The Environment Ministry has systematically undermined the National Green Tribunal, giving expert committees a free hand to grant forest clearances to private projects
The Ministry of Environment and Forests (MoEF) has adopted a confrontationist approach with the National Green Tribunal (NGT). In its recent affidavit before the Supreme Court of India, the ministry stated that the tribunal has “exceeded its brief” and caused it “embarrassment” in Parliament. The affidavit was withdrawn and time sought to file a proper affidavit. The Supreme Court even threatened to stay the operation of the tribunal in view of the hostile approach of the MoEF towards the green body.
It is therefore necessary to trace the reasons for this “conflict” and “embarrassment” and the implications of staying the operation of the tribunal.
The NGT is a Statutory Tribunal and was created by Parliament as a specialised judicial and technical body to adjudicate on environmental disputes and issues. The enactment of the NGT Act, 2010 was itself an outcome of a long process and struggle. The Supreme Court in a number of cases highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialised environmental court. Though the credit for enacting the NGT Act, 2010 goes to the then Environment Minister Jairam Ramesh, it became functional only because of repeated directions of the Supreme Court while hearing the Special Leave Petition titled Union of India versus Vimal Bhai (SLP No 12065 of 2009). The recent developments and the hostile approach of the MoEF towards the NGT seems to suggest that the aim of Mr. Ramesh’s successor (Jayanthi Natrajan) is to dismantle the tribunal.
Despite all the hurdles including financial and administrative bottlenecks, the NGT has emerged as a new hope for the environmental movement in the country. The NGT Act is no less important than the Right to Information Act, 2005, the Right to Food Bill and the National Rural Employment Guarantee Act, 2005. Environmental degradation affects livelihoods, health and access to food. Environmental struggles most often aim at ensuring that information about proposed projects (Environment Impact Assessment reports), air and water quality data is shared with the people. Over the last two years, the NGT has delivered 185 judgments on various environmental issues. The MoEF together with the Central Ground Water Authority, the Central Pollution Control Board and the various State governments have been forced to wake up from years of slumber and total inactivity. One of the most significant powers of the NGT is the capacity to do “merit review” as opposed to only “judicial review.” Under the writ jurisdiction of the High Court or Supreme Court, the courts are essentially concerned with the “decision making process” and not the “merits” of the decision. As a merit court, the NGT becomes the primary decision maker and therefore can undertake an in-depth scrutiny into not just the law but also the technical basis of a particular decision.
A new jurisprudence on the environment is steadily emerging in the country and is an example for the rest of the world. Today, nearly 50-60 Appeals and Applications are heard each working day before the various benches of the NGT. At a time when Environment Impact Assessments reports are a blind “copy and paste,” job where public hearings are a “mockery” and non-compliance with environmental rules and regulations are the order of the day, the NGT serves to restore faith in the “Rule of law.”
Why is the MoEF not keen to see the NGT functioning? The answer is quite simple. The conduct of the ministry as well as the various statutory bodies on the environment has never been called into question in a systematic manner and its decisions have rarely been subject to any “merit review.” This has given a free hand to the various expert committees, boards and the officials as well as the Minister to arbitrarily grant approval to projects disregarding the environmental and social impact of projects and most often in violation of laws and rules. The recent report of the Comptroller and Auditor General of India (CAG) clearly proves the casual manner in which forest clearance issues have been dealt with by the MoEF as well as the State governments mostly to favour private companies. History tells us that the MoEF’s designs have largely succeeded. Post the Bhopal disaster, the National Environment Tribunal Act was passed by Parliament in 1995 to fix liability on a polluter. It never became operational. The National Environmental Appellate Authority set up through an Act of Parliament in 1997 was made defunct by the MoEF and led the Delhi High Court to conclude that the intention of Parliament to set up an effective grievances redressal forum has been defeated.
The recent affidavit is a wake-up call to those trying to protect the environment, the rights of communities as well as ensuring greater accountability in the government’s functioning. If the MoEF succeeds in its design, it would mean its third success in stalling a parliamentary legislation meant to keep a watch on its activities and decisions and protecting the rights of communities.
(Ritwick Dutta is an environmental lawyer and managing trustee of Legal Initiative for Forest and Environment.)
Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.
Judiciary & government
The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”
It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).
Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.
Unheeded lessons from the past
It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.
What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.
Importance of propriety
In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.
For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.
The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.
(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)
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“Journalists like to believe…that all constitutional rights depend on the right to know and the right to know depends on a free press”—Benjamin C. Bradlee, editor of The Washington Post, 2 June 1974. Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.
The battle is unfair because the media is being forced to fight against the judiciary on the latter’s turf. A constitutional bench of five judges in the Supreme Court of India has set out to create a framework for the press to report on the judiciary and its proceedings. The press, unlike Parliament or the executive, has no further remedy once it gets tied down by the Supreme Court. Through Indian constitutional history, the court has been the custodian of free speech and, indirectly, of an uncurtailed and robust press. As it stands, the protector is threatening to limit our rights. Given that the court’s verdict is bound to affect the way people like me carry out our trade, I’m not pleased about the scenario in the least, especially since so much that needs to be said on our behalf is not even coming before the bench.
Yes, journalists are being represented in the case—Rajeev Dhavan has argued for the Editors’ Guild of India and the Forum for Media Professionals, Anil Divan represented The Hindu and Prashant Bhushan argued for Siddharth Varadarajan, editor of The Hindu. Other bodies such as the self-regulatory body for 46 television channels, News Broadcasters Association, the Indian Newspapers Society and the Press Council of India are being heard by the court.
I don’t blame the judges for not understanding the nuances involving journalistic craft. They are judges, not journalists. If it were so easy to understand how reporters, editors and newsrooms worked, there would be no such confrontation between the two sides. And the same is true of the media—few people in newsrooms really understand how the judiciary works.
