Ambedkar’s Desiderata

By Ram Chandra  Guha

Over the years, the makers of modern India have been parochialised by the sect or state to which they originally belonged. Rabindranath Tagore, whose stories and especially essays are of universal appeal, is now considered an icon of Bengalis alone. Vallabhbhai Patel, without whose efforts India would not be a united nation, is now hardly remembered outside Gujarat. Jawaharlal Nehru, who helped nurture a democratic ethos across India, is now the property of a single party.

A fourth Indian who has become a victim of sectarian diminution is B.R. Ambedkar. He is now known only for his contributions to the emancipation of the subaltern castes. To be sure, he did a great deal to instil a sense of dignity among the oppressed. But we seem to have forgotten that he was not just a militant Dalit, but also a wise democrat, whose life and thought can profitably be studied by all Indians, regardless of the caste or religion to which they belong.

This week, we celebrate the 60th anniversary of the Indian republic. Our republic owes its existence to a constitution whose drafting was overseen by  Ambedkar. In his last speech to the Constituent Assembly—delivered on November 25, 1949—Ambedkar issued three warnings that are compellingly relevant to the predicament that the nation finds itself in today. First, he urged his compatriots to “abandon the bloody methods of revolution”. In the circumstances of colonial rule, there were grounds for taking to the streets to protest, and even perhaps to use violence. But with the coming of a free, sovereign and democratic republic, wrote Ambedkar, “there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us”.

Ambedkar would have been appalled by the activities of his fellow Maharashtrian, Raj Thackeray. But he would have had no time either for the Maoists, who claim to speak on behalf of the disadvantaged. He would have urged them to persuade rather than coerce citizens to their point of view, to abandon the gun and enter the democratic process that the Constitution had legitimised.

At the same time, Ambedkar would have been sharply critical of the conduct of the mainstream political parties themselves. In that final speech to the Constituent Assembly, he invoked John Stuart Mill in asking Indians not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There was “nothing wrong”, said Ambedkar, “in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness”. His worry was that in India, “bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.”

When he spoke these words, Ambedkar may have had the possible deification of the recently martyred Mahatma Gandhi in mind. But they seem uncannily prescient about the actual deification of a later and lesser Gandhi. In the early 1970s, Congressmen began speaking of how “India is Indira and Indira is India”, a process that culminated, as Ambedkar had foreseen, in the eventual dictatorship of the Emergency. Now, a generation later, the party chooses to be more ecumenical, distributing its veneration equally among four Gandhis, two of whom are deceased (Indira and Rajiv), two others living (Sonia and Rahul).

Last year, on a visit to Arunachal Pradesh, I was taken from the Rajiv Gandhi University—where I was staying—to see the Indira Gandhi State Museum. The next day, I drove from Itanagar to Guwahati. Just before crossing the Brahmaputra, I passed a gleaming yellow structure built by the Assam government—this, a board informed me, was the Rajiv Gandhi Indoor Stadium.

Such naming of parks, offices, airports, sarkari schemes and so on after Indira and Rajiv is ubiquitous across India. Their contributions are remembered and honoured; their errors forgotten or suppressed. They are even given credit for policies that were actually the work of other Congress prime ministers. Thus party and state propaganda insist that Indira rather than Lal Bahadur Shastri initiated the Green Revolution, and that Rajiv rather than P.V. Narasimha Rao liberalised the economy.

The cult of the Nehru-Gandhis, dead and alive, is deeply inimical to the practice of democracy. It has led to the corruption and corrosion of India’s premier political party, whose own example in this regard has been eagerly followed by the regional formations. Travelling through Tamil Nadu last month, I was met at every turn by ever-larger cutouts of the heir apparent, M.K. Stalin—of Stalin smiling, Stalin writing, Stalin speaking into a cellphone. The only other place where I have felt so stifled by a single face was in the Syria of Bashar Assad; but then the last time I went to Punjab, the Badals were in opposition, and I have not visited Lucknow since Mayawati became chief minister.

Parties professing violent revolution are antithetical to democracy; so, too, warned Ambedkar, are parties based on the principle of bhakti or hero-worship. The proliferation and increasing influence of the political family firm has led, as he had feared, to the subversion of our public institutions. In New Delhi, the Congress chooses ministers, governors and secretaries to government on the basis of loyalty or sycophancy rather than competence. The same practice is followed by regional parties with regard to the public offices that lie within their gift. Sometimes, it is the power to bribe rather than the ability to flatter that proves decisive in obtaining the job one desires.

India has been called a “dynastic democracy”. Perhaps it would be more accurate to call it a darbari democracy. The atmosphere in national and state capitals resembles nothing so much as a medieval court. Intrigue and gossip are rife. Those who seek public office nudge themselves ever closer to the inner circle of the King, the Queen, or the Prince-in-Waiting. Those who already hold public office have one eye on their job and another on what needs to be done, sycophantically, to retain it. This is as true of Mayawati’s Lucknow and Karunanidhi’s Chennai as it is of Sonia’s New Delhi.

