Appointment of judges by collegium of judges

T.R. Andhyarujina, IN THE HINDU

Focus on the present method of selection of judges of the Supreme Court and the High Courts by the Supreme Court collegium.

The controversy over the proposed elevation of Justice P.D. Dinakaran of the Karnataka High Court to the Supreme Court by the collegium of the Chief Justice and four senior-most judges of the Supreme Court and the criticism of overlooking of apparently suitable judges by the collegium has brought into focus the present method of selection of judges of the Supreme Court and High Courts by the Supreme Court collegium.

The method of selection of judges by a collegium of Supreme Court judges finds no place in the Constitution. The Constitution confers the power of appointment of judges on the President of India i.e. the Government of India to be made in consultation with the Chief Justice of India and other judges of the Supreme Court and the High Courts. How then did a collegium of judges of the Supreme Court come to exist and come to possess this power?

The collegium method was created as a result of two judgments of the Supreme Court, first in 1993 (Supreme Court Advocate-on-Record Association case) and by a follow-up President’s Reference to the Court in 1998. With the best of intentions of securing the independence of the judiciary, the Supreme Court rewrote the provisions of the Constitution for appointment of judges and appropriated the power to appoint judges by the judges. By the first case the power was vested in the Chief Justice of India in whom it was held the primacy lay in appointments assisted by two judges of the Supreme Court. In the second case the court took away the primacy of the Chief Justice of India and vested the power in a collegium of the Chief Justice of India and four senior-most judges of the Supreme Court.

The clear intention of the Constitution makers in the Constituent Assembly debates of not making the Chief Justice of India the final authority was disregarded. Inversing the constitutional provisions, the Chief Justice of India and the collegium became the initiator and appointer of judges, and the President of India was made only a formal approver in the process. These judgments are prime examples of overreaching by the Supreme Court. Indeed, in the second judgment of 1998 the Court went to the extent of extracting a statement from the government that it was not seeking a reconsideration of its earlier judgment of 1993, and government would also accept and binding the judgment it was delivering.

The essential features of this judicially created system of appointments is that the collegium selects judges on their own assessment of the merits of a person and the government is bound to appoint the selected person except in a rare case of the collegium having overlooked some aspect of the incumbent not being a suitable judge. Even here, government’s view can be disregarded by the collegium by reasserting its choice. The executive has little or no role in the appointment of judges as a result.

Prior to the first judgment in 1993, as a matter of convention the government always consulted the Chief Justice of India in the appointment of judges and there were only a few appointments without the concurrence of the Chief Justice of India. The period of the Emergency was an exception. The ablest judges appointed to the Supreme Court were by appointments made prior to the collegium system. It is hard to understand the necessity to overturn the Constitution’s prescription by the Supreme Court in this manner.

In prescribing the appointment to judges of the Supreme Court and the High Courts by the collegium, the Supreme Court did not realise the burden it was imposing on the collegium of selecting judges for the Supreme Court and High Courts and transferring them from one High Court to another. At any given time there are two to three vacancies in the Supreme Court, and 200 in the 22 High Courts and the transfer of a number of judges to be made. An administrative task of this magnitude must necessarily detract the judges of the collegium from their principal judicial work of hearing and deciding cases. The collegium neither has a secretariat to shoulder this burden nor an intelligence bureau to make appropriate inquiries of the competence, character and integrity of a proposed appointee.

Lacking this infrastructural backup the collegium resorts to ad hoc informal consultations with other judges in the Supreme Court who are expected to know the merits of a proposed appointee from a High Court or occasionally by sounding a member of the Bar. These methods are poor substitutes for a full time intensive collection of data about an incumbent, his work, standing, merit, integrity and potential which requires to be made considerably in advance for filing in the vacancy. Besides, the collegium’s deliberations are secret, the system is opaque and the choice of a judge is only known when his name is forwarded to the Government for formal appointment.

The collegium has necessarily limited its field of choice to the senior-most judges from the High Court for the appointments to the Supreme Court, overlooking the several talented junior judges in the High Courts or members of the bar. Limiting the zone of selection to senior-most judges of the High Court has induced legitimate expectations in them to be promoted to the Supreme Court and consequent disappointment when they are overlooked.

To be fair to the present collegium of the Supreme Court it has inherited a system with these limitations given to them by the two judgments of the Supreme Court. With the best effort and good faith the collegium suffers from institutional handicaps in its selection. For that it is today easily pilloried by critics for making wrong choices or overlooking the right persons. Conscious of the criticism of the collegium system the CJI, K.G. Balakrishnan has said that until the system is changed he is bound by the two judgments. It is ironical that those who created the collegium and argued in favour of vesting the power of appointment in judges today find faults in the working of the system.

