Justice Ranjan Gogoi delivers the third Ramnath Goenka Memorial Lecture — The Vision of Justice

PUBLISHED IN THE INDIAN EXPRESS

Full text of Justice Ranjan Gogoi’s speech at RNG Memorial Lecture:

I express my most heartfelt gratitude to The Express Group for extending this opportunity to me to deliver the lecture which has been organised in the memory of a man who was an institution in his own right: Ramnath Goenka ji.

While unlike some of you present here, I had not had the occasion to ever meet him, but, fortunately I have not been untouched by his proud legacy. Which gleams through that what he had founded as an answer to Gandhi ji’s call to start a swadeshi newspaper. Living in the realm of the Raj, it needed an iron-will and iron man and we found it in a young Ramnath ji. His legacy also gleams through the rich jurisprudence on the Freedom of the Press that he was instrumental in moulding, and which, by virtue of my Office, I work every day. It needed a committed and a cause-driven litigant – a rarity which it is nowadays – and we found it, yet again, in Ramnath ji. During the dark days of the Emergency, he stood as an unwavering gatekeeper of those fundamental liberties that we hold so dear today and that is his legacy too.

PART 1:

Today, after all these years, some remember him as the ‘Warrior of the Fourth Estate’ 1 , some remember him as a “dogged, unyielding adversary” 2 , some remember him as an “iconoclast”, some as a “magnificent rebel”. He was, at times unapologetic, at times uninhibited, at times even contradictory, but forever fierce, forever feisty, and forever fearless. His entire life trajectory from Darbhanga to Madras to Bombay; from the Constituent Assembly to the Newsroom to the Courtrooms, is a test case of its own kind that we, perhaps, need to use more often in our lives, in our institutions. Not too long back, I had read an interesting news article talking about the surprising surge – which is not so surprising, all things considered – in the sale of George Orwell’s 1984 in the United States. That piqued my interest in revisiting the classic. And, for some reason, I want to recollect a thought from it today. “Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.”

Abhishek Manu Singhvi of the Congress party along with former finance minister P Chidambaram at the third Ramnath Goenka Memorial Lecture in New Delhi. (Express Photo by Abhinav Saha)

If I had to put it very simply, for me, this is what Ramnath ji stood for. The freedom to say that two plus two make four. And, that is how I remember him as. Someone who could call Spade a Spade. Someone who could speak truth to power. Even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others. Is it a matter of perspective? I do not know. And, I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values? Is that extraordinary phenomena losing his relevance today, after all these years? Why I have chosen the topic for this discourse merits a context too. And, this is the context. These are some sore questions, but too significant to get lost in the everydayness. And, when it is so, what other better tribute can there be to a visionary who embodied in so many ways the spirit of our Constitution, than to spend a thought. To spend a thought over how far we have come to achieve the vision that he had seen as someone who helped free the country in one era, and helped it become a meaningful Democracy in another.

PART 2:

I will use a few minutes to put across my proposition as to what I intend to say when I talk about the “Vision of Justice”. I will borrow from the Chief Editor Shri. Raj Kamal Jha himself, because it offers a very fine perspective. Very powerfully and thoughtfully and rightly, he said of Ramnath ji in one his letters to me, that, “fierce independence” and “enduring sense of inquiry without fear or favour” were the two values that Ramnath ji believed formed the “bedrock of Justice”. It is absolutely incontestable that they do and, for convenience, let me call them the Bedrock Principles. But, if I were to look at it anatomically, while these do indeed form the bedrock of Justice, what is the Form/Body of the ideal called Justice which rests on this bedrock? The Bedrock Principles have been the talk of the town lately considering how the entire thinktank is so keenly focused on it. And I am not suggesting that it ought not to be. It ought to be done and it is being done. I cannot recall the last time, the Judicial wing of the State made so much news. On a lighter note, let us recall, Hamilton (the American Founding Father) who had suggested that the Judiciary was the least dangerous branch of the State’s three branches – and I will refer to him again during the course of my address – but, were he to be here today, I wonder if he would have felt the same way. More so, in the light of the IE Top 100 Most Powerful Indians which included several names from the judiciary. But, the fact of the matter is that if we have to take stock of how we have fared – and about seven decades later since we ventured into becoming a Constitutional Order, this appears to be an opportune time to do so – we might as well do it comprehensively. And, by comprehensively what I mean is that we must evaluate both the Bedrock Principles and the Form Principles because the Vision of Justice, the way I understand it, is a compound of both. Clearly, they are not unconnected. And over the course of next about half an hour, I will attempt to touch upon both. I will begin with the Form Principles, and bear with me, in order to drive home my point, I may have to get somewhat academic.