Things are only superficially different in states dominated by ideologies rather than personalities. Where the Bharatiya Janata Party is in power, political preferment is crucially dependent on one’s equations with the Rashtriya Swayamsevak Sangh. In  communist-ruled West Bengal, even secretaries to government and vice-chancellors are known to make regular visits to the CPI(M)’s headquarters in Alimuddin Street. Here, as elsewhere in India, a vast majority of jobs in the state sector, whether of low, high or middle rank, are filled by men (and less often, women) who are not best qualified for them.

The one part of the public sector that remains somewhat insulated from corruption and sycophancy is the sphere of science. The Indian Institute of Science still produces research of quality, and the Indian Space Research Organisation still executes the tasks assigned to it with a degree of competence and professionalism. Otherwise, our public institutions are in a state of atrophy and decay. This hurts the poor far more than the rich, for they are dependent on the sarkari iskool and the sarkari aspatal—no Doon School or Apollo Hospital for them. Denied equality of opportunity, they are also denied the benefits of redistributive policies, with a large chunk of the welfare budget intended for their succour instead going into the hands of politicians and contractors.

This brings us to Ambedkar’s final warning, which was that “political democracy cannot last unless there lies at the base of it social democracy”. As he pointed out, “on the social plane, we have in India a society based on the principle of graded inequality, which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty”. On January 26, 1950, by adopting a democratic constitution, India upheld the principle of “one man one vote and one vote one value”. However, our society continued to be deeply inequitous, “deny(ing) the principle of one man one value”.

“How long shall we continue to live this life of contradictions?” asked Ambedkar. “How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

The Indian Constitution recognised two groups that had historically suffered most from inequality. These were Dalits and adivasis. The chief spokesman for the tribal interest in the Constituent Assembly was Jaipal Singh Munda, a man of character and flamboyance who deserves to be more widely known today. He was a brilliant hockey player—he captained the Indian team to victory in the 1928 Olympics—and a still more brilliant orator. When Nehru moved a resolution in the Assembly proclaiming India a sovereign and democratic republic, Jaipal made a stirring speech interpreting the proclamation from his people’s point of view. “As a jungli, as an adibasi,” said Jaipal, “I am not expected to understand the legal intricacies of the resolution. But my common sense tells me that every one of us should march in that road to freedom and fight together. Sir, if there is any group of Indian people that has been shabbily treated, it is my people. They have been disgracefully treated, neglected for the last 6,000 years. The history of the Indus Valley civilisation, a child of which I am, shows quite clearly that it is the newcomers—most of you here are intruders as far as I am concerned—it is the newcomers who have driven away my people from the Indus Valley to the jungle fastness…. The whole history of my people is one of continuous exploitation and dispossession by the non-aboriginals of India punctuated by rebellions and disorder, and yet I take Pandit Jawaharlal Nehru at his word. I take you all at your word that now we are going to start a new chapter, a new chapter of independent India where there is equality of opportunity, where no one would be neglected.”

These hopes were to be falsified. For it is Jaipal’s adivasis who have gained least and lost most from six decades of electoral democracy. In terms of access to education, healthcare and dignified employment, they are even worse off than the Dalits. Meanwhile, millions of adivasis have been thrown out of their homes and forests to make way for dams, factories and mining projects intended for the producers and consumers of urban India. Thus the “exploitation and dispossession” have continued, to be answered by a fresh round of “rebellions and disorder”. It is surely no accident that the greatest gains made by the Maoists in the past decade have been in the tribal districts of central and eastern India.

Apologists for the Maoists sometimes try to appropriate Ambedkar to their side, on the grounds that Dalits and adivasis have no option but armed struggle to resist and overcome their oppressors. But, as the remarks quoted earlier in this essay make clear, Ambedkar abhorred violence, rejecting it as a means of settling political disputes. In fact, he even had little time for non-violent protest on Gandhian lines. He was a constitutional democrat, who believed that arguments between citizens had to be resolved through the means of the press, the law courts and the legislature.

It was as a patriot and democrat that Ambedkar uttered those warnings in his speech of November 1949. Recalling them 60 years later, one may be inclined to despair. I think that Ambedkar himself would have demanded that we renew and redeem the idea of India rather than abandon it altogether. Vigilance rather than cynicism may be the correct response to the crisis our state and society are currently faced with.

Let us begin by acknowledging that what we now confront is indeed a crisis. Through the first half of the Noughties, there was much careless talk about our imminent rise to superpower status. After the recession, such talk receded, only to revive after the emphatic victory of the United Progressive Alliance in the elections of 2009.

hose who claim that India is a “rising global power” offer two statistics in their support—first, that, unlike China or Pakistan, we have held 15 general elections in a row; second, that, unlike the nations of Africa and Latin America, our growth rates are in the region of 8 per cent and 9 per cent. Aldous Huxley remarked of the Taj Mahal that marble conceals a multitude of sins. In the same manner, the statistics purporting to capture the political and economic achievements of India conceal, among other things, shocking inequalities in wealth and living standards; a third-rate education system and a fifth-rate healthcare system; a criminal justice system on the verge of collapse; a serious and still growing left-wing insurgency in central India; continuing tensions in the states of the northeast and northwest; a spate of farmer suicides in the countryside; rising crime rates in the cities; rapid and possibly irreversible environmental degradation in both city and countryside; a fragile neighbourhood (with Pakistan mired in sectarian conflict and Sri Lanka and Nepal scarred by civil war); and more.