What then should be done to remedy the situation? There is a consensus that in today’s political conditions the power of appointment of judges cannot be restored back to government. In several countries of the Commonwealth, National Judicial Appointment Commissions have been established to select judges. Such judicial commissions have worked with success in the U.K., South Africa and Canada. The advantage of judicial commissions are that they are independent, broad based and they represent not only the views of the judiciary but also of the executive and other sections of society. They are transparent in their working even to the extent that applications are invited by public advertisement, as was the case when judges were appointed to the new Supreme Court of the U.K. recently.

In India proposals for the establishment of a National Commission for Judicial Appointments have been made at various times. The Law Commission in 1987 recommended a broad based body of judges and other person to make recommendations for the appointments of judges. A Constitutional Amendment Bill was tabled in Parliament for the establishment of such a Commissions in 1990 but it lapsed. The National Commission to Review the Constitution 2002 set up by the Government of India favoured a National Judicial Commission with a predominance of judicial members as an alternative to the collegium system. With the size of the Indian superior judiciary, it may be necessary to have two judicial commissions in India, one for the Supreme Court and another for the High Courts.

Would such Commissions be successful in India? There are justifiable doubts about finding independent and competent members who would not be influenced in their decisions. This raises the vexed question whether the present system with suitable modifications should be continued or judicial commissions should be introduced in India.

(The writer is a Senior Advocate of the Supreme Court & former Solicitor-General of India.)


Bhopal Gas Disaster- Judicial failure


Twenty-five years after the disaster, the principle of absolute liability, the cornerstone of litigation, faces the risk of being diluted.

THE 25th anniversary of the Bhopal gas disaster has justifiably attracted considerable attention not only to the plight of the survivors but to the failure to secure justice for them. How prepared the country is to meet disasters of a similar scale and force their perpetrators to compensate the victims adequately is an equally important issue to consider during the anniversary.

For long, the Indian judiciary’s attitude towards mass disasters was governed by the rule laid down in the English case Rylands vs Fletcher (1866). According to this rule, there are certain industrial activities which, though lawful, are so fraught with the possibility of harm to others that the law has to treat them as allowable only on the term of insuring the public against injury. The rule is also called the principle of strict liability.

The facts in that case were that the defendant, who owned a mill, constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the mill owner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. The mill owner was made liable for the damages resulting from the flooding.

There are many activities that are so hazardous that they may constitute a danger to the person or property of another. The principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. Permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes as an appropriate item of its overheads. Over the years, this principle got severely diluted in England, and several exceptions to the rule were recognised by English courts. Such exceptions included natural disasters, the act of a third party (sabotage), the plaintiff’s own fault or consent, and the natural use of land by the defendant or a statutory authority.

Traditionally, the principle of strict liability allowed for the growth of hazardous industries while ensuring that such enterprises would bear the burden of the damage they caused when a hazardous substance escaped. The Supreme Court of India got the first opportunity to review this rule in 1985, soon after the Bhopal tragedy. This was the Shriram gas leak case, which was decided by the Supreme Court in December 1986. In this case, the petitioner M.C. Mehta, an environment lawyer, sought the court’s directions to close and relocate the caustic chlorine and sulphuric acid plants of the company Shriram, which were located in a thickly populated part of Delhi. Shortly after Mehta filed the petition, on December 4, 1985, oleum leaked from Shriram’s sulphuric acid plant, causing widespread panic in the surrounding community. The ongoing Bhopal litigation influenced the court’s decision in this case considerably.

In the wake of the Bhopal gas leak disaster, Union Carbide Corporation (UCC), the parent company of Union Carbide India Limited (UCIL), which ran the pesticide unit, presented a sabotage theory to shield itself from the claims of the victims. UCC alleged that a disgruntled employee working in the factory had triggered the escape of the gas. Such a theory afforded a defence under the rule of strict liability.

The Supreme Court rejected the rule of strict liability, and in its place applied its new doctrine of “absolute liability”. According to this, where an enterprise is engaged in a hazardous or inherently dangerous activity and an accident in such an operation results in the escape of a toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions under the rule of strict liability.

The Madhya Pradesh High Court first applied the absolute liability theory to support its award of interim compensation to the victims, on April 4, 1988. The High Court’s view was that after the no-exception standard of Shriram, UCC’s liability was “unquestionable”. However, this judgment was never implemented in view of the final settlement reached under the auspices of the Supreme Court in 1989.