From (L-R): Hrishikesh Roy, Chief Justice, Kerala High Court, Deepak Gupta, Judge, Supreme Court, N V Ramanna, Judge, Supreme Court, Madan B Lokur, Judge, Supreme Court at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha) 

You will agree, that in the backdrop of a bleeding mega partition, deeply entrenched inequities, perpetuating injustices, our Constitution ushered us into believing in a grand promise of transformation on a scale that was beyond reformatory. It was, in all its full glory, a revolution in all aspects of life – social, economic, political. In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. The State would be religion-neutral, the citizens equal and together. Coming to think of it, it was just as pretentious as it was unpretentious an idea. But be that as it may, public institutions (one of them being the Judiciary) were inherited, they were tweaked where need was felt, to give life to this prodigious architecture of Justice. And, here, I would like to clarify that by justice, I am not implying only the juridical connotation of the word which is the administration of justice by the courts of law – although it is just as imperative – but justice is something that is an overarching principle, an underlying fundamental, the spirit, an order so to say. Which is why I say “prodigious”.

PART 3:

Because, it was a confluence of very many philosophies – [1] the Aristotelian, for instance, which suggests that the very essence of the State is justice which according to the philosopher was a social virtue; good of others; equality and fairness. When we peruse the Preamble to the Constitution- our vision document – is it not that this ideology is enshrined in the words “Equality of status and opportunity”? [2] Or, the Utilitarian philosophy of John Stuart Mill whose view was that justice was the greatest good to the greatest numbers. In the Preamble, is this not enshrined in the principles of “Socialism”, and “Equality” yet again? [3] Or, the relatively more modern one: the Rawlsian perspective which is that justice as fairness is the most egalitarian and also the most plausible concept of liberalism. In the Preamble, is this not reflected in the words “Liberty of thought, expression, belief”. So, the Preamble, if you deconstruct it precept-wise, is the very embodiment of these ideas. Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few. They are not isolated silos because their undying endeavour is to establish one discipline – of overall justice, of an inclusive society. And, this is exactly what I meant by the Form Principles of Justice as an ideal. As a composite unit called Justice, these had been intended to be achieved by the Legislature, the Executive and the Judiciary.

Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few — Justice Gogoi in his address. (Express Photo by Tashi Tobgyal)

Now, it will make for an incredibly interesting and if I may add overwhelmingly contentious tale to tell as to how the Executive and the Legislature have performed on this front. But the scope of my discourse will be limited to the judiciary’s endeavour in this regard. A few months back, I had the occasion to deliver the Justice P.D. Desai Memorial Lecture, at Ahmedabad. And, there I had proposed that attaining Constitutional Idealism was not like chasing a rainbow and the Supreme Court, through its pronouncements, had been reflecting it. It would not be a display of the pessimism of the intellect today, if I were to say that while, indeed, attaining Constitutional Idealism (= Vision of Justice) is not like chasing a rainbow, but, it is so only in the courtrooms. Perhaps, because fields are where the rainbows are (“fields” being the operative word). The point being that the way nation is built and the way this grand Vision of Justice is attained in the confines of the courts through judicial pronouncements and the way they are built on the ground are two very disparate realities. Agreed, the aspirational aspect of the Constitution and the operational aspect of the Constitution will always be two different notions. The aspirational aspect is high idealism of a kind that is almost moralistic and preachy. The operational aspect has to do with the very strange realities of the ground, almost defeating. But then even if we may be slow to move to bridge the gap between the two, which itself is not an acceptable compromise either, but we must, at the least, not become retrograde.