Arguably, the last time India faced a crisis of such proportions was at its birth. When Mahatma Gandhi died, in January 1948, the nation was confronted with religious rioting, food scarcities, a communist insurrection, angry and homeless refugees, and recalcitrant princes holding out for independent states of their own. If these (and other) problems were tamed and transcended, it was largely because of the visionary yet very focused leadership provided by the men and women whom Gandhi had trained. These included Vallabhbhai Patel, Jawaharlal Nehru and Maulana Azad at the centre; C. Rajagopalachari and B.G. Kher in the states; and Mridula Sarabhai and Kamaladevi Chattopadhyay in the domain of civil society. These names are but a sampling of the thousands of Indians who, inspired by Gandhi, helped pick up the pieces of a divided and desperate nation and put it back on the road to survival.

The document that finally marked the end of the nation’s teething troubles, and sign-posted its future, was of course the Constitution, which came into effect on January 26, 1950. Remarkably, the man who piloted this Constitution through the Constituent Assembly was himself a lifelong opponent of the Congress. How and why Ambedkar was chosen as the first law minister of the government of independent India remains a mystery. It has been speculated that Gandhi instructed Nehru and Patel to include Ambedkar in the cabinet, on the grounds that freedom had come to all of India, not merely to Congressmen. This seems in keeping with Gandhi’s extraordinary combination of personal generosity and political sagacity, whereby he was willing to overlook Ambedkar’s savage denunciations of himself in view of the younger man’s acknowledged abilities as a scholar and administrator.

India was united, and made democratic, by a “team of rivals” sinking their differences to work together in a larger cause. The phrase in quotes is borrowed from a book by an American historian, which deals with how Abraham Lincoln worked with his political adversaries in seeing the United States safely in and out of a bloody civil war. But it applies with equal force to the circumstances of newly independent India, when men and women of clashing temperaments and opposed ideologies likewise came together in the interests of their nation.

Between 1947 and 1950, the task before India’s political leadership was to ensure the nation stayed together. Now, in 2010, we need not fear any more that the nation will break up into many parts. However, despite 60 years of electoral democracy, India remains a society riven by hierarchy and inequality. The life chances of a woman are worse than that of a man, of a villager worse than that of a city-dweller, of a Dalit worse than that of a Brahmin, of an adivasi worse than that of either a Dalit or a Brahmin.

Some of these hierarchies have their basis in deep historical processes; others are of more recent origin. Gore Vidal once said of his adopted homeland, Italy, that it combined the worst features of capitalism and socialism. In some respects, contemporary India combines the worst features of capitalism, socialism and feudalism. Thus, the spurt in economic growth has widened the gulf between the wealthy and the poor, this compounding the gulf between official and citizen that was the legacy of state socialism, which itself compounded the gulf between mental and manual labour that was the legacy of the caste system.

Personal behaviour reflects these broader trends in social inequality. The successful capitalist has contempt for those who do not earn as much as him; so too the powerful bureaucrat or politician for those who hold less power. On their part, the poor and the powerless tend to be deferential; taking these asymmetries of privilege to be divine or preordained, rather than particular creations of particular men behaving in, as it were, less-than-democratic fashion.

n that last speech to the Constituent Assembly, Ambedkar asked, “What does social democracy mean?” He supplied this answer: “It means a way of life which recognises liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy…. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.”

For a democracy to function at somewhere near optimum potential, three sectors have to simultaneously pull their weight. These are the state, the private sector and civil society. In 1947, when the nation was born, civil society was weak and the private sector risk-averse. The centre held, and a democratic constitution came into being, only because the energy and capability of the state compensated for the limitations of the other two sectors. Now, 60 years later, we have a dynamic private sector and an energetic civil society. It is the state that is wanting.

In the 1990s, Narasimha Rao and Manmohan Singh initiated a series of economic reforms that unleashed a surge of creativity and productivity in the private sector. Those reforms were both necessary as well as overdue. However, they now need to be complemented by a second set of reforms, aimed this time at making the government more productive and efficient. For, the task of the private sector is merely to increase the size of the cake. To make economic growth more equitable and sustainable must largely be the responsibility of the state.

The first institution in urgent need of renewal is the Indian political party. This must no longer be run as a family firm; rather, it should be open to individuals who can make their way up the party hierarchy on the basis of ability and ambition, rather than birth. The Congress became a national party because of the patient work done in nurturing state units by four generations of hard-working politicians. The first generation consisted of, among others, Bal Gangadhar Tilak, Gopal Krishna Gokhale, Lala Lajpat Rai and Bipin Chandra Pal; the second generation of M.K. Gandhi, C.R. Das, G.B. Pant, Maulana Azad, etc; the third generation of Subhas Bose, T. Prakasam, Jawaharlal Nehru and their colleagues; the fourth generation of K. Kamaraj, Y.B. Chavan, S. Nijalingappa, Sucheta Kripalani and others.