In 1992, however, the Supreme Court, while hearing a petition from UCC to review the final settlement, recognised the corporation’s right to raise and urge defences, thus questioning the validity of its own “without exception” absolute liability principle. This ruling of the Bhopal Review Bench was a setback to the court’s enunciation of the absolute liability principle in the Shriram case.

Fortunately, the court, in 1996, accepted the validity of the absolute liability principle in the Bichhri case. In this case, units located in an industrial complex in Bichhri, Rajasthan, devastated the environment by discharging untreated toxic chemicals and sludge. The court found that all the regulatory agencies, including the Central government, had failed to force the polluter to pay. The court disagreed with the finding of the Bhopal Review Bench that the absolute liability principle laid down in the Shriram case was obiter dictum. It held that it was bound by the principle. In another case, involving pollution caused by the discharge of untreated effluent by industries in Tamil Nadu (Vellore Citizens Welfare Forum vs Union of India, 1996), the Supreme Court applied the principle of absolute liability to even non-toxic pollution cases.

The court explained that the polluter pays principle required the polluter not only to compensate the victims of the pollution but also to pay remedial costs to restore the damaged ecology. It also held that once the activity carried on was hazardous, or inherently dangerous, the person carrying on such activity was liable to make good the loss caused to any other person by his activity, irrespective of the fact whether he/she took reasonable care while carrying on his/her activity. The principle stems from the logic that the enterprise alone – and not the person affected – has the resource to discover and guard against hazards or dangers. The person affected cannot do so because of the practical difficulty in establishing that reasonable care was absent or that the damage to him was foreseeable by the enterprise.

In January 1991, Parliament enacted the Public Liability Insurance Act (PLIA), giving statutory recognition to no-fault liability. Under this Act, victims of a hazardous industrial accident are entitled to compensation at prescribed levels, without providing any proof of negligence. The maximum compensation under the Act, however, is limited to a measly Rs.25,000 although the right of a victim to claim larger damages under any other law is expressly reserved. To ensure prompt payment of compensation to victims, the Act requires all hazardous enterprises to obtain sufficient insurance cover and provides for an independent machinery administered by the District Collector for the filing for and adjudication of claims. The rules framed under the PLIA limit the liability of an insurer to Rs.5 crore for every accident.

With only a few cases reported under the Act, it has not been found to be of any help to ensure timely payment of adequate compensation to the victims of accidents involving hazardous industries. Poor enforcement of the Act by the authorities has meant that its laudable objectives are out of sync with reality.

The National Environment Tribunal Act (NETA), 1995, extended the application of absolute liability without limitation to all cases where death or injury to a person (other than a workman) or damage to any property or the environment resulted from an accident involving a hazardous substance. The “owner”, who is defined as a person who owns or has control over the handling of any hazardous substance at the time of the accident, is liable to compensate the victims on a no-fault basis. Application for compensation may be made to the tribunal established under the Act. The Act is not in force as the government has not yet notified it, allegedly under pressure from business houses dealing with hazardous substances.

The law was enacted in pursuance of decisions taken at the United Nations Conference on Environment and Development (in which India participated) held in Rio de Janeiro in June 1992. The statement of objectives of the Bill stated that it was considered expedient to implement the decisions of the aforesaid conference so far as they related to the protection of the environment and the payment of compensation for damage to persons, property and the environment while handling hazardous substances. The enactment of NETA – and its subsequent non-notification – is seen as representing symbolic compliance with the decisions taken at the international conference, just in order to hoodwink the international community, rather than any genuine interest in the protection of the environment.


Meanwhile, in order to skirt uncomfortable questions regarding the non-notification of NETA, the government has come out with another Bill, the National Green Tribunal Bill, 2009, to replace the 1995 Act. In terms of relief to victims of environmental disasters, the new Bill, according to the environmental lawyer Ritwig Dutta, is worse than the 1995 Act. It limits the locus standi of the complainant before the tribunal, making it impossible for human rights organisations to intervene on behalf of the victims. Activists are also aggrieved over the Bill’s time limit for entertaining applications. It stipulates that no application for the adjudication of a dispute shall be entertained six months after the occurrence of the alleged cause of action.

Similarly, the Bill says no application for grant of compensation will be entertained unless it is made within five years of the occurrence of the alleged cause of action. Both these deadlines are extendable by 60 days if the tribunal condones the delay. It is pointed out that this is no relief at all as in many cases, the environmental impact of disasters is felt long after the occurrence of the disaster. The drafting of the Bill without any consultation with the stakeholders has disappointed environmental activists.

