at the constitutional mandate on responding to the unmet justice needs of the large body of rural and tribal communities in the near future. Professions are, after all, for the people and no profession can survive without their trust and support. The earlier this is recognised by the organised Bar and the government, the better it will be for the country and the professions themselves.
(Professor Madhava Menon is IBA Chair on Continuing Legal Education at National Law School of India, and a Member of the Advisory Council to the National Mission on Justice Delivery and Legal Reform, Government of India.)
It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.
The provisions of the Constitution (120th Amendment) Bill later corrected as the Constitution (99th Amendment) Bill read with the Judicial Appointments Commission Bill, 2013 (JAC Bill), if adopted, will emasculate an independent judiciary and will pose a grave threat to the rule of law. The Constitution Amendment having been passed by the Rajya Sabha on September 5, 2013 is coming up before the Lok Sabha in the winter session.
Our Supreme Court has said “[the] Rule of Law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. The independence of the judiciary is an essential attribute of the Rule of Law.”
The court has also observed: “In India, however, the judicial institutions, by tradition, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. … The constitutional values cannot be whittled down by calling the appointment of judges an executive act.”
The doctrine of separation of powers cannot be stretched so as to set up a mechanism which is capable of being abused by making judicial appointments completely subservient to the will of the executive.
First, the composition of the JAC is the Chief Justice of India (CJI), two senior-most judges of the Supreme Court, the Law Minister, and two eminent persons selected by a panel consisting of the Prime Minister, the CJI and the Leader of the Opposition in the Lok Sabha. It can be modified or altered by Parliament by ordinary law (Article 124A). This configuration of six members is not part of the Constitution and is not constitutionally entrenched. The JAC can be ‘packed’ by pliant elements in future by the executive even by an Ordinance and the JAC can recommend non-meritorious persons even on the basis of caste, religion or loyalty to the government.
The appointment of the CJI, the CJ of High Courts, and judges of the Supreme Court and the High Courts and transfer of High Court judges are to take place on the recommendation of the JAC. Thus, a JAC can, even by a majority, recommend a junior judge of the Supreme Court to be a CJI — or even a Chief Justice or judge of the High Court can be recommended to be the CJI. Further, with six members as contemplated in the JAC, a casting vote for the CJI is essential.
Secondly, there is no provision recognising the convention that the senior-most Supreme Court judge will be appointed as the CJI (unless physically impaired) — a constitutional convention adhered to from 1950 except for the two supersessions concerning Justice A.N. Ray and Justice M.H. Beg. Such a provision will prevent lobbying and will preserve collegiality in the apex court.
Thirdly, the JAC Bill provides that the Central government will appoint the officers and employees of the Commission, making its secretariat a government department. This is the most dangerous provision. The officials and personnel of the Commission should be appointed in the same manner as those of the Supreme Court (Article 146), viz. by the CJI or such other judge or officer of the court as he may direct. If the secretariat or officers and servants of the JAC are treated as government departments, there are a hundred ways of making the JAC dysfunctional. In addition, the confidentiality and secrecy of the JAC deliberations cannot be maintained. The importance of an independent secretariat is a sine qua non for an independent and politically neutral JAC.
Fourthly, all expenses including salaries, allowances and pensions should be charged upon the Consolidated Fund of India as provided for the Supreme Court and the High Courts (Article 146 and 229). The JAC must be financially independent of executive budgetary control.
Finally and, most importantly, the criticism against the collegium system was lack of transparency, no consultations with the Bar, favouritism, the lack of a level-playing field for meritorious members of the Bar, no list of potential candidates prepared after advertisements and nominations to be put up in the public domain and lack of guidelines and criteria in the selection process. These core concepts must be incorporated in the Constitution Amendment and not left to be addressed by the Central government or the JAC. One opaque collegium need not be substituted by another, raising the apprehension that future vacancies may be shared by internal accommodations within the JAC.
The above pernicious shortcomings are ticking time-bombs which can be detonated at any time by a powerful executive having a parliamentary majority in the future — and we are looking at a future which may extend to many years.
If these flaws are removed and appropriate ancillary provisions are made in the Constitution Amendment Bill itself, the entire judicial reform can be part of the Constitution and the JAC Bill will become wholly redundant.
It is worth recalling that the provisions of the Bills were never communicated to the Bar for a robust debate, in spite of a written request by leading members of the Bar in April 2013. The two Bills were gazetted and tabled in the Rajya Sabha on August 29, 2013. On September 5, 2013, the Constitution Amendment Bill was passed in the Rajya Sabha by 131 votes in favour and a single vote by Ram Jethamalani in opposition. The JAC Bill has been referred to a parliamentary committee. This great hurry reminds one of the amendments passed during the Internal Emergency — the 39th Amendment moved on August 6, 1975, and passed on August 8, 1975; the 40th Amendment moved on May 18, 1976, and passed on May 27, 1976; the 41st Amendment moved on August 18, 1976 and passed on August 30, 1976; the 42nd Amendment moved on August 28, 1976, and passed on November 11, 1976.