Only one of the individuals named in the preceding paragraph was the child of a politician. Nor was this experience peculiar to the Congress. Those who built the dmk and the Akali Dal were likewise born into homes unmarked by wealth or privilege. It is this silent and often self-effacing work that forms the forgotten background to the rise of the Nehru-Gandhis, the Badals and the Karunanidhis, who, in a manner of speaking, have all thrown away the ladder that brought them to the top.

Second, the civil services at both central and state levels need to be freed from arbitrary political interference. Postings and length of tenure must be decided on the basis of a person’s capability and performance rather than his caste affiliation or his proximity to an MLA, MP or minister.

Third, this restoration of institutional autonomy must be extended to other state sectors such as education. Politicians should no longer decide who will head universities or research institutions; rather, the process must be in the hands of the academicians themselves.

Fourth, there should be more lateral entry into government, particularly (but not exclusively) at the higher levels. Professionals from outside the state sector must be encouraged to join it. As things stand, generalist services such as the IAS are assigned jobs for which their background does not prepare them. Who is to say that an experienced doctor or hospital administrator would not make a better health secretary, or a senior lawyer a better law secretary, than those who currently occupy these posts?

Fifth, our judicial process has to be made more transparent and efficient. There must be a greater willingness, among politicians and judges alike, to prosecute and send to jail those palpably guilty of corruption.

This list of required reforms is indicative rather than comprehensive. But that the Indian state needs to be reformed and reinvented is manifestly clear. The question is: do we, in the year 2010, have the leaders who can finally redeem the pledges made by the framers of the Constitution in 1950—leaders who can make India, in Ambedkar’s terms, a proper social democracy rather than a mere political democracy?

Some years ago, I wrote that while a democracy needs to be founded by visionaries, in mid-career it can be led by mediocrities. I now think that to have been a careless judgement. The times we live in, and the expectations engendered by them, call for leadership that is rather better than mediocre. The men and women who now rule India—whether from the centre or in the states—seem concerned, above all, with survival: the survival in his present post of an individual politican; the survival at the apex of the organisation of a particular family; the survival in government of a particular party. To plausibly and successfully redeem the ideals of the republic, however, this shall not be enough.


(The writer is the author of India after Gandhi. He may be contacted at ramachandraguha@yahoo.in.)

http://www.outlookindia.com/article.aspx?263878

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Limits on legislative privileges

THE PUBLIC IN THE REPUBLIC SERIES INDIAN EXPRESS

U.P. ASSEMBLY CASE, 1964 H.M. SEERVAI’s close associate T.R. Andhyarujina, on how India’s greatest constitutional commentator was called to defend the indefensible

THE Constitution of India was brought into force on January 26, 1950, which we call the Republic Day. It is a matter of satisfaction for India that its Constitution has survived for sixty years, keeping alive its democratic institutions when contemporaneous Constitutions of other countries have failed. Sixty years after the advent of our Constitution it is right to recall the eminent lawyers who in the early days of our Constitution helped to enlighten it and firmly lay its foundation. Foremost amongst these lawyers was the late H.M. Seervai.

In the early days of the Constitution, there were no judicial precedents for elucidation of a written constitution. Seervai therefore invoked fundamental principles of constitutional law, always bearing in mind that it was a Constitution which was being expounded and not an ordinary law.

He was a powerful and fearless advocate, a man of courage and conviction with a great command over the English language. Uniquely, he held the office of Advocate-General of Maharashtra for 17 years. With considerable sacrifice, he devoted himself exclusively to the work of his state shunning all private practice and defended difficult and unpopular decisions in court. Though he was the principal law officer of the state he was politically neutral and knew no politician. So great was his stature that other governments sought his services.

In 1964, he was chosen by the Uttar Pradesh Vidhan Sabha to defend its apparently outrageous action of issuing warrants of arrest of two judges of Allahabad High Court in exercise of its legislative privileges. The Assembly believed that only Seervai with his fearless arguments would be able to tell the Supreme Court judges that they could not control the privileges of legislatures. He did this without hesitation. I remember how in an electrifying moment in the Supreme Court, he told the Court that its order would be disregarded as a nullity if it exceeded its jurisdiction, a statement which any other lawyer would consider not only disrespectful but imprudent.

In 1972, the Government of India chose Seervai as  its leading counsel in precedence over thethen Attorney General for India to defend Parliament’splenarypowers toamendtheConstitutioninthefamousKesavananda Bharti case before the largest bench of 13 judges of the Supreme Court ever constituted to overrule the SupremeCourt’sjudgmentinGolakNath(whichheld that Parliament could not amend fundamental rights).  Seervai argued with great vehemence for 22 days for Parliament’sunrestrictedpowerstoamendtheConstitution including fundamental rights. After 67 days of hearing,sixjudgesupheldhisview,othersixjudgesheld that Parliament’s power to amend was limited by impliedlimitations. TheremainingJudgeJusticeKhanna titled the balance. Whilst holding that power to amend the Constitution was plenary, he said Parliament could notchangethebasicstructureoftheConstitutionbyan amendment. Justice Khanna’s view was considered as theviewofthemajorityofjudges.