While the executive’s concern for absolute liability standards is dubious, the judiciary appears to be wavering on its decade-long commitment to the principle. The quest of the survivors of the gas tragedy for just compensation and the Supreme Court’s reluctance to grant it – in line with its past commitments – form a sad chapter in the history of disaster litigation in India.

On July 19, 2004, the Supreme Court directed the Welfare Commissioner of Bhopal to disburse the unspent amount of Rs.1,503 crore in the Settlement Fund on a pro-rata basis to all the (5,70,000-odd) victims who had been awarded compensation for death and injury. The court also allowed the petitioners, the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS), the option of filing an application for augmentation of the compensation amount in proportion to the magnitude of the disaster (which turned out to be five times greater than what was assessed at the time of the settlement). But the court dismissed on May 4, 2007, an application they filed seeking enhancement of the compensation by a factor of five, stating that the task of determination of facts was that of the Welfare Commissioner, Bhopal. Both the Welfare Commissioner and the Madhya Pradesh High Court later rejected their plea on flimsy technical grounds.

The petitioners before the Supreme Court had argued that only slightly over half of the $470 million of the Settlement Fund (Rs.713 crore at the then prevailing exchange rate) had been utilised to settle five times more claims than those estimated in 1989. The Supreme Court, on May 4, 1989, directed that 84 per cent of the amount be disbursed as compensation in 3,000 cases of death and 1,02,000 cases under four different categories of injuries, ranging from simple ones to those of utmost severity, and 16 per cent be set aside to compensate those who had lost property and livestock. Thus, out of the Rs.713 crore, Rs.113 crore was set aside for those who had lost property and livestock and for specialised medical treatment and Rs.600 crore was to be disbursed among the assumed number of 1,05,000 gas victims as compensation at an average of Rs.57,143 a victim at the 1989 value of the rupee.

However, as per the report of the Office of the Welfare Commissioner, as on December 31, 2008, not less than 5,74,367 gas victims were actually awarded compensation, which works out to an average of Rs.12,410 a victim at the 1989 value of the rupee. In the order dated May 4, 1989, the Supreme Court had assured the victim groups that if the total number of dead and injured turned out to be more than the number on which the settlement was based, the settlement was liable to be reopened. The Supreme Court did not expect the number of claimants to rise by five times and had asked the Centre rather than UCC to meet the shortfall in the compensation amount, if any. However, the genetic damage caused by the disaster meant that the children of the victims and their descendants also medically suffered the impact of the tragedy in one way or the other and would add to the number of claimants substantially. The gas victims were also denied interest for the period of undue delay in the adjudication and award of compensation – a process that stretched from 1992 to 2004.

These developments in the Bhopal compensation saga have led observers to question whether the executive and the judiciary are indeed keen to follow, as they seemingly claim, the absolute liability principle in letter and spirit.

The Link for the Frontline Article

Reorganisation, then and now


The Indian experience of state formation reveals the processes of identity formation of regions and of various communities and groups.

THE demand for the formation of a Telangana state has been voiced for more than fifty years now. Soon after the creation of Andhra Pradesh in 1956 as the first linguistic State in post-Independence India, Telangana, a major region within the State, began to witness the demand for political autonomy and cultural identity within the broader parameters of federal polity and political economy of development. The Congress leadership’s decision to initiate a process to grant statehood for Telangana brings to the fore a number of issues concerning the rationale for creating newer and smaller states in contemporary India. In order to make a better sense of the new demands for statehood, we need to revisit the States reorganisation process carried out between 1950 and 1956 and in the following decades.

The States Reorganisation Commission (SRC) appointed by Jawaharlal Nehru in 1953 was initially against the unification of Telangana with Andhra. The SRC Report, submitted in 1955, states: “One of the principle causes of opposition to Vishalandhra also seems due to the apprehensions felt by the educationally backward people of Telangana that they may be swamped and exploited by the more advanced people of the coastal area. The real fear of the people of Telangana is that if they join Andhra, they will be unequally placed in relation to the people of Andhra and, in this partnership, the major partner will derive all the advantages immediately while Telangana itself may be converted into a colony by the enterprising Andhras” (Para 378).

Nehru ridiculed the idea of merging Telangana with the Andhra State, fearing a “tint of expansionist imperialism” in it. Later, he compared the merger to a matrimonial alliance having “provisions for divorce” if the partners in the alliance cannot get on well. The merger was facilitated by many promises and constitutional safeguards. However, the demand for separate statehood for Telangana has rested on factors such as the scale of inter-regional inequalities causing socio-economic backwardness of the region, inadequate industrial infrastructure, lack of educational and employment opportunities, diversion of water and natural resources of Telangana to the coastal region of Andhra, the hegemonic control of the coastal capitalist class over the Telangana region, the hegemony of upper castes and upper classes through the Congress party leaders in the State, and the distinctive historical and cultural identity of the region.