The language of both the professions also causes mutual tension. To a journalist sitting on a newsdesk, the words “suit” and “petition” are interchangeable, and a headline writer is more likely to use the former because it fits in a smaller space. To lawyers and judges, the gulf between a judge’s quote in a news story suffixed with “said the judge” and “observed the court” is massive. The former might well be an order or directive, while the latter could merely form part of the debate between the bar and the bench. After all, judges must throw searching questions at lawyers in order to properly excavate the points of dispute. The line of questioning, while it is a good indication, doesn’t necessarily mean that the court will eventually rule in that direction.
If you read multiple newspaper reports of the same court case and compare them, they might seem like accounts from different hearings. This is because daily hearings go on for hours, more so in appellate courts. A journalist will have only a few hundred words, or a few minutes of airtime, to tell a story. Obviously the newsiest details must make it to the top—the inverted pyramid rule. And this is not usually the most crucial legal argument being propounded in a case.
Eventually, lawyers think court reporters have done a bad job. The challenge is to succinctly summarize the proceedings. Different newspapers and television channels have varying styles of presenting news.
To most journalists, especially those who don’t normally report court-related news, when a lawyer opens his mouth, all that comes out is legalese.
To be sure, the judges may decide after the hearings are completed not to do anything that may be seen to be muzzling press freedom. The Supreme Court has also clarified that the ongoing constitutional bench hearings dealing with media coverage of sub judice cases will be restricted to questions of law related only to this aspect.
But we must ask the questions since it is germane to the arguments before the court: Is the Supreme Court’s constitutional bench the right forum to resolve bad journalism that emanates from our courts? Do the judges and lawyers appearing before them have the necessary expertise to deal with the myriad issues at hand, especially if they are not of a litigious nature? Does the court have the power to tell the media how it might report judicial proceedings?
What’s happening isn’t new. There have been similar breakdowns between the courts and the press elsewhere.
In March 1975, the top jurists, lawyers, editors, reporters, government officials and other stakeholders in the US came together in what has come to be known as the Washington Conference. Both sides “tested the high ground of principle against the erosive force of real world legal and journalistic practice, agreed to disagree, sometimes even agreed, and learned more about each other than was previously known,” reads a brief preview to the discussions at the conference. Jurists and journalists sat together and while mutually devising solutions, respected each other’s domain.
In 2009, a committee of judges and journalists in the UK decided how reportage would be conducted in the criminal courts.
Dhavan has already submitted to the Indian Supreme Court that a similar joint committee of members from the press and the judiciary would be the best way out of the woods we now find ourselves in. After all, there is no defending bad journalism.
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Human beings across civilizations have always strove to strike a balance between working and resting, reporting and judging, befriending and avoiding, warmth and coldness, speech and expression, joy and frustration … and many intermingled aspects of daily and social life.
What is the right balance? It cannot be constant as it depends as much on the time and age as on a person’s temperament, attitude and disposition. No one has found it and nobody can claim that he or she did everything right in life without displeasing anyone.
In the era of 24×7 television and internet sweeping information across the world in a matter of milliseconds, the Supreme Court of India is attempting to strike a balance between the rights of the accused to a fair trial, protection of witnesses, public’s right to know and media’s right to freedom of speech and expression by exploring the possibility of laying down guidelines for reporting trials of criminal cases.
A five-judge constitution bench has already put the debate cauldron on the hearth. It intends to fill the legal vacuum with a studied and debated guideline to prevent media’s foray into the right to life domain of an accused, prejudicing him during the trial.
Will it be law-making or just finding the law to fill the vacuum? The Supreme Court in the epic ‘Keshavananda Bharati’ judgment [1973 (4) SCC 225] had said, “It is somewhat strange that judicial process which involves law-making should be called ‘finding of law’.”
In India, the Supreme Court alone can interpret the law. English clergyman Bishop Benjamin Hoadley’s 1717 sermon said, “Whoever has absolute power to interpret the law, it is he who is the law giver, not the one who originally wrote it.”
American jurist Benjamin N Cardozo had in his book ‘The Nature of Judicial Process’ said, “The law which is the resulting product is not made, but found. The process being legislative, (it) demands legislator’s wisdom.”
It reminds M R Cohen’s golden lines in the book ‘Law and the Social Order’ – “Some simple hearted people believe that the names we give to things do not matter. But though rose by any other name might smell as sweet, the history of civilization bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making law is undoubtedly of great practical moment.”
Given the complexities of the judicial law-making process intended to fill the legal vacuum, the Supreme Court would surely lay emphasis on the crucial balancing aspect.
Mahabharat’s Yudhisthir, who set supreme standards in balancing his speech and action, had passed his surrogate father Dharmaraj’s two tough tests. On a hot day while in exile, the Pandavas were very thirsty. Sahadev, Nakul, Arjun and Bhim went in search of water one after the other. They found a lake but failed to answer lake-guard Yaksha‘s philosophical puzzles.
Defiantly, they drank water and fell dead. Yudhisthir answered the questions. The Yaksha promised life only to one of his brothers. Yudhisthir chose Nakula and justified that since one of Kunti’s son was alive, a son of Madri must live.
Yudhisthir faced the other test during the Pandavas bodily journey to heaven. After his brothers fell on the wayside, a dog joined Yudhisthir and kept pace with him till the gates of heaven. Indra came with a chariot to take Yudhisthir but told him to leave the dog behind. Yudhisthir said he would rather spurn heaven to stay with his companion.
In between these two incidents, Yudhisthir donned the role of a journalist when Kaurava general Drona was on a rampage on the 15th day of the Great War. The Pandavas killed an elephant named Ashwathama, which was also Drona’s son’s name. A rumour was floated that the enemy army chief’s son was dead. Drona confronted Yudhisthir, who reported aloud that Ashwathama was killed while muttering under his breath that he was not sure whether it was a man or an elephant.