Later in 1975, when Parliament in abuse of its amending power made amendments to the Constitution to validate Mrs Indira Gandhi’s election, Seervai had the intellectual courage to change his view. He then subscribed to the theory that Parliament’s power to amend the Constitution was limited by the basic structure of the Constitution.

In 1961, Seervai believed that the time had come for him to devote his energies to correct and critically comment on the  judgments of the Supreme Court. For 30 years he devoted himself to writing his magnum opus, The Constitutional Law of India in three volumes. It was a highly critical commentary on the decisions of the Supreme Court. In the book he boldly stated that a decision of the Supreme Court was “productive of a great public mischief and should be overruled”. The book has become a book of reference not only in India but in other countries of the world. In that sense unlike other eminent lawyers who also contributed to the exposition of the Constitution but have died, Seervai still lives in courts.

Recognition of his work came in many ways. He was offered a judgeship of the Supreme Court twice which hedeclined. HewasconferredthePadmaVibhushanin 1972. He was made a Fellow of the British Academy. Government of India desired to appoint him the Attorney-GeneralforIndiain1971. Hedeclinedtheoffice stating that the best contribution by him would be to embodyinsuccessiveeditionsofhisbookthecorrectjudicial interpretation of the Constitution. At the age of 89, Seervai continued to labour on the last edition of his monumental book. He completed the last page on the day preceding his death. He died on Republic Day on January 26, 1996. The writer is a senior advocate of the Supreme Court, former SG, and appeared with Seervai in many cases

CASE

In 1964, a 7-judge bench of the Supreme Court delivered its advisory opinion in a Presidential Reference. This followed a dispute between the Allahabad High Court and the UP State Legislative Assembly. The Assembly had issued a warrant against the intervening high court judges.

JUDGMENT

The issue before the Court was the proper limit of legislative privileges. The Supreme Court advised that separation of powers must be respected, and antiquated notions of Parliamentary supremacy was irrelevant in the Indian context.

IMPACT

The debate over legislative privileges persists till date. The principles in the advisory opinion have prevented possible future abuse.

Opening up higher education – T M A PAI FOUNDATION CASE 2002

T.M.A.PAI FOUNDATION, 2002 FALI S NARIMAN marks six decades as the Constitution’s conscience-keeper

“TRADITION has it”, Justice William Brennan of the US Supreme Court famously said, “that law is not made by judge alone, but by judge and company.” Adjudication at the highest court is indeed a partnership between the Bench and the Bar. Nobody epitomises this partnership more than the contribution of Fali Sam Nariman to the rulings of the Supreme Court.

FALI S NARIMAN

FALI S NARIMAN

Nariman first appeared on the national scene in Golaknath’s case alongwithNaniPalkhivala.Afterbeing appointed Additional Solicitor General in 1971, he represented the government on major Constitutional issues. He was set to become the Solicitor General, but destiny willed otherwise. Emergency was imposed and he resigned from office–the only public official to resign his post in protest of the Emergency. Years later he wished that he were the Attorney General so that his resignation would have created a greater impact! He argued several leading cases before the Supreme Court involving fundamental rights. He defended the right of press in The Indian Express case where the Supreme Court struck down the order of the Delhi government threatening to demolish The Express buildings as violative of the Constitutional right of free press. He defended the Constitutionally guaranteed right of the minorities in several leading cases culminating in the T.M.A.Pai Case. But his greatest contribution lies in protecting the independence of the court and the integrity of the judicial process.

He was the lead lawyer in the Second Judges case where the judiciary took over the right to appoint judges, securing the power of judicial review over legislations specifically exempted from judicial review by Parliament (Ninth Schedule Case), championing the cause of the subordinate judiciary for a better pay and terms of service. (All India Judges Association case) Working with him, I saw that he was thinking about the brief even after the briefing was over. His mind would penetrate to the deepest aspectofacaseandexpressitinamannerthat wouldsoundvery obviousto the judge.

Being a private practitioner enabledhimtotakepositionsandcases which were at odds with that of the establishment; he rejected the office of the Attorney General several times. Although the NDA governmentnominatedhimasRajyaSabha member, it did not stop him from criticisingthegovernmentonminority rights or successfully challenging the divestment of oil firms, a major policy decision, in the Supreme Court. He returned the brief for the Gujarat government in the Narmadawaterdispute,whentheChristian minority complained of attacks.

Nariman’scontributionswerenot confined to the courtroom. Many a time the institution of an independent judiciary has to be protected from attacks by the legislature and the executive, but sometimes it also has to be protected from the judges themselves. His personality and a lively pen enabled him to ask judges to exercise restraint in exercising theircontemptjurisdictionandmore forthcoming on issues on judicial accountability. Assisting him on a case, I recall Chief Justice Patnaik complaining to Nariman (who was appearing before the Chief Justice) about the enormous workload and how judges of other supreme courts do not have to bear similar burden.