On the basis of the SRC’s recommendations, the linguistic reorganisation of 14 States and six Centrally-administered territories was partially completed in 1956, with several other States to be reorganised later on. This was a massive state rationalisation exercise, not simply to establish newer modes of power and authority but to rearrange social, cultural, regional and linguistic diversities into more manageable enclaves of state power. The deep-seated linguistic-cultural diversity and differences within different States and the regions had to be negotiated carefully during the early years of state formation.

The interface between political geography and cultural politics culminated in the consolidation of specific caste and class interests, strengthening the ideology of the nation-state building exercise, in various parts of the country on the one hand, and disintegrated the political architecture of the colonial state on the other. The story of the “integration of states” in post-colonial India is also a story of the disintegration and reintegration of various States and regions into more uniform and administratively rationalised units of state power.

Even before India achieved Independence, the nationalist leaders wanted to reorganise political and administrative boundaries of their country in consonance with its diverse geo-linguistic and cultural diversity to regenerate nationalist sentiments for unity among people belonging to different regions and communities. This attempt required an in-depth study of the regional and local bases of power and their cultural-historical pasts to understand the geographical locations of power. The historical experiment with territorial re-demarcation began in the 1920s, when Mahatma Gandhi proposed to reorganise the Congress provincial committees on the principles of cultural-linguistic and geographical contiguity. The idea was to strengthen cultural consolidation and political participation of the regions in the national movement. This was partially in response to the colonial state’s arbitrary realignment of provincial boundaries and borders by disregarding their historical cultural cohesiveness and bases of power.

Soon after Independence, the nation-building exercise of the new state had to be based on a more robust, democratic and participative pattern. The newly established federal democratic political structure needed to reconcile the balance of power between a relatively strong Centre and weaker States. The States, however, needed to be reconstructed and reconstituted in this long process of political consolidation and formation of the Indian nation. Attaining independence along with the partition of the country made some national leaders like Nehru and Vallabhbhai Patel apprehensive about the reorganisation process, which, in their view, could pose the danger of fragmentation of the new state.

The process of reorganisation was based on lessons learnt much from three decades of experimentation with the idea of the possibility of the creation of linguistic states. A number of language-centred identity movements that emerged during this period in regions comprising the Madras, Bombay and Bengal Presidencies, and parts of the United Provinces focussed on reorganising the new States on the principles of linguistic-cultural distinctiveness, economic viability and geographical unity along with the federal political and administrative rationality.


Nehru’s initial fears and scepticism about the disintegrative effects of this experiment disappeared with his consent for the creation of Andhra Pradesh as the first linguistic State. Though the SRC considered issues such as size, economic viability, economic planning, geo-linguistic durability and even the status of riparian states, it focussed more on redrawing the map of India along linguistic lines. On the other hand, the linguistic reorganisation of States in 1956 also created newer conflicts and contests among different States. The following decades continued to witness the process of reorganisation, with the creation of Maharashtra and Gujarat in 1960, Chandigarh, Haryana and Punjab in 1966, Himachal Pradesh in 1971, various States in the north-eastern region between 1960 and 1980, Goa in 1987 and Chhattisgarh, Jharkhand and Uttarakhand in 2000. The creation of Chhattisgarh, Jharkhand and Uttarakhand, which was made possible by disintegrating regional boundaries and political territories from within the existing States of Madhya Pradesh, Bihar and Uttar Pradesh, respectively, was not along the same criteria laid out for the earlier reorganisation of States.


The political history of independent India needs to be conceptualised by locating it within the political demands for democratic representation and legitimation of authority, on the one hand, and modes of negotiation over and redistribution of rights and resources of the State and its constituents, on the other. The idea of large States and small States had a dominant concern over the political economy of these States. Some argued that larger States would be better governed with the mechanism of Central planning by the strong interventionist state that would ensure a proper balance between developed and underdeveloped regions through an equitable flow of capital and labour in these States. On the other hand, those favouring smaller states were worried about the excessive control over resources by larger states, resulting in the deepening of regional economic inequalities and hierarchies of power. The reorganisation process tells us a story wherein the state attempted to strike a balance between linguistic-cultural plurality and political centrality on the one hand, and strategies to refashion the scales of social, cultural and political hierarchies of regions and States on the other. The process recreated as well as remapped the given hierarchies of cultural and social geographies of castes, classes, regions, economies and cultures, which in turn, were reconstructed for specific political reasons.