Justice Ranjan Gogoi: The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. (Express Photo by Tashi Tobgyal)

Take for example the 2015’s ruling in Shreya Singhal v. Union of India 3 (2015). It is a celebrated judgment, where the Supreme Court held that the public’s right to know was directly affected by Section 66A. Interestingly, while doing so, the Court was certainly inspired by, amongst other rulings, Romesh Thappar v. State of Madras 4 (1950); Brij Bhushan v. State of Delhi 5 (1950); Bennett Coleman & Co. v. Union of India 6 (1973). If you would recall, these were perhaps some of the earliest pronouncements protecting an Independent Indian’s Speech and Expression and were delivered in the light of the rights of the Press, which verdicts themselves had endorsed that a democracy was a marketplace of ideas where the people had a right to know; that prior restraints were anathematic to a democracy and that the freedom of speech and of the press is the Ark of the Covenant of Democracy. Shreya Singhal took this legacy ahead as it improved upon the jurisprudence on the independence of the Press to attain and promote the Constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom. Not once, but multiple times. But has it translated into reality? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves. On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis. On the 19 th June, The Indian Express had published a very insightful article (selected from The Economist) titled as ‘How Democracy Dies”.

From (L-R): Acting Chief Justice of Delhi High Court Justice Gita Mittal, Former Law Minister Ashwani Kumar, CPI leader D Raja and jurist Soli Sorabjee at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha)

It said, at one place, that, “…independent judges and noisy journalists are democracy’s first line of defence…Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.” I agree but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges. While Shreya Singhal was significant in its own right, NALSA v. Union of India 7 breathed new life into the Equality principle. The Court understood that our Founding Fathers’ vision about fundamental right against sex discrimination was to prevent differential treatment as a result of one’s not conforming to generalizations. The judgment made a momentous foray into the fountain-head of dynamism. And, I will get back to it but before I do that, I must touch upon a very fascinating judgment of 1986 vintage called Bijoe Emmanuel v. State of Kerala 8 . This was a case where three Jehovah’s Witnesses had refused to sing the National Anthem (as their tenets dictated so) when it was being sung in their school. They did stand up though. Nevertheless, they were expelled from the school. When the case found its way to the Supreme Court, while holding that the expulsion would be in violation of their Fundamental Right to ‘freedom of conscience’, the Court observed that “the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.”

Former Chief Justice of India Rajendra Mal Lodha (Express Photo by Abhinav Saha)

The court also felt the need to add a thought. And, I feel compelled to quote it. It is the penultimate line of the verdict and it says – “our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.” Recently. in Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu 9 , the Court held that even in the matters of religious beliefs, constitutional legitimacy cannot be foregone and following Justice B.K. Mukherjea in Shirur Mutt case (of 1954), went on to hold that it is not the State or the religious Indian but the Constitutional Court which decides on what constitutes essential practices of any particular religion.

Some of you could be wondering about how these judgments are even related. They are not. But, they are, at the same time. Dissimilarity is that the first one originates in a very intimate, private sphere of life and the other two originate in what everybody seems to want to have a say in – the matters of faith. But, it is the similarity that should be the take away. The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. As an Israeli judge Aharon Barak points out, it is not the transient spirits of time but the fundamental values that should be the guiding voice 10.

In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. (Express Photo by Tashi Tobgyal)

In his last address to the Constituent Assembly, Dr. Ambedkar had said that we must not only be a political democracy but a social democracy as the former cannot last unless lies at the base of it the former. And, social democracy, he defined, as a way of life which recognises liberty, equality, fraternity as one principle. I wouldn’t want to wade into knowing if we are a successful political democracy, but, I do, earnestly believe, that we are a social democracy, in all aspects. But again, largely jurisprudentially. And the disparity is there because the two Indias – both just as perceptible – are at conflict. There is an India that believes that it is the New Order and there is an India that lives below a ridiculously drawn Poverty Line on daily wages in night shelters with no access to education or healthcare, let alone access to the Courts of Law. The ambivalence is intriguing. And, this is exactly what I call as getting lost in translation. One India in the aforementioned perspective is the Vision and to know how far we have succeeded in attaining this Vision of Justice is really a matter of perception. But nevertheless, there is a graphic disparity right there and removing this disparity will be the mission for the Indian Judiciary in the times to come. And if I may add, for that to happen, it is going to require a “constitutional moment” of its own kind in the life of this institution, which I believe has been long overdue.