Prompt came the reply– “it just shows the confidence of the citizens in this Court!” In a career as long as that of the Constitution and the Supreme Court, it was this confidence which Nariman strove to live up to.

Vivek Reddy was a junior to Fali Nariman, and is currently an advocate in the AP High Court

CASE

T.M.A.Pai Foundation v. State of Karnataka, deciding by an 11-judge bench of the Supreme Court in 2002

JUDGMENT

The scope of governmental regulation in unaided educational institutions was curtailed. The court held that the state cannot interfere if the admission was on merit and a reasonable fee was being charged. However, minority educational institutions receiving aid from the state would have to admit a reasonable number of students from non-minority groups.

IMPACT

The case has changed the legal landscape for higher education. Unaided Professional Educational institutions became more autonomous. Educational institutions started their own entrance examinations. Based on this, the Supreme Court in the Inamdar case held that reservation is private institutions is unConstitutional. Parliament passed a Constitutional amendment to overcome this. The validity of this amendment is yet to be decided upon.

Inherent rights of citizens – HABEAS CORPUS CASE

THE PUBLIC IN THE REPUBLIC SERIES / INDIAN EXPRESS

HABEAS CORPUS, 1976 SHANTI BHUSHAN lost the case, but his arguments endured

“NONE” was the one-word answer senior advocate Shanti Bhushan gave an Australian journalist who asked him if he was under any pressure while taking on the entire ruling establishment led by then Prime Minister Indira Gandhi against the declaration of Emergency. At the time of the interview, Bhushan had fought hard and just lost the ADM Jabalpur case, also known as the “Habeas Corpus case”, during the darkest hours of the Emergency in 1976. The Supreme Court of India had, as public opinion decided in retrospect, committed a “supreme mistake” by agreeing with the government’s self-declared right to detain citizens without reason or trial under the draconian Maintenance of Internal Security Act.

SHANTI BHUSHAN

SHANTI BHUSHAN

Hundreds of students, social workers, journalists, political workers, ordinary men and women were under detention. Nine high courts had refused to budge against the government decree. The country was tense, and all eyes were on the Supreme Court Bench led by then Chief Justice of India A.N. Ray to show the government its place, and Bhushan, they had hoped, was their man to do it.

“He (the Australian journalist) asked me if there was any attempt to put pressure on me to not conduct the case,” says Bhushan, relaxed at home on his weekend away from the Supreme Court, where he is till a force to reckon with. “The only pressure they (the government) could put on me was that of imprisonment. I was not afraid of that. My parents had spent their time in jail as freedom fighters. I had been to jail too for a week. I was not afraid of that pressure,” he said.

A moment later, looking towards the distance, he said: “But if they had threatened to kill my children unless I withdrew from the case… then I am not so sure whether I would have been able to resist the pressure.”

Bhushan says he was called from Allahabad to lead the arguments in the Habeas Corpus case. He was also the lawyer who represented Raj Narain and won a judgment from the Allahabad High Court on June 12, 1975 which declared the electoral victory of the Rae Bareilly seat by Indira Gandhi as void due to electoral malpractices. Ms Gandhi was cross examined by him. The case triggered the Emergency.

“The judgment in the Raj Narain case had won me international acclaim,” he said, adding that the Habeas Corpus case was only an extension of the Raj Narain matter.  Bhushan describes the SC judgment delivered in 1976 as the “blackest day in the lives of the judges”. He says the judgment was “universally accepted as the darkest chapter in the life of the Supreme Court when majority of the judges on the Bench succumbed to burning ambition”.

CASE

Additional District Magistrate, Jabalpur v. Shiv Kant Shukla and Others, better known as the ‘Habeas Corpus case’, was delivered by a 5judge bench of the Supreme Court in 1976.

JUDGMENT

Four of the justices ruled that preventive detention was permissible since the protection of life and liberty (under Article 21) was suspended while the Emergency was in force.

IMPACT

This decision is described as the nadir in the 60 years of the Indian Supreme Court. It is often argued that the latent guilt arising out of this case drove an era of unprecedented judicial activism, especially in human rights.

Protecting the environment OLEUM GAS LEAK CASE, 1986

THE PUBLIC IN THE REPUBLIC SERIES / INDIAN EXPRESS

M C MEHTA, who was single-handedly responsible for making environmental degradation a part of public discourse, says it is vital that PILs have no ulterior motive

“GAS HAS leaked. The gas is travelling. I am worried about your lordship’s life”. Environmental lawyer Mahesh Chander Mehta relives what he told the Chief Justice of India P.N. Bhagwati on December 4th, 1985. Oleum gas had just leaked from the Shriram Chlorine plant in Najafgarh, and Delhi had panicked.

By a strange coincidence, M.C. Mehta had filed a public interest litigation against the Chlorine plant a month earlier (before the gas leak), and was scheduled to argue another case before the Chief Justice of India on December 4th. When the matter came up, Mehta referred to the Oleum gas that had leaked just three hours earlier. “The gas leaked at 11 am; the case was listed and heard at 2 pm; the court immediately issued a notice” gushes Mehta. “No case has been heard this quickly”. Nor perhaps judged so decisively. In siding with Mehta, the Supreme Court punished the company heavily; the entire complex eventually shut down. More far reaching, the Supreme Court created the `absolute liability principle’ — companies engaged in inherently hazardous activities had absolutely no excuse when an accident occurred.