Within a decade of reorganisation, it became obvious that language alone could not be a satisfactory basis for the division of States. Political scientists, public policy analysts, sociologists and even historians began to doubt the integrative effects of the process of reorganisation in this new polity. If Selig Harrison called these years “the most dangerous decades”, Joan Boundurant and others linked up the process of linguistic regionalism with “India’s political problem of creating a sense of national citizenship” that needed to be guarded against the parochial tendencies of linguistic chauvinism. Myron Weiner considered the problem of political integration as not just a territorial one but one being part of the national identity, which should also be seen in the context of territorial control, public security, public accountability and the proper balance between the rulers and the ruled. These states were considered to have ushered in the phenomenon of regional cultural renaissance. The process also resulted in the recreation of linguistic-cultural minorities in all large States demanding recognition of their language and cultural identity, such as the Bodos in Assam, the Coorgis in Karnataka and the Nepalese in West Bengal.

The expansion of the Eighth Schedule from 12 languages in 1950 to 22 languages reflects the increasing demands and aspirations of these linguistic-cultural communities for recognition as distinctive political collectives. Is the linguistic principle a better basis to reorganise the States, and if so, to what extent has it created a federal structure satisfying the aspirations of the cultural groups? Has language provided a bond to form durable cultural identities in States such as Uttar Pradesh and Madhya Pradesh? Such questions worried the State officials for quite some time in the initial decades after Independence.


These reorganised States had to negotiate their cultural-linguistic borders with their neighbours – issues arose between Karnataka and Maharashtra, Maharashtra and Gujarat, Haryana and Punjab, Orissa and West Bengal and between Andhra Pradesh and parts of Madras Presidency, among others. Not only this, the dominant linguistic communities in these States had their own specific regional and cultural forms of power. The specific regional linguistic identity provided cultural and economic capital and resources that were now institutionalised through a complex network of state patronage and recognition. These newly formed States had to deal with the large proportion of the population considered part of the cultural-linguistic minorities belonging to languages other than the State/official or regionally dominant and acceptable languages of power and privilege.

The principle of linguistic-cultural homogeneity along with the criteria of economic viability, administrative efficiency and geographical contiguity did not succeed in curtailing the future demands of cultural autonomy based again on cultural and linguistic differences among various groups and communities in these States. From the very beginning, the fears of the linguistic minorities were not unwarranted as the dominant language elites in these newly created States began to exercise cultural and political hegemony in the spheres of education, economy, social mobility, administration, judiciary and employment.

In this context, the present demand for 35 more languages to be included in the Eighth Schedule needs to be kept in mind. The state rationale, therefore, began to conjoin demands of cultural autonomy with developmental polity and regional inequalities – economic and cultural – within a uniform agenda of political economy of development.

A number of ethnic, state autonomy, sub-national and sons of the soil movements emerged in different States and regions in the following decades. The institutionalisation of cultural pluralism of this kind began to reinforce the cultural hierarchies, leading to the emergence of, what Myron Weiner has called, two political cultures, that is, elite culture and mass culture with newer forms of subordination and domination. The demand for the creation of new states clearly indicates the complex relationship between political legitimation of power, on the one hand, and the actual social and cultural diversity and its representation and recognition, on the other. The non-congruence between these two realms is one of the reasons arguing for more states in different parts of the country.

What is important for our analysis is that the principle of linguistic-cultural homogeneity favoured by the SRC had cultural, educational, political and economic manifestations.

The Indian experience of state formation through an extensive exercise of redrawing the boundaries and territories reveals the processes of identity formation of regions, sub-regions and of various communities and groups. The story of integration of states, as V.P. Menon pointed out, was also a story of the simultaneous disintegration of states. The new linguistic States were considered to have ushered in the phenomenon of regional cultural renaissance resulting from the consequences of the redrawing of boundaries culminating in the indigenisation and democratisation of provincial politics, further leading to the development of diverse regional political cultures.


The rise of regional political parties is closely tied up with the emergence of regional consciousness and region-based identity movements as an offshoot of the reorganisation process itself. These political parties and their local bases of power have posed newer challenges of governance and political stability at the Centre in the post-Congress era. However, the experience of the last 50 years shows that the pace of economic development has not been achieved uniformly across regions and has instead increased regional disparities and inequalities. Furthermore, these disparities have increased during the post-reform period between and within these States. Liberalisation facilitated the processes in the formation of an all-India market and increasing competition among States for private investment – both domestic and foreign – putting the backward States at a distinct disadvantage.