“I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated,” says Justice Gogoi. (Express Photo by Abhinav Saha)

The Constitutional history with reference to this institution as a whole (and, especially the Supreme Court) would show that its own role has constantly evolved in the light of the socio-political context. If 1970-1980 was the decade where it expounded the Basic Structure Doctrine, in 1980s, it constantly expanded the scope of Article 21 and by 1990s, it became somewhat of a “Good Governance Court” by innovatively interpreting Constitutional provisions to address the inadequacies consequent upon executive and legislative inactivity. In the first fifty years since our independence, the court has created a very sound jurisprudence which we continue to reap from. It is the inertia really that has kept us going till now. But the way things stand today, court processes are a trial even before the trial has begun. While I cannot say if it is a collective failure on our part but for a nation governed by the rule of law, is it not a matter of concern that to this extent at least, we are defying the idea of inclusiveness? Not a reform but a revolution is what it needs, to be able to meet the challenges on the ground and to keep this institution serviceable for a common man and relevant for the nation. For the effectiveness of the judgments to show, the justice dispensation system has to be made more result oriented i.e. to say, more focused on enforcement. I understand what Mr. Arun Shourie 11 suggests when he wonders if the judiciary is not being an “accessory to the resulting deterioration”, when it in its hopefulness and optimism, doesn’t go after its mandate till its implementation. I find it difficult to agree wholeheartedly. But I will certainly say that the judiciary must certainly be more pro-active, more on the front foot. This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitutional morality (= separation of powers) again. I will even go ahead to say that the institution, at all levels, needs to become more dynamic in the matters of interpretation of laws. And, this is what I mean to say by a constitutional moment of its own kind. However, it is going to be a tall order both at the micro level and the macro level because both come with their unique sets of challenges.

Executive Director of The Express Group Anant Goenka (left) presents a sketch to Justice Ranjan Gogoi at the third RNG Lecture in New Delhi on Thursday. (Express Photo by Neeraj Priyadarshi)

By micro level, what I mean is administration of justice on day-to-day basis. Here, the so-called “inefficiency” and “slow processes” have been historical challenges. I will put it very simply. The judiciary today is not a poor workman who blames his tools, but it is a workman with no tools. I am not going to saddle you with the figures that we keep consuming every day on pendency, arrears and judges’ strength but in the light of what a French author had once said, “Everything has been said already, but as no one listens, we must begin again.” 12 , I will only ask and request those at the helm to finally listen so that we must not have to begin again. In addition to that, I also feel that there is a pressing need to explore the endless limits of legal services mechanism. Legal awareness and legal empowerment of the marginalised in this vastly unequal society of ours, have to be a made an observable reality. Let me give you one instance which is glaring insofar as personal liberty is concerned. 67% of the prison population are undertrials, mostly belonging to the underprivileged classes and 47% of them are between the age of 18-30 years. Compare this with the U.K. where it is about 7% and the U.S. which is acknowledged to have a high rate of incarceration where the percentage is 22.7%. The period of about one year that a majority of the undertrials have been in custody would hardly redeem the situation. Will it be wrong to suggest that a fair share of our demographic dividend is being unjustifiably lodged in the jails and mostly for petty or less serious offences?

The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. (Express Photo by Neeraj Priyadarshi)

At the macro level, the judiciary as an institution is being seen as a course corrector, a leveller, a democratiser of sorts. And, since it is too well known that this country is on the cusp of an evolution, naturally it will have implications for this institution just as much. I would like you to recall that I had mentioned about Hamilton in the beginning of the discourse. While contemplating the U.S. Constitution 13 , he had said that the judiciary is the weakest of three branches because it neither has force of the Executive nor the will of the Legislature, but only judgment. This, and which I agree with absolutely, he said, was the “simple view of the matter”. The complex view is this. And which he was wise enough to warn about over two centuries ago. He had said that while the civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches.

Punjab and Haryana High Court Judge Justice Surya Kant (Express Photo by Abhinav Saha)

I would like to believe, this is why, Ramnath ji had also said that “fierce independence” is indeed the bedrock of justice. But I would like to add that “independence” must always be responsible with due regard to established Constitutional values. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may. And it has. The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution. And if introspection is where we have to begin, we might as well begin there. Perhaps, we can hope and endeavour that in the future, it is not our finality, but really our infallibility that should define us. It is my imagination of an ideal world and I am aware of what Carl Jung had said of it. He had had said that, “Every form of addiction is bad, no matter whether the narcotic be alcohol, morphine or idealism.” I don’t know how true his view holds on other counts, but as far as idealism is concerned, I would say, it should be pursued like an axiom. Thank you very much.

Jai Hind!