It is difficult to explain why Yudhisthir, who perfected the art of balancing his speech and action, failed when it came to reporting correctly!
Coming to the Supreme Court’s guidelines exercise, a question arises – is it born out of over-sensitiveness? We hope it is not. For the court had in Rajesh Kumar Singh case [2007 (7) SCR 869] warned, “Of late, a perception that is slowly gaining ground among public is that sometimes, some judges are showing over-sensitiveness with a tendency to treat even technical violations or unintended acts as contempt.
“It is possible that it is done to uphold the majesty of the courts, and to command respect. But judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of ‘power’. Nearly two centuries ago, Justice John Marshall, the Chief Justice of American Supreme Court, warned that the power of judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in trust, confidence and faith of the common man.”
The Judiciary is the third branch of government. As with the Executive and Legislature, the public has a right to see and know and understand the functioning of this branch. That is why India, like every other democracy, has embraced the concept of open court proceedings and trials, except in those situations where, for security or other compelling reasons, in camera hearings are required.
In the Mirajkar case (Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr on 3 March, 1966) a nine-judge Bench of the Supreme Court under its legendary Chief Justice, P.B. Gajendragadkar, held that “save in exceptional cases, the proceedings of a Court of justice should be open to the public”.
“A Court of justice is a public forum”, the 1966 judgment declares. “It is through publicity that the citizens are convinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation.” (emphasis added)
Once the objective of a public trial in open court is accepted, it is obvious that this openness cannot be restricted to those members of the public who have the facility and inclination to be present in a given court at a given time; rather, the reference is to the wider public, to the citizenry as a whole. The only way court proceedings, and the wider functioning of the judicial system, can be subject to public scrutiny is if the media — who are the people’s eyes and ears — have the freedom to both be present in open court and to give an account of what transpires in open court.
It is thanks to contemporary newspaper reports of the day-to-day hearings in landmark cases like Kesavanada Bharati (1973) (certainly in The Hindu, and perhaps elsewhere too) that the public then — and legal scholars now — have an accurate picture of all the intricacies involved, including the oral arguments made and questions raised by the Bench. Many more such examples can be cited.
To be sure, covering the courts requires skill, competence and some domain knowledge of the law, in much the same way that coverage of foreign policy, defence, business and finance, and even politics requires reporters knowledgeable about those subjects. The Supreme Court has seen fit to specify that accredited correspondents must possess a law degree; it has also quantified the amount of reporting experience, at different levels of the judiciary, that these correspondents must have. No other branch of government or public or private institution — not the armed forces or Defence Ministry, not the Ministry of External Affairs, the Police, the Ministry of Agriculture or Health — has insisted on a degree or professional qualification as a condition for accreditation. Nor to my knowledge is a law degree a requirement to get accreditation as a correspondent to the Supreme Courts of the United States, Canada, the United Kingdom, South Africa, etc. I raise this point here not to challenge the Supreme Court of India‘s system of media accreditation, but merely to note that having raised the bar for entry, imposing further restrictions in the form of guidelines on these correspondents — all of whom have been allowed in precisely because of their knowledge of, and sensitivity towards, the functioning of the Court — seems especially superfluous.
No doubt the most experienced and knowledgeable reporter can make a mistake on a particular matter. These mistakes can be harmless, hurting only the reputation of the concerned journalist or media house. But there can be mistakes which have consequences for the reputations of the parties to a case and their counsel, or to the Bench and Court. If an error by a reporter has adverse consequences for the reputation or standing of the Court or plaintiffs, remedies exist under existing statute and court procedures and it is up to the Bench or the affected parties to invoke those remedies. If a factual mistake has been made, or wrong information conveyed, no media house can claim immunity, on the basis of press freedom, from the ordinary process of law. If the error is innocent, and the Court is convinced this is so, the matter might rest with a simple apology; if, on the other hand, mala fide is suspected, the Court is empowered to take punitive action.
Given these remedies, none of which are necessarily inconsistent with constitutionally guaranteed press freedoms, it would seem unnecessary to impose a regime of “prior restraint” or even “temporary postponement” via guidelines on what aspects of court proceedings may be reported. Indeed, such a regime would have a chilling effect on media coverage of the Supreme Court and, eventually, the entire judiciary, at great cost to the general interest of society.
It is true that the Law Commission has recommended ‘postponement’ of reportage citing jurisdictions such as Australia and Canada, where jury trials are sought to be insulated from public opinion. But in India, there is no trial by jury; and surely the judicial independence of judges — and their vulnerability to what appears in the media — cannot be the same as that of the average citizen-juror.
Of course, it is a matter of concern that sections of the print and visual media sometimes report police accounts of crimes without the necessary qualifiers demonstrating that the truth of the matter is not known. Worse still, these accounts are often attributed not to named officers but to ‘anonymous’ police sources. An individual may thus stand “convicted” in the eyes of the public without any recourse to corrective measures. The bald reporting of a petitioner’s claims or accusations can also mislead the public if presented as fact. These are real problems that require remedying. However, a true reading of Article 19 of the Constitution requires that the press regulate itself in this regard and strive, as a collective, for the highest ethical standards. Given the public’s growing disenchantment with the media in the wake of various scandals, it is also in the media’s interest to heal itself. This is a subject journalists are pursuing at multiple levels within the print media and there is also the oversight of the Press Council of India, which, under the chairmanship of Justice Markandey Katju, has re-energised itself. Imposing further judicial restrictions on democratic access to information concerning Supreme Court proceedings would amount to overkill.