Reactions to the Bill
The views of former CJI M.N. Venkatachaliah (who headed the National Commission to Review the Working of the Constitution) as reported mention that it would be dangerous if the primacy of the CJI in the appointment process was done away with — it would be against the basic structure of the Constitution. Two other former CJIs are reported to have strong reservations about the JAC being altered by a simple majority and even somebody other than the CJI being made chairperson of the JAC (Indian Express, September 6, 2013).
If the Bills in the present form are passed without eliminating the pernicious features, a serious constitutional challenge is likely to be mounted on the ground of violation of the basic structure by undermining an independent judiciary and consequently the rule of law. These are not imaginary fears. Who expected constitutional amendments which effectively emasculated judicial review being passed during the Internal Emergency after detaining all Opposition leaders, gagging the press and controlling the media and intimidating High Court judges by punitive transfers?
Modus Vivendi: possible consensus
Is a consensus possible? Dr. Rajendra Prasad in his speech in the Constituent Assembly on the eve of the adoption of the Constitution said: “We have prepared a democratic Constitution. But a successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. … After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…”
The Law Minister in his speech delivered in Hindi in the Rajya Sabha on September 5, 2013, said that Parliament had great respect for the judiciary and that the independence of the judiciary should not be impaired. There seems to be some rethinking by the government in regard to the composition of the JAC being entrenched in the Constitution.
It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.
If the amendment is passed with the pernicious flaws indicated above, it is likely to create enormous tensions between the Bar and the judiciary on the one side and the executive on the other — a bruising confrontation which could well be avoided before the coming general elections.
It is hoped that our political leadership will rise to a level of statesmanship to give substance to the prophetic words of Rajendra Prasad, and bring judicial reforms while preserving the rule of law supported by an independent judiciary.
(Anil Divan is president, Bar Association of India. firstname.lastname@example.org)
Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future.
At the Bharatiya Janata Party’s recent Lalkar rally in Jammu, its prime ministerial candidate, Narendra Modi, called for a debate on Article 370. This is encouraging and suggests that the BJP may be willing to review its absolutist stance on the Article that defines the provisions of the Constitution of India with respect to Jammu and Kashmir. Any meaningful debate on Article 370 must, however, separate myth from reality and fact from fiction. My purpose here is to respond to the five main questions that have already been raised in the incipient debate.
Why it was incorporated
First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this discrimination please?” The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”
The involvement of the United Nations brought an international dimension to this conflict, an “entanglement” which would end only when the “Kashmir problem is satisfactorily resolved.” Finally, Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” In sum, there was hope that J&K would one day integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article), but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.
Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship to Manichean terms is to caricature history, and this is equally true of their attitude towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote: “Like some supremely beautiful woman, whose beauty is almost impersonal and above human desire, such was Kashmir in all its feminine beauty of river and valley…” Patel had a much more earthy and pragmatic view and — as his masterly integration of princely states demonstrated — little time for capricious state leaders or their separatist tendencies.
But while Ayyangar negotiated — with Nehru’s backing — the substance and scope of Article 370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And while Patel was deeply sceptical of a “state becoming part of India” and not “recognising … [India’s] fundamental rights and directive principles of State policy,” he was aware of, and a party to, the final outcome on Article 370.
Indeed, the synergy that Patel and Nehru brought to governing India is evident in the negotiations over Article 370. Consider this. In October 1949, there was a tense standoff between Sheikh Abdullah and Ayyangar over parts of Article 370 (or Article 306A as it was known during the drafting stage). Nehru was in the United States, where — addressing members of the U.S. Congress — he said: “Where freedom is menaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral.” Meanwhile, Ayyangar was struggling with the Sheikh, and later even threatened to resign from the Constituent Assembly. “You have left me even more distressed than I have been since I received your last letter … I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditji left for America … have been created … without adequate excuse,” he wrote to the Sheikh on October 15. And who did Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other than the Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept changing course. He wrote to Ayyangar: “Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.” But it was Patel finally who managed the crisis and navigated most of the amendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.
Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that the “autonomy” as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended.
Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory. The 1927 notification included an explanatory note which said: “The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This was widely interpreted as suggesting also that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.
Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.
Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in Srinagar in 1982, leaders of virtually all national parties, including past and present allies of the BJP, declared that the “special constitutional status of J&K under Article 370 should be preserved and protected in letter and spirit.” A review of its policy on Article 370, through an informed debate, would align today’s BJP with the considered and reflective approach on J&K articulated by former Prime Minister Atal Bihari Vajpayee. Only then would the slogans of Jhumuriyat, Kashmiriyat and Insaniyat make real sense.
(Amitabh Mattoo is Director, Australia India Institute, Professor of International Relations, University of Melbourne and Jawaharlal Nehru University.)
Renowned jurist and senior Supreme Court lawyer Fali S. Nariman underlines the need to do away with the collegium system, talks about why the SC judgment on convicted lawmakers is correct, and why ministers should have defended the Section 8(4) ordinance after Rahul Gandhi’s outburst in an interview to Maneesh Chhibber.