Law-making Amid Moral Outrage

Editorial Article Published in the Hindu

Legislators acting in response to moral outrage seen on television and during street protests and being apparently influenced by the importunate gaze of victims of crime from the gallery, does not augur well for sound law-making. It may not be right to characterise the quick passage of the Juvenile Justice (Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already been passed in the Lok Sabha in May 2015. The draft too had been slightly modified before that, based on a February 2015 report of a standing committee of Parliament. Yet, it is difficult to overcome the impression that some members may have been gripped by a bout of moral panic after the release of the youngest convict in the Delhi gang rape of December 2012. The seeming sense of urgency was undoubtedly influenced by a section of the media demanding ‘justice’ after the convict was released from a Special Home on completing his three-year term there. An impression is sought to be created that the country’s collective conscience demanded that a tough law be enacted to ensure that juvenile convicts committing heinous crimes do not get away with light sentences. An edifying aspect of this legislative episode is that there are enough voices around that understand that restorative justice is best ensured for this underclass by addressing the fundamental problems that create juvenile offenders in society in the first place, by ensuring universal access to education and social care for all children.

The Bill, which contains progressive aspects such as streamlining adoption procedures and extending the law’s protection to orphans and abandoned children, still suffers from the problems highlighted by the parliamentary panel. The government, unfortunately, did not accept the view that children in a particular age group being subjected to the adult criminal justice system will violate their right to equality under Article 14 and the objective of protecting children in Article 15(3) of the Constitution. It, however, dropped a clause that provided for treating those who had committed crimes before reaching the age of 18 but were apprehended after they turned 21, agreeing that it was unconstitutional. It extended the period of preliminary assessment (the original draft called it ‘inquiry’) by the Juvenile Justice Board to determine whether a juvenile offender should be sent for rehabilitation or tried as an adult, from one month to three months. The board’s assessment will still be subject to judicial review and may set off litigation over whether one 16-year-old was let off lightly or another was wrongly sent to an adult court. Such decisions may also be influenced by the prevailing public mood. It would have been wiser to have let the law stand in conformity with the UN Convention on the Rights of the Child, which advocates equal treatment of all children under the age of 18. The difference between sober assessment and mercurial action cannot be more starkly emphasised.

Politically coloured, legally suspect

By: J.L. Gupta PUBLISHED IN THE INDIAN EXPRESS

The clamour against the courts has been continuous. Initially, there was talk of a “committed” judiciary. Then, of judicial accountability and transparency. And so on. The latest is — why should judges choose judges? Hence, the effort to replace the collegium by a Judicial Appointments Commission (JAC). The bill has already been passed in both Houses of Parliament. Is it the right way to do so? I think, No.

Let us see what is happening in the country. Who selects ministers? The prime minister and chief ministers. Who selects the generals? The generals. Who selects army commanders? The army. Who selects government servants? The government.

Why then do we want a different method of selection for the judiciary? Why should the judiciary not be allowed to select judges? Is it an effort to destroy the one institution that has performed and exposed scams and scandals like Coalgate and 2G?

The founding fathers created a judicial pyramid. The subordinate courts were the base. Then came district courts. The high courts followed at the state level. The Supreme Court was placed at the apex. They also laid down the procedure for the selection and appointment of judges. The selection and appointments of the officers in the subordinate and district courts are made in accordance with the rules framed and promulgated by the government in accordance with the Constitution. The “control” vests in the high court. In so far as appointments to the higher judiciary are concerned,

the matter was considered by the Supreme Court in the second and third judges’ cases.

The court’s dictum has been followed. Judges to the high courts and Supreme Court have been selected by collegiums for some time now. The scope for interference by the political executive has been reduced to a minimum. Consequently, criticism from different quarters is understandable. But can the JAC improve the quality of judges?

No system of selection can be absolutely perfect. Institutions run by human beings will reflect human frailties. A fact that deserves mention is that the Constitution itself provides for Union and state public service commissions to make selections to the various services. The commissions have been in place for a long time. Has their performance been beyond reproach or even satisfactory? Have these commissions not been described as “personal” service commissions? The kind of eminent persons proposed to be included in the JAC are usually members of the state and Union public service commissions too. Yet, what do we have? Petitions in courts alleging all kinds of malpractices. Still more, states have moved petitions, prosecuted members or chairpersons of the commissions for different irregularities and even offences. Would a similar commission for judicial appointments change everything for the better? Looks unlikely.

Second, the state is the single-largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges?