Undermines people’s right
My apprehension is that if the Supreme Court, which sits at the apex of the third branch of government, were to insist that reporters covering it abide by guidelines that the Court itself lays down, this would open the door to the other branches of government — that too, at all levels — making similar demands on the media as a precondition to gaining access to Parliament and Legislatures, Ministries, public institutions, hospitals, universities, etc. The natural instinct of most politicians and bureaucrats is to hide or suppress information on one pretext or another. The adoption of media guidelines by the Supreme Court would embolden them, further undermining the public’s right to be informed. Recently, for example, a Karnataka Assembly committee tasked with investigating the scandal involving Ministers caught on camera watching pornographic material sought to blame the media for recording what the Ministers were doing. Shouldn’t you be focusing just on the official Assembly proceedings, journalists were asked.
Courts in open societies elsewhere, particularly in North America, may have had occasion to be upset with media coverage of cases but they have not sought to frame guidelines of the sort being envisaged by the Supreme Court of India. The only etiquette rules courts in the United States seem to focus on are the circumstances under which journalists may use recording devices and cameras. Today, the debate on this issue in the United States is focused on whether journalists should be allowed to carry mobile devices into the Supreme Court so that they can “tweet” live from inside without having to come outside the courtroom. The court forbids this. At issue, however, is not the right of the journalist to provide near-live coverage of a hearing, should she so desire but only whether she can use the communication technology on court premises.
Of course, journalists and editors should be honest in accepting that the reason the Supreme Court — and the government — want to step in is because the media act as if they are not accountable to anyone. Aggrieved citizens have no forum they can approach for an effective and swift remedy in the event of being injured by misreporting. Unless newspapers and television stations get serious about self-regulation, the pressure of external regulation will always remain.
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Come Tuesday, the Supreme Court will begin contemplating ‘framing of guidelines’ for court reporters. How the hearings play out affects both reporters and you, the citizen
Picture this: After months of waiting, your property dispute or society imbroglio finally comes up for hearing. Enter the court reporter — seeing his presence in the court causes a palpable impact on the behaviour of lawyers and judges alike. However, if the Supreme Court of India has its way this Tuesday, court reporters across India will now have to follow guidelines on how to report matters of their beat. The court will be hearing interventions in the matter of ‘framing of guidelines for reporting of cases in media.’
The guidelines the Supreme Court frames potentially impact coverage of all courts in India. In 2007, the SC had also framed a similar set of norms for accreditation of legal correspondents covering the apex court, which, among other things, insisted that journalists have a law degree, and a certain amount of experience. On March 20, a Constitution bench of the Supreme Court led by Chief Justice of India SH Kapadia took up the issue of framing guidelines for the media to report cases in courts. The setting up of the Constitution Bench by the CJI comes in the wake of misreporting of court hearings and leaking of confidential information affecting litigants.
Veteran journalist and columnist MJ Antony considered the impact the move would have on the freedom of the press. “If a report is found to have been in violation of the guidelines, are we going to scrutinise individual paragraphs to prove it? Who will be held liable for the mistake? What is the punishment and what is the remedy?” Besides, he points out that all media organisations have their own code of conduct, besides which exist bodies like the National Broadcast Association and the Press Council of India. Advocate Madhavi Divan, author of Facets of Media Law, a commentary on aspects of media law and its regulation emphasised that the ‘open justice system’ must not be forgotten. “Traditionally, any member of the public could come in and watch court proceedings. The logic of this has been that the public should be allowed to understand the administration of justice. As they say, ‘justice must seem to be done’.”
But she adds that the media is in a slightly different position. “Unlike the American Constitution, ours confers no special status to the press beyond ‘freedom of speech and expression‘, but the media still remains a trustee. The public relies on the media for responsible dissemination of news, and this must be taken into account. As long as the guidelines do not unreasonably restrict the freedom of speech and expression, the media cannot protest.” Welcoming the move, court reporter-turned-advocate Rajiv Wagh said, “Reporting court proceedings is quite different from covering politics or crime. One does not need technical knowledge to cover those subjects. Some training imparted by news organisations would be helpful. The court itself could also consider running short training programs specifically for court reporters.”
To some extent, adds Antony, the media can correct its own mistakes. “If a doctor makes a mistake, the patient may die. If a structural engineer makes a mistake, a building might collapse. But if a newspaper makes a mistake, it can issue a clarification and rectify it.”
The biggest problem, say journalists, is the lack of a proper channel to dispense information from courts in real-time. Many orders and judgements are uploaded on the Internet, but that is often too late for reporters to make a good story of. Reporters must also be familiar with the laws of contempt, in order to safeguard their interests and yet manage to break stories.
Motive and Intent
Above all, added Wagh, your motives should be clear. “You can tell from a report when a story is motivated. When your motives are clear and your only intent is to get the truth out, you will rarely get into trouble.” There is also an urgent need to implement a system of cross-verifying what a reporter hears in court. Divan said, “There has been talk of implementing video recording, which would go a long way in preventing inaccuracies. Abroad, every word uttered in court is recorded in writing, so the question of misreporting doesn’t arise.”
Concluded Divan, “It is unfortunate that the courts have had to step in; it should not have come to this. The media ought to have regulated itself from the outset.”
Our judiciary creaking under the seemingly impossible load of cases awaiting disposal needs urgent attention if we have to avoid collapse of the system, which could put in jeopardy the whole state of orderly society.
Law courts no longer inspire public confidence, as litigants only get increasingly distant dates for their next hearings each time they approach them. The proverb “justice delayed is justice denied” too seems inadequate to describe the prevailing circumstances. Judgments come after endless wait, which ensures there is rarely any sense of satisfaction or justice. As pending cases pile up, the judicial system is not in a position to meet the challenge of arrears that have swamped courts from top to bottom.