Should the collegium system be replaced?
There are many things in the [Judicial Appointments Commission] bill I may not agree with. But there is no doubt in my mind that the collegium system is not working well. There has been no sense of accountability, or of transparency. It is difficult to start criticising what judges do in their non-judicial capacity, because this is a new and different role that judges have taken upon themselves of recommending appointments/ promotions. We need to understand that the role of judges in this, when it was brought in, was intended to take the government off the back of the people. This is because the government at that time had openly propagated that it wanted a judiciary “committed” to its ideology. This was dangerous. So the judges of the Supreme Court said, rather than let the executive do what they wanted, let’s have this collegium system instead. This was an experiment and it was supposed to work, and it would have, if only people had paid a little more attention. Unfortunately, judges simply don’t have the time, they are so overworked in court. That is why this system has failed. What if the new system doesn’t work?
I am not saying that the Judicial Appointments Commission will be the panacea for all present ills concerning appointments in the higher judiciary, but we have to make the new system work. We could not make the collegium system work and by we, I do mean the collective we. I am not blaming only the judges. The collegium system created two different classes among judges: the first five (or first three in the beginning) — were the superior judges, and then there were the rest. They didn’t know what was happening within the first three or five. If we had adopted a system that said that a broad consensus of all judges in the SC would agree on who to recommend for an appointment or promotion, I would have no problem with that system.
Do you agree with the assertion that the judiciary is interfering too much in the domain of the executive?
No, I don’t buy this claim at all. I regret to say that this view is being propagated, unfortunately, by some of our judges too — but only after they retire! I don’t share the view that the courts are transgressing their powers. In any case, I have noticed that when governments in office command a large majority of members of legislatures, the courts do not interfere, except when executive or legislative power is abused. When governments are weak, some judges do impose their ex cathedra off-the-cuff opinions on the government. Hence this talk of “judicial interference”.
Many are criticising the Section 8(4) judgment, saying the matter should have been decided by a Constitution Bench. You were the lawyer for the petitioner Lily Thomas. Your views?
I cannot applaud the judgment because I did appear for the winning side. But, in my humble view, it was, and is, a correct judgment in law. Others may disagree and are entitled to say so. In my view, in the SC, no case of importance to the public should be decided by less than three judges. Earlier, we didn’t have many judges. Now that we have more judges, cases that are precedents should be decided by at least a three-judge bench. I think the chief justice
is trying to do something about this, having more and more three-judge benches. And a matter like this could certainly have been decided by a larger bench. But a bench of two judges, when constituted, must decide the cases put up before it, unless there is another bench decision of two judges taking a particular view with which this bench of two disagrees — in which case, it will be referred to a larger bench of three or five judges. But I see nothing wrong with this particular judgment. The reasoning was as follows: disqualification [in case of conviction] is to be prescribed by Parliament by ordinary law. This is expressly provided for in the Constitution (Article 101). But an exception to disqualification cannot be prescribed by ordinary law, because the Constitution does not permit it. Whenever an explanation or exception to “disqualification” is intended, it has to be in the Constitution itself. Section 8(4) is an exception to the sections on disqualification, that is, Sections 8(1) 8(2) and 8(3). But Section 8(4) — which is an exception — is not in the Constitution itself. This is why Section 8(4) was struck down as ultra vires and unconstitutional.
But Parliament, in its constituent capacity, always has the last word. If you want to provide for an exception to disqualification, you have to do it by amending the Constitution. If that is the wish of Parliament as a constituent body, then it would be alright for convicted criminals to remain in the House, not otherwise. But, as of now, the government doesn’t seem to be agreeable to the idea of amending the Constitution to provide for this, obviously because the government of the day does not want to be seen to be supporting persons already convicted and sentenced to imprisonment for two years or more.
Do you think Rahul Gandhi diminished the prestige of the office of prime minister when he trashed the ordinance?
That is a different matter not connected with law. You must ask him. He’s done it. It only shows somebody is frank and a bit hot-headed as well, and doesn’t have the so-called “maturity” of other politicians. This is because he is not a fence-sitter. Of course, his utterance did undermine the position of the prime minister but this was done openly and in an era that looks for plainspeaking, I would not deplore it.
But, should a party leader criticise,
in such strong words, a decision of the cabinet?
I would throw back at you another question — why didn’t the ministers support the prime minister? Ask why senior ministers did not speak out after Rahul Gandhi had spoken. Why didn’t they say that it was on their advice that the PM had acted? The embarrassment to the PM was not caused by Rahul Gandhi as much as by the silence of the other members of the Council of Ministers.
But what about the manner in which the ministers in government reacted after Rahul Gandhi spoke out, dumping both the ordinance and the bill without any defence of the cabinet decision?
That is the sad and unfortunate part. There is no principle left in politics, only loads of hypocrisy. Shakespeare was right: “the fault, dear Brutus, is not in our stars, but in ourselves that we are underlings”.