Therefore, greater attention needs to be paid to the specific needs of the backward regions and States to allocate adequate and more equitable investment of scarce resources. Factors such as political instability during coalition governments, consolidation of vote-bank politics within and across States, the growing significance of regional political parties in capturing power in the States, the impact of globalisation on the national spaces of economy and labour, and the increasing assertion of lower class/caste communities in the democratic functioning of the Indian state have acquired significance and given way to administrative and political reasons behind the idea of the territorial redrawing of the existing States. The political initiatives of renaming of the States, redrawing their territorial boundaries and creating newer states and districts from within the existing ones have to be carefully planned and executed, keeping in mind the historical processes of contestations over the categories of regions and states in the identity politics of modern India.

The proposed second SRC not only needs to look carefully into the demands for carving out newer and smaller states such as Bhojpur (Uttar Pradesh and Bihar), Bodoland (Assam), Bundelkhand (Uttar Pradesh and Madhya Pradesh), Coorg (Karnataka), Gorkhaland (West Bengal), Harit Pradesh (Uttar Pradesh), Marathwada (Maharashtra), Mahakaushal (Orissa), Mithilanchal (Bihar), Muru Pradesh (Rajasthan), Poorvanchal (Uttar Pradesh), Saurashtra (Gujarat), Telangana (Andhra Pradesh) and Vidarbha (Maharashtra) but also take into account the complex relationship between regional autonomy and political viability of these regions, and their cultural and political consolidation within a more democratic, plural, secular and participative developmental politics in contemporary India. Only then will it be possible to ensure better and equitable economic distribution of resources within and between States, better protection of the most marginalised sections of the population, more decentralised governance, political accountability to some extent, and the restraints on bureaucratised, centralised oppressive Indian state apparatus.

Asha Sarangi is Associate Professor, Centre for Political Studies, Jawaharlal Nehru University, New Delhi.

Limits to the death penalty


What will ultimately be remembered about a court is not how resolute it was but how articulate and skilful it was in meshing firmness with mercy and kindness.

Judges in India award the death sentence only in “the rarest of rare cases”, a formula that works very well.

Notwithstanding my abhorrence of capital punishment, I keep track of all awards of death penalty and how they are administered by courts the world over. There have been no major problems in India in this regard. Judges in India have been commendably circumspect in awarding the death sentence to an offender and restrict it to “the rarest of rare cases”, a formula that has worked very well.

This restraint shows the maturity of our judiciary. It also at least partially placates many of us who demand the abolition of capital punishment. I am, therefore, amused whenever parliamentarians demand a change in criminal law that will extend death to rapists and similar transgressors of law and civilised conduct. However well meaning they may be, these lawmakers forget that the moment capital punishment is awarded for offences other than murder, the standard of evidence that a judge will look for goes up greatly. Given the usually low quality of our criminal investigations, many offenders, including child rapists, who deserve to be locked up for several years could go scot-free.

My immediate focus, however, is on a few judgments relating to death sentence delivered by the United States Supreme Court. I must confess my admiration for that court because its proceedings are so well documented and much discussed that they make for fascinating reading, apart from being educative. Again, the built-in transparency that marks the process of choosing its judges, however controversial, is unique in a world that ceaselessly craves to reduce injustice in judicial processes.


On November 30, 2009, in Porter vs McCollum, the U.S. Supreme Court overturned a 1987 Florida Supreme Court decision to convict Porter (77), a Korean war combatant, who had been found guilty of murdering his former girlfriend and her boyfriend in Melbourne (Florida). (In the U.S., every State has a Supreme Court with the U.S. Supreme Court in Washington, D.C., at the top of the pyramid.) Interestingly, Porter attended only a part of the trial court hearings and later chose to plead guilty. At the sentencing hearing, he was represented by a court-appointed lawyer, Sam Bradwell, who had never defended an accused in a capital sentence proceeding. Not surprisingly, therefore, Bradwell did not talk to any of Porter’s relatives or go through his school, medical or military service records before addressing the court. Porter went on appeal following his conviction for one of the murders. After losing twice in Florida courts, he moved Federal Courts on a habeas corpus writ on the grounds that his lawyer had failed to inform the jury about his experiences in the Korean war and its aftermath. This was, according to Porter, an omission that fell far short of the Constitution’s minimum standards for adequate representation.

Consistency is not always a judicial virtue. Judges come from varying backgrounds and each carries baggage that determines his or her responses to a particular crime. The U.S. Supreme Court, which sits collectively all the time, is invariably split between a conservative group and a liberal group, and the odd number of its strength (nine) makes it impossible to be arithmetically equally divided. Except, of course, when one judge refuses to fall under a label and decides each case on merit. Unanimity is, however, not unknown to that court.