According to the latest statistics available from the Supreme Court’s report on vacancies and pending cases, the apex court has now run up a backlog of 56,383 cases — the highest figure in a decade. The situation is similar in the country’s 21 high courts, where 42,17,903 cases are awaiting disposal. In lower judiciary, which constitutes the base of the entire judicial pyramid, the total number of such cases stood at 2,79,53,070 at the end of March 2011. And these figures do not include the cases pending in various tribunals and other quasi-judicial bodies. If those were also added to the grand total, the arrears in lower courts would well cross the figure of 3 crore, which is alarming, to say the least.
The right to fair and speedy trial holds little promise for the aggrieved who knock at the door of courts as a last resort for justice or relief. Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma. Prolonged delays also mean high rate of acquittal in criminal cases — it is as high as 93.02 per cent in India. Unable to get justice from courts, victims often take the law into their own hands to settle scores with culprits. This only multiplies the problem of law and order, and in turn the load on courts. It has also encouraged kangaroo courts in the form of khap panchayats or lynch mobs in many parts of the country, which mete out rough-and-ready justice on the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres owing to uncertain contract enforcement, higher transaction costs and general inflationary bias, which the finance minister has also acknowledged.
TOO FEW JUDGES
Among other issues, inadequate judge strength at all levels is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world. There are 13.05 judges per 1 million people, as against Australia’s 58 per million, Canada’s 75, the UK 100, and the USA 130 per million. In 2002, the Supreme Court had directed the Centre to raise the judge-population ratio to 50 per million in a phased manner, as recommended by the Law Commission in its 120th report. The suggestion has had little effect.
Even the existing judge strength is reduced further when judicial vacancies are not filled promptly. For instance, the Supreme Court had only 26 judges in October last year, including the Chief Justice of India, against the sanctioned strength of 31. The vacancy level in the 21 high courts of the country, if put together, is 32 per cent, with 291 posts of judge — against the sanctioned strength of 895 — lying vacant for a long time.
In subordinate courts, where we have the maximum backlog of cases, there are 3,170 posts vacant. The sanctioned strength of district judges has gone up to 17,151, according to the Supreme Court’s report on vacancies and pending cases. Filling these vacancies will have a direct impact on India’s governance indicators, improving investor sentiment and advancing economic growth.
If we look into the World Bank Institute‘s Governance Matters set of indicators specifically for rule of law, India had a percentile rank of 54.5 in 2010 (coming down from 60.3 in 2000), which compares ill to 97.2 for the Netherlands, 91.5 for the US, and 81 for South Korea. Other World Bank documents, quoting market analysts, say that it is not unusual for the first hearing in Indian courts to take six years, and the final decision up to 20 years.
SPEED UP SELECTION
The power of appointment to top judicial posts is vested in a collegium of senior judges, with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for months, or even more. The selection process, therefore, ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance and the process of appointment completed beforehand. In the case of resignation or death, the selection process should come into play without delay to ensure that the Benches work with full strength. And, if the wholesome principle of merit, enunciated by the Law Commission, is accepted in principle, there is no reason why there should be any delay in determining appointments or filling vacancies.
Also, unless the judiciary is given full financial autonomy, the problem of pendency of cases or non-appointment of judges will persist. Funds are required for creating new posts of judge, increasing the number of courts and providing infrastructure. The judiciary has to petition the Law Ministry each time it needs finances, which are forever hard to come by. Less than 0.3 per cent of the Gross National Product (GNP) — or 0.78 per cent of the total revenue — is spent on the judiciary in India. This, when more than half of the amount is being generated by the judiciary itself through court fees and fines. In the UK, USA and Japan, the expenses on judiciary are between 12 and 15 per cent of the total expenditure.
Together with adequate manpower, it is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times, a sure way to delay disposal of cases. In addition, there are myriad laws and other specious requirements, which have no relevance today, yet are frequently invoked. These must be repealed to expedite the judicial process. “Court procedure is not to be a tyrant but a servant, not an obstruction but an aid to justice, a lubricant and not a resistant in the administration of justice,” the Supreme Court has observed. After all, procedures are meant to help the law, not defeat it.
Impelled by the motivation of pecuniary gains, lawyers often indulge in unethical practices of stalling court proceedings deliberately. At every stage, a number of interlocutory applications are filed and adjournments on flimsy grounds sought to defeat the purpose of speedy dispensation of justice. Such is the situation that even expansion of the judicial machinery will not achieve much until rules about stay orders and adjournments are also changed to prevent lawyers from prolonging litigation. In addition, punitive fines should be imposed on unscrupulous litigants found to be abusing the process of law to discourage unnecessary or frivolous litigation and to make the judiciary self-supporting.
Instead of arguing their cases endlessly, it would be better for lawyers to present their submissions in writing to the judge so that cases could be decided on merit on the basis of documents and written submissions filed by both the parties before the judge, without the fanfare of formal court sessions and personal attendance of petitioners, respondents and lawyers. Direct written representation by the parties, rather than oral arguments spoken in the din and bustle of crowded courtrooms, would also lower the risk of miscarriage of justice. This practice, followed in the US Supreme Court (where oral arguments serve as additions to the obligatory written brief), can be easily adopted in Indian courts. Constitutional and corporate matters have little scope for courtroom histrionics.
Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages, incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and is paid for from the taxpayers’ money, and should not be wasted in expounding one’s personal ideologies. Justice, equity and fair play demand that judges are more crisp and precise while writing their judgments rather than rely on lengthy quotes and superfluous observations. They should deliver judgments as early as possible, instead of keeping them reserved for long durations.
AIM FOR CONCILIATION
The legal strategy for modern India should aim at conciliation and not confrontation, in keeping with our tradition of tolerance and mutual accommodation. The focus should be on “conciliatory legal realism”. A judge should not merely sit like an umpire, but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This would help reduce the backlog of cases, avoid the multi-tier process and also lead to reconciliation of legal disputes without causing much enmity and bitterness.