M C MEHTA

MC MEHTA ENVIRONMENTAL LAWYER

For this Jammu University law graduate, the Oleum Gas Leak case was just one of many landmark environmental cases where his doggednessyieldedresults.

Mehta’szealcoincidedwiththegrowthofPILsinIndia, wherethecourtrelaxed`locusstandi’ restrictions and enforced a wide range of socio-economic rights. His 1984 PIL on pollution around theTaj Mahal damaging its white marble resultedinthe”SupremeCourtrelocating industrial units and even closing down many. The Mathura refinery, a big offender, had to reform.” Over the years, M.C. Mehta has expanded theideaofIndiainotherways–from filingPILsthatcleaneduptheGanga to those that introduced CNG to Delhi. The result: cleaner rivers and clearer air in the capital city. For his efforts, Mehta won the Ramon Magsasay award in1997.

Mehta, who championed green causes long before it was fashionable, has a word of advice for young environmental lawyers. “People who file in court must never have any ulterior motives”, he says. He also believes that PILs must be filed only after proper research. “Sometimes I spend two years reading up before filing a PIL, he says. “It’s very important that you are in a position to honestly assist the court.”

Mehta admits that the awareness level for green causes has gone up now. But he insists that  environmental litigation will always be an unequal battle. “You are fighting people with lots of resources at their command. So the struggle must continue.”

— VINAY SITAPATI

CASE

M.C. Mehta v. Union of India, popularly known as the Oleum Gas Leak case, was decided by a 5-judge bench of the Supreme Court in 1986.

JUDGMENT

The court held that any enterprise that is engaged in an inherently dangerous activity is `absolutely’ liable to compensate all those affected by an accident. They key feature of the judgment was the principle of `absolute liability’, in which no exceptions (such as an `act of God’) are brooked.

IMPACT

The case took place soon after the Bhopal Gas Tragedy and was keenly watched as an instance of how the courts would deal with companies responsible for environmental disasters. Unfortunately, the complex court litigation around the Bhopal Gas Tragedy was an example of what not to do in such cases

Upholding personal liberty – MANEKA GANDHI CASE, 1978

THE PUBLIC IN THE REPUBLIC SERIES / INDIAN EXPRESS

MADAN BHATIA’S advocacy was for more than one passport

WITHIN THE old, rundown corridors that make up the chambers of the Delhi High Court, Madan Bhatia calls himself a fading lawyer. It is a harsh assessment,but inthe81-yearold lawyer’s cabin, there is a sense of lifeb eingtuned to an over alll eisurely pace. The peaks have already been scaled and Bhatia exists in that genial, blissful world of content that is the prerogative of former behemoths.

Bhatia’s moment of triumph came in 1979 in the famous Maneka Gandhi v. Union of India case.  Maneka Gandhi’s passport had been annulled by the Janata Party government and Bhatia recalls the mysterious circumstances in which his association with Sanjay Gandhi took shape. “A client of mine asked me to help his friend who was in legal difficulty,” he says. Then suddenly at 10.30 pm on a night when his wife was seriously ill, he found an unexpected visitor at the door of his first-floor house. “My client asked me to come with him downstairs, saying that Sanjay Gandhi was waiting in the car,” he says. “No lawyer was willing to take his case, but I decided to help him.”

This was an arbitration dispute in Ghaziabad, but it was the beginning of a relationship of trust. “Every second day,Sanjay and Maneka used to visitmyhouse,”heremembers.Some days later, Sanjay Gandhi called him with something rather more serious.
“He told me he had received a letter informing that Maneka’s passport hadbeencancelled.”

The Supreme Court was closed for summer vacation, but a stay on the cancellation was procured “through the order of one judge who was available”. When the writ petition came for hearing in front of a three-judge bench, Bhatia’s arguments were heard for only 2-3 minutes. “They threw the file at me, saying there is nothing in the case,” he says. Bhatia argued that he had raised a substantial matter of law, relating to an interpretation of the Constitution. “By law, only a sevenjudge bench could dismiss the petition,” he says.

A seven-judge bench was appointed, and his adversary was the then-Additional Solicitor-General Soli Sorabjee. Bhatia invoked Article 21(a) — the right to personal liberty — to mount an assault on the legal understanding that any procedure established by law could deprive a person of his liberty. “In theUSConstitution,thereisaprovision for due process of law,” he says. “I argued that a due process of law mustbeestablished,andthisprocess must be just, fair and reasonable.”

The Supreme Court eventually accepted the argument and the cancellation of the passport was declared void. It was a landmark judgement, yet the legal brain who engineered it only stepped into the profession by accident. In 1955, he enrolled at Cambridge University as a student of English literature when a friend of his suggested he put his name down at the Lincoln’s Inn in London. “I told him I had no interest in law, but he asked–what is the harm?” He moved back to London, became a barrister at Lincoln’s Inn before moving to Delhi in 1961.