In the Porter case, it expressed itself in unison – the judgment therefore was unsigned – and said: “Had Porter’s counsel been effective, the judge and jury would have learned… about Porter’s heroic military service in two of the most critical – and horrific – battles of the Korean war…. The relevance of Porter’s extensive combat experience is not only that he served honourably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and emotional toll that combat took on Porter.”


Significantly, the court did not attach importance to the fact that he committed the murders in 1986, more than 30 years after the Korean war had ended. Writing in The New York Times (“Selective empathy”, December 3, 2009), columnist Linda Greenhouse contrasted the court’s solicitude to Porter with its decision in the case of Robert J. Van Hook, another military veteran and death-row inmate, this time from Ohio. In November, the same judges reversed the appeal court’s judgment in this case. He had robbed and murdered a man whom he picked up in a gay bar. The only difference was that Van Hook had been dismissed from the army for alcohol and drug abuse.

The appeals court had acquitted him on the grounds of insufficient representation by his trial lawyer of several mitigating factors, which included a history of mental illness, cruel treatment at the hands of parents and his witnessing as a child his father trying to murder his mother. Linda Greenhouse is intrigued how two different standards came to be applied, particularly when both Van Hook and Porter had traumatic childhoods. We have perhaps not heard the last word on the subject. Also, we do not know how the Porter ruling will impact the nearly 3,300 convicts languishing on death row. More significantly, the compassion shown to Porter is something that the Indian judiciary may like to ponder whenever it is called upon to decide on the culpability of ex-servicemen in a criminal court.

In another case, the U.S. Supreme Court refused (December 3, 2009) to stay the execution of Bobby Wayne Woods (44), who was convicted for a 1997 murder of an 11-year-old girl in Texas. His lawyers argued that Woods was too mentally impaired to qualify for capital punishment. Over the years, his intelligence quotient ranged between 68 and 86. Support was sought from the 2002 decision by the same court that reprieved one Daryl Atkins, who had been convicted for abduction, armed robbery and capital murder. This lenience was on the basis mainly of a forensic psychologist’s testimony that Atkins was mentally retarded. Justice Paul Steven, who wrote the 6-3 judgment, said that death to such a person was an “unusual and cruel punishment” prohibited by the Eighth Amendment.

For some reason, the Atkins decision did not come to the rescue of Woods. Legal experts believe that the 2002 ruling had left behind a grey area as to who qualified and who did not on standards of impairment. This was possibly left by the U.S. Supreme Court to be decided by State courts. It is reasonable that the I.Q. score is perceived as a good standard to determine the degree of mental impairment. Professor Maurie Levin, who teaches law at the University of Texas and who defended Woods, told the court that Woods’ I.Q. was around 70 and that this was “the magical cut-off point for determining whether someone is mentally retarded”. The court was not impressed with this argument and gave the green signal for Woods’ execution.

A third case before the U.S. Supreme Court that has received some publicity now is the one from Alabama. Here, one Billy Joe Magwood is on death row for murdering a County Sheriff in 1979. The then State law imposed two conditions for a death sentence: the offence on hand should be within a list of 14, and there should be some aggravating circumstances under which it was committed. Magwood satisfied the first but not the second condition. Unfortunately, his lawyers were harping right through on grounds other than the absence of “aggravating circumstance”. They brought this up only in 1997, more than 15 years after he was sentenced to death and 12 years since his re-sentence.

The U.S. Court of Appeals rejected Magwood’s appeal in January 2009 as being too late. In projecting a humane face, the U.S. Supreme Court has however now agreed to hear Magwood in spring. The court has made it clear that it will discuss not the rightness of the sentence but whether Magwood’s new lawyers were too late in raising the point that what Magwood did in 1979 was not a capital crime at that time. Not many gave Magwood a chance of being heard by the apex court. This is no doubt a victory of sorts for the defendant. But what is more significant is that the apex court chose to spare time amidst its tight schedule to examine a purely technical point.

This reveals high sensitivity and compassion to a convict and is in sync with one of its 2008 decisions (Kennedy vs Louisiana), when it held that it was unconstitutional and disproportionate to award death sentence to a child rapist, however abominable his act might be. This ruling did not exactly gel with hardliners in the country. I thought this was an endeavour to show a humane face because what will ultimately be remembered about a court is not how resolute it was but how articulate and skilful it was in meshing firmness with mercy and kindness. Superior courts would distinguish themselves if they conformed to this exacting standard while dispensing justice.