However, any attempt at judicial reform, including raising the number and strength of courts, improving the selection process of judges or setting up evening and fast-track courts throughout the country to dispose of cases quickly will fail unless high courts succeed in establishing that they are reliable and just, and instil such confidence in litigants that they forgo the last resort of the apex court, except in rare cases. At the same time, if the trial courts at the grassroots level are also properly strengthened and made effective instruments of justice in the real sense, the cycle of appeal and counter-appeal could be broken and delay reduced. The litigation backlog would then melt like an iceberg in a tropical sea.
The writer is a legal consultant, and advocate at the Delhi High Court and the Supreme Court
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BY V R KRISHNA IYER PUBLISHED IN THE HINDU
The concept of judicial infallibility is valid, but a legal pronouncement need not always be the last word on a given subject.
The article in The Hindu by Ramaswamy R. Iyer, “With all due respect, My Lords,” on March 2, a critical study of the ruling of the Supreme Court giving certain directions under the authority of Article 141, relating to inter-linking of rivers was noteworthy. And his request to reconsider the decision deserves serious consideration.
What the Supreme Court decides is final not because it is infallible; it is infallible because it is constitutionally final and structurally supreme. If ignorance is made final, governance becomes chaos. That is why the Montesquieuan theory of the trinity of instrumentalities is accepted by many Constitutions across the world, including the Indian Constitution. What is in the realm of the Executive is decided by the Executive. What is legislative, in the shape of law, is decided by the Legislature. When there is a dispute over a fact or law, the decision of the court is final, and all the other branches of the structure are bound by the judicial decision.
From this perspective, river disputes fall within the jurisdiction of the judiciary. But, for instance, how high an aircraft should fly without the possibility of danger, or how a safe dam should be constructed to store water, are matters highly technical, and hence these do not belong to jurisprudence or judges. I was once a Minister for Irrigation and Electricity (in Kerala) and started projects on the advice of engineers. The court never interfered, nor could they. There may be some areas where submergence by a river may cause risks — and on the basis of clear technical advice a court may pronounce an order. The jurisdictional borders of the Executive, the Legislature and the Judiciary are fairly clear, and one of them cannot interfere with the other. Viewed from this angle, I agree with Mr. Ramaswamy Iyer’s critical observations.
Judges, merely because they wear robes, cannot decide on the course of rivers, whether they should be linked or not, and if at all, how they should be linked — just as they cannot decide on matters to do with the safety of flights or other such technical issues. Judges are not infallible; and they cannot issue executive directions or promulgate legal mandates or punitive impositions in such contexts.
The central flaw of the Supreme Court’s verdict on the inter-linking issue is the failure to realise that a pan-Indian river project may have dangerous limitations. The Ganga and the Cauvery are two great rivers, but they cannot be linked up without first making a careful and exhaustive study of the various features of the terrain through which they flow over a vast territory of India. Otherwise, it may well end up as a horrendous blunder, irreparable after the decision is operationalised. A national debate involving also the great engineers, especially river engineers, that we have is essential before undertaking the implementation of a national project such as this.
The Supreme Court is indeed infallible, but while in its jural specialties it may well be top of the league, it is largely innocent in matters to do with mighty river-engineering. Therefore, great caution with all the wisdom at our command, must first be used to study the implications and the perils of this Himalayan-scale project before implementing a juristic wonder beyond what the Supreme Court has so lightly directed. Where the implications are too great to grasp and the consequences may be beyond repair, “hasten slowly” will be a good piece advice. Never assume that the robed wisdom that is good for jurisprudence will not land us in dangerous waters.
Therefore, never be in a hurry. Study every dimension of this huge project. When the project was announced a decade ago in 2002, one section of public opinion supported it, and another opposed its implementation. It is without taking any note of the conflicting public opinion that the present binding directions have been issued by the court.
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RAMASWAMY S IYER IN THE HINDU
It is not for the Supreme Court to decide how the government should ensure the right to water; in any case, the connection between this right and the river linking project is tenuous.
In recent times the Supreme Court of India, with a series of remarkable decisions, has earned our admiration, respect and gratitude. Alas, it has now come out with an extraordinary order on the Inter-Linking of Rivers (ILR) Project, which has caused consternation and dismay to many of us.
In 2002, in a post-retirement explanation, a defensive Justice Kirpal had said that his order on the river-linking project was not a direction but merely a recommendation. That defensiveness has now been abandoned. In the present order, the Supreme Court explicitly directs the Executive Government to implement the project and to set up a Special Committee to carry out that implementation; it lays down that the committee’s decisions shall take precedence over all administrative bodies created under the orders of this court or otherwise; it (graciously) authorises the Cabinet to take all final and appropriate decisions, and lays down a time-limit of 30 days for such decision-making (though it has the saving grace to say “preferably”); and it grants “liberty to the learned Amicus Curiae to file contempt petition in this court, in the event of default or non-compliance of the directions contained in this order”.
The normal course
In the normal course, a project goes through certain stages and procedures: formulation; examination from various angles by the appropriate agencies, Committees, and Ministries; statutory clearances under the Environment Protection Act and the Forest Conservation Act; compliance with the procedures prescribed in the National Rehabilitation Policy; acceptance of the project by the Planning Commission from the national planning point of view; and finally a decision by the Cabinet. The Supreme Court rides roughshod over all this and orders not quick consideration and decision-making by the government, but implementation.
Are the proposed Special Committee and the Cabinet free to examine the project and come to the conclusion that it is unacceptable and must be rejected? No, they are under the Supreme Court’s order to implement the project and may face contempt proceedings if they fail to do so. The project decision has been taken away from the hands of the government; it has been exercised by the Supreme Court; the government and the Planning Commission have been reduced to the position of subordinate offices or implementing agencies of the Supreme Court.