CASE

Maneka Gandhi v. Union of India was decided by a 7-judge bench of the Supreme Court in 1978.

JUDGMENT

The Court widened the protection of life and liberty contemplated by Article 21 of the Constitution. The Court ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be `just, fair and reasonable’ ..

IMPACT

In moving from the narrower threshold of `procedure established by law’ to the more liberal `substantive due process’ for restraining personal liberty, this decision was the precursor to the creative expansion of rights by the judiciary.

Rallying public opinion against arbitrary detention

THE PUBLIC IN THE REPUBLIC SERIES

K.K. Venugopal remembers how his father M.K. NAMBIAR took up the A.K.Gopalan case, challenging the Preventive Detention Act

MY FATHER, M.K. Nambiar belonged to a family of landlords. The landlords of Kerala at that time (1920s) were a very litigious lot. I remember my father telling me that the big tarwads (clans) would fight over a small bit of land and before the case was filed, one landlord would tell the other “I will see you in the Privy Council”. This meant that he was willing to spend any amount of money to protect what he believed to be the family prestige.

M K NAMBIAR

M K NAMBIAR

In his family, I believe my father was the only person who graduated, and later went to England as a young lawyer in the early 1930s to instruct the Queen’s Council in a dispute between two landed families. He then stayed back and did his LL.M in constitutional and administrative law, stood first and won many prizes, including one I remember vividly–a gramophone.

He was called to the Bar of the Inner Temple. Coming back, he was public prosecutor and government pleader in Mangalore in the then Madras Presidency for as long as 11 years. He then shifted to Madras at the suggestion of P. Govinda Menon who was elevated to the Bench of the Madras High Court and took over his practice. At that point of time he was doing mainly criminal cases, but had written a number of articles on constitutional law.

V .G.Rao who was later to be A.K.Gopalan’s counsel chanced upon my father arguing a criminal case by introducing Constitutional law principles to defend his client. Gopalan’s case was the lead case in a huge batch challenging the Preventive Detention Act. Realising that my father has a very good grounding in Constitutional law, Rao asked him whether he would challenge the validity of the Act before the Supreme Court. He said Gopalan would not be able to pay much by way of fees, but that all expenses would be taken care of to go to Delhi and argue before the Supreme Court. My father readily agreed.

Thereafter I remember that in his large office in Madras, there were books on Constitutional law, particularly American constitutional law strewn all over the floor as there was no space on the tables. Of course my father had a good library of UK Constitutional law, but what was more helpful was the American and Irish constitutional law texts. I was also told that when he went to Delhi, Sir K. M. Munshi who was appearing in one of the connected matters sent word to my father’s solicitor if he (Munshi) could lead the arguments, but that the solicitor informed him that as Nambiar was fully prepared, he would commence arguments.

Here was a person who was completely new to the Supreme Court and unfamiliar as far as the judges were concerned (who were of the erstwhile Federal Court). From day one, the questions posed by the judges and the answers of counsel were reported in the daily papers across the country, as this was the first constitutional law case of great significance. The judges were pleasantly surprised that the counsel could present constitutional law principles in a most authoritative fashion. As a matter of fact, many of the principles relating to fundamental rights and constitutional construction, which were not accepted at that time by the Court was later accepted by the Court in the Bank Nationalisation and Maneka Gandhi cases. Those principles, argued 30 years earlier, then became the law of the land.

InGolakNath,myfatherhadputforwardtheprincipleofthe”basicstructure” of the Constitution by way of arguing there were `implied limitations’ which fettered the amending power of the Constitution. As a matter of fact, there was a German author–Dieter Conrad–who had enunciated the principle. I was latertoldthathehadvisitedMadrasandmetmyfatheranddiscussedtheaspect.
But this was the first time this was argued in the Supreme Court. It was later  accepted in the  esavanandacasebyamajorityof7:6,thereby making a serious in road into Parliamentary supremacy. There were further attempts to modify this judgment, which failed, and is therefore the law of the land today.

K.K. Venugopal is a senior advocate in the Supreme Court of India

CASE

A.K. Gopalan v. State of Madras was decided by a 6-judge bench of the Supreme Court on 1950

JUDGMENT

The Court rejected a challenge against the use of the Preventive Detention Act, 1950 to arrest veteran Communist leader A.K. Gopalan. Shri M.K. Nambiar’s arguments invoking a wide protection for life and personal liberty under Article 21 of the Constitution did not find favour with the bench. Instead, the Court adopted a narrow threshold of `procedure established by law’ to hold that personal liberty could be restrained as long as the same was done under an enacted law. As per this understanding, courts could not inquire into the fairness of such a law.

IMPACT

In the eyes of many constitutional scholars, this decision was the `original sin’ of the post-Independence judicial set-up. By endorsing the principle of preventive detention, individual rights were clearly subordinated to those of the Sovereign. However, the reading of Article 21 has since been expanded. Courts must now inquire into whether a law that restrains personal liberty is `just, fair and reasonable’.