It could be argued that the above is a misrepresentation of what the Supreme Court has done, and that the learned judges are only concerned at the delay in the implementation of an approved project and asking for early implementation. In fact, there is no approved, sanctioned project called “the inter-linking of rivers project”. In 2003, when there was a raging controversy about this idea, an important defence by its supporters was that it was not a project but a grand concept; that it will consist of 30 links, each of which will be a project that will go through all the usual examinations and procedures; and that the critics are needlessly raising the bogey of gigantism. If it is a concept, how can it be ‘implemented’? It has first to be translated into projects, and each of those projects has to be properly approved or rejected, as the case may be. Thereafter we can talk about implementation.
How many of those 30 projects have been actually approved? None. Three — Ken-Betwa, Damanganga-Pinjal, Par-Tapi-Narmada — have reached the stage of preparation of Detailed Project Reports, and one (Polavaram), though included in the ILR Project, was separately taken up by the Andhra Pradesh government on somewhat different lines, but is mired in controversy. There is not a single case of a project actually sanctioned and ready for implementation.
The learned judges may say that this is precisely what worries them; that by now the projects should have been well under way; that a good project or concept or whatever it was, announced in 2002, is languishing; and that the judiciary has to step into the vacant space created by non-action by the Executive and issue the necessary direction. This is the gap-filling theory. However, there is a fallacy here. The “delay” is not the result of executive failure or inefficiency, but a deliberate (though unstated) slowing down of action on the project. The NDA had announced the project in 2002 with fanfare and trumpets. The UPA government which followed in 2004 was not very enthusiastic about the project but at the same time did not want to abandon it; its Common Minimum Programme stated that the project would be comprehensively re-assessed in a fully consultative manner. This was a clear indication of reservations about the project. Thereafter the project has been in the doldrums. Unfortunately, the government’s attitude towards the project was never made unambiguously clear to either the general public or the Supreme Court.
The Supreme Court was clearly entitled to ask the government to state categorically where it stood in this matter: whether it considered the project to be a good (or the only) answer to the country’s needs; if so, whether it intended to proceed with it; or alternatively, whether it had decided to drop the whole idea, and if so, on what grounds. What the Supreme Court was not entitled to do was to issue a direction to the government to implement the project.
Why has it done so? It would be wrong to attribute this to a desire for aggrandisement. The Supreme Court is convinced that the project is good and urgently needed; and that a very important national initiative is getting bogged down because of various reasons and needs to be galvanised. It has come to that conclusion because of a report by the National Council for Applied Economic Research.
There are two problems here. First, assuming that there is a serious water scarcity problem, it is not the business of the Supreme Court to deal with it; there is an Executive Government to deal with such matters. True, the citizen’s right to water is a fundamental right, and therefore the Supreme Court is concerned with it; but while it may direct the government to ensure that the right is not denied, it is not for it to lay down the manner in which or the source from which that right should be ensured. Moreover, the connection between the right to water and the ILR Project is very tenuous; it is the large demand for irrigation water that generally drives major projects and long-distance water transfers. It is true, again, that there are intractable inter-State river-water disputes, and these are of concern to the Supreme Court; but the Supreme Court can at best direct the Executive Government to find early answers to river water disputes, and not recommend a particular answer such as the ILR project, which may in fact generate new conflicts.
Secondly, and finally, we come to the heart of the matter, namely the view that the country faces a looming water crisis; that the answer lies in augmenting supplies; that given the magnitude and distribution of India’s future water requirements, the ILR project is the best possible answer; and that it is in the national interest to implement it quickly. It is that conviction that provides, in the Supreme Court’s view, the justification for its intervention. If that view of India’s water crisis and its solution is challenged, the whole basis for the Supreme Court’s order collapses.
This article will not enter into a discussion of this vital question, but will merely point out that there is a diversity of views on it, which the Supreme Court has failed to consider. The NCAER may have taken one view of the matter, but there are other views. The cogent case against the project has been succinctly stated in the editorial in this paper on 1 March 2012. That knocks the bottom out of the Supreme Court’s order.
In 2002, when the NDA government announced the ILR Project, a fierce controversy broke out. There were many who hailed the initiative, but there were many others who deplored it as not only uncalled for but as positively disastrous. Many State governments expressed strong reservations on the project. Articles appeared in newspapers and journals. Books were published on the subject. How much of this vast literature have the learned judges read? How could they rely on the NCAER’s report without reading other scholarly work? Even if the learned judges did not have time to read all the available material, should they not at least have heard a dozen scholars representing different disciplines and a few social activists before they decided to issue directions to the government?
This article will conclude with an earnest and respectful request to the Supreme Court to withdraw or at least put on hold its order, conduct further hearings, listen to a wider range of opinions, and reflect on the matter before it comes to firm conclusions.
(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)
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ARGHYA SENGUPTA IN THE HINDU
Judgments should speak for themselves; when judges justify them in public, they run the risk of sounding like politicians.
Justice Felix Frankfurter, one of America’s most eloquent Supreme Court judges, speaking at an American Law Institute function in 1948, aptly described the infirmity of being unable to speak about one’s judgments publicly, an attendant facet of being a Supreme Court judge, as “judicial lockjaw.” For watchers of the Indian higher judiciary, which has adhered to this principle since its inception, the last fortnight has brought forth a surprising development in this regard. Justice Asok Kumar Ganguly, an erudite judge of the Supreme Court of India, who retired recently, has, since leaving office, actively engaged with the media, first in print and then electronically. While a retired judge writing and speaking extra-judicially per se on matters of public importance is a fairly common and welcome phenomenon, his participation in a feisty debate in a leading newspaper on the merits of one of his own judgments, and then agreeing to take part in a television interview whose questions focused solely on two of his controversial judgments, is uncommon. As well as raising questions of individual propriety, it contains possible portents of the slowly changing nature of the Indian higher judiciary.
Justice Ganguly’s rejoinder
Three days after his retirement, Justice Ganguly issued a startling written rejoinder to the criticism by former Lok Sabha Speaker Somnath Chatterjee of the 2G judgment, which he had handed down a few days previously. Not only did he defend his judgment, first by assuring Mr. Chatterjee that “the judgment was not delivered either out of temptation or out of any desire to appropriate executive powers” but also positively asserted that “[t]he judgment was rendered in clear discharge of duty by the Court” (The Telegraph, 6 February, 2012). His statements, especially to the extent they clarify and defend his judgment, raise deep questions regarding the proper role of judges in post-retirement public life. This is especially so in Justice Ganguly’s case, as it was followed up with an interview to a private television channel where, despite steadfastly refusing to comment on the merits of the 2G judgment or the judgment relating to sanctions for prosecution per se, his statements on the subject had the effect of giving the interviewer and the viewing public sufficient sound bytes on how the judgments ought to be interpreted. To cite a single instance — in response to a question as to whether the timeline set by the Court for the government to consider sanction requests against public servants should apply to the Chief Justice of India when permission is sought for a FIR to be filed against a judge, though he refused to give a direct answer, he suggested that the recommendations made in the judgment “should apply across the board.” To any reasonable viewer, this statement would certainly come across as a clarification on what the recommendations made in the judgment ought to mean.
It is not the legality of Justice Ganguly’s engagement with the media that is in issue here. Like any other citizen, he has a right to speak, and is free to exercise that right in whichever manner he desires, provided it is within the bounds of constitutional permissibility. But when a retired judge speaks, not in his capacity as an ordinary citizen but wearing the hat of a judge who was party to a particular judgment, as Justice Ganguly obviously did, the primary question is one of propriety. That the judge, after rendering judgment, becomes functus officio and the judgment of the Court speaks through itself, is a long established principle in the Indian judicial system. The rationale for the principle is salutary: that the decision of the Court when it is cited as a precedent in subsequent cases as a binding principle of law, ought to be interpreted on its own terms and not on the basis of any extra-judicial clarifications that may be issued subsequently. Of course, any academic discussion and criticism following the judgment may be relevant, but never involving the judge concerned himself, as that may have an unwarranted overriding influence on future interpretations of the decision. At the same time, the principle does not prohibit judges from writing their memoirs, which are often filled with delightful accounts of the unseen dynamics of a judicial decision, or commenting on the consequences of a case after a period of time or on a matter of significant national importance. However, coming so close on the heels of the judgments being delivered, Justice Ganguly’s statements in the media can neither count as an academic commentary nor be justified by a passage of time having elapsed. Propriety thus demanded that he thought better than articulating his views publicly in this manner.
Judge’s role in public
Equally importantly, Justice Ganguly’s actions point to a larger question as to what the role of a judge should be in public life. Unlike politicians or film stars who are public figures by virtue of their closeness to the people, judges are public figures precisely because they manage to keep their distance from the people. It is this detachment which allows judges to be immune from the passions of popular sentiment and political machinations, thereby facilitating the independence of the judiciary as an institution. Any engagement with the media by a judge in a judicial capacity, whether while holding office or post-retirement, fundamentally erodes the extent of this institutional detachment. Especially if the engagement primarily focuses on decisions given by judges, it runs the risk of turning judges into quasi-politicians, clarifying and justifying their judgments by direct appeals to the public, rather than simply allowing the reasons contained in the judgment to perform this justificatory function.
Indeed a comparative analysis across countries shows the links which can be drawn between extra-judicial utterances and the political savvy of judges. In England, where courts are largely apolitical, extra-judicial utterances are rare. Judges, except the Law Lords, were for a long period, conventionally governed by the Kilmuir Principles, key amongst which is the view that “[s]o long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable.” Though the Principles themselves are no longer strictly applicable, the tradition of extra-judicial silence continues. On the contrary, across the Atlantic, in the United States of America, whose Supreme Court is an overtly political institution, notwithstanding Justice Frankfurter‘s wise advocacy of restraint, judges have a long history of writing and speaking extra-judicially on their own judgments and on the Court itself — Justice Stewart wrote a letter to the Editor of the Wall Street Journal defending his majority opinion in a racial discrimination case; Justice Goldberg publicly defended the Court and its stance on judicial review and states’ rights in the New York Times; in fact even Chief Justice Marshall, back in the 19th Century, defended his landmark judgment, authoritatively laying down the nature of American federalism in McCulloch v. Maryland, albeit writing under a cleverly disguised pseudonym in the Philadelphia Union.
Sign of transformation
As this comparative experience demonstrates, the judicial propensity to engage directly with the public is clearly a symptom of a Court whose judges are keenly conscious of the immense political significance their decisions have. In this backdrop, Justice Ganguly’s comments, unwarranted as they may have been, perhaps provide an early sign of the subtle transformation of the Supreme Court of India into an overtly political institution, owning up and reacting to the immense political ramifications of its actions. Equally, they raise deep questions regarding the interaction between judges and the media, arguably two of the most powerful pillars in Indian democracy today. This is a complex, multi-dimensional issue that cannot be dealt with here. However it would suffice to say that the obtuse language used by judicial decisions, their unclear consequences and the difficulties faced by sections of the media in understanding the subtleties of legalese, all suggest that like several courts worldwide such as the Supreme Court of the United Kingdom and the European Court of Human Rights, the Indian Supreme Court too should issue official media summaries of important decisions. Not only will this facilitate wide comprehensibility of key judgments, but it will also ensure that judicial decisions are not wantonly misinterpreted. Most importantly, it will mean that judges, whether in office or speaking in their judicial capacity immediately post-retirement, will have an additional reason to remain lockjawed, allowing their judgment together with its officially authorised summary to do the talking.
(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and founder of the think tank The Pre-Legislative Briefing Service.)