Third, in a democracy, independence of the judiciary is of paramount importance. A fearless and independent judiciary is a basic feature of the Constitution of India. It is a part of the “basic structure” and should not be sacrificed at the altar of the executive’s anxiety or ego. Legally speaking, the validity of the proposed bill is extremely doubtful.

The members of the collegium also monitor the performance of judges and lawyers who have to be considered for appointment to the high courts or the Supreme Court. They examine judgments of the persons who are considered for elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.

It is alleged that the collegium does not have a mechanism to “verify the character and antecedents of judges.” I think, it is not so. The court and/ or the chief justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.

It has been suggested that judges sometimes indulge in mutual give-and-take. As a result, some people who should not have become judges at all have been elevated to still higher positions and courts, it is argued. Assuming this to be correct, can anybody claim we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that, at the highest level, files are held up till the name of a particular person is cleared by the collegium?

But is the JAC the solution? No!

A rare exception under the collegium system has the potential of becoming the rule when the final word is left to the executive. Are the series of scams and scandals that have taken place recently in India not enough to caution us about the state of political morality? The judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril.

The writer is former chief justice,

Kerala High Court

‘If the judiciary is either equal or in a minority, I fear this Bill will be (legally) vulnerable’

PUBLISHED IN THE INDIAN EXPRESS

In this Idea Exchange moderated by Senior Editor (Legal Affairs) Maneesh Chhibber, Law Commission of India Chairman Justice A P Shah says most judges don’t believe the collegium system works and argues for a fixed tenure for CJI. This Idea Exchange took place before Parliament approved the new Bill for selection of judges

Maneesh Chhibber: Law Commission Chairperson Justice A P Shah submitted a report to the government on the collegium system. Incidentally, he is also one of the prominent victims of the collegium system.

Justice A P Shah: I read Fali Nariman’s article in The Indian Express. It seems he has suggested that the collegium system should be revamped. In my opinion, the collegium system is not a democratic institution; there are no checks and balances in it. If you let the same system continue without any meaningful voice to the executing civil society, even if you make it a little more transparent and a criterion is laid out, it may not improve the system itself.

I have been working on it for the past several days along with some of my colleagues and some people from outside. The government has not asked us to make a report, it is our initiative. At the Law Commission, we thought it’s a very important policy decision — whether you are going to have a judicial appointments commission to replace the present collegium system. It’s the Law Commission’s responsibility to make recommendations in that direction, but it’s not very clear whether it should go as a report or a consultation paper…

You will recall that there was a UPA Bill to bring the retirement age of high court judges on a par with that of the Supreme Court judges. The BJP opposed the Bill, and it is still pending. The only reason given in the Constituent Assembly debates was that high court judges may not opt for the Supreme Court if the retirement age is the same, because that is a kind of temptation to go to the Supreme Court, there is an additional three-year tenure, which I don’t think works today. There are two distinct advantages if it is brought on a par. First, the practice of lobbying and sycophancy, developed in recent times, will stop. Also, there will not be much heartburn because a person continues as an HC judge till 65. The second advantage is that you will be able to select judges at a young age. There is no rule but an unwritten convention that a person below the age of 45 will not be appointed in the HC, and a person below 55 will not be appointed in the SC. Look at the consequences: We are not getting good talent in the HC because once they cross 45, they would be more entrenched in practice. This seniority should really go.

Today, the Supreme Court is packed with (former high court) chief justices who are also the senior-most; there is no search for good talent. Once it is on a par, perhaps you would be able to select judges at a young age and they will continue on the bench for a longer period of time. In almost all countries, judges at the apex court have a long tenure — 10 years is the minimum, it should be 10-15 years. According to me, this (age bar) is rather arbitrary and in the committee meeting, everybody was almost unanimous that seniority should not be the criterion, you need to bring in young people.

And the last point is the fixed tenure of the chief justice. We are working on that. Till 2022, no chief justice will get a tenure of more than a year; the present Chief Justice gets only four-five months. My logic is that it should be five years, because the prime minister gets a five-year tenure, Parliament gets five years, so the chief justice should also get five years. But it may be less — three or two years.

The way the Supreme Court works is very different from what was contemplated by the law framers. One of the reasons there is no embargo against judges taking up post-retirement assignments in the government was because in the Constituent Assembly Dr B R Ambedkar had said that the government has only 5 per cent litigation, and since the government is not a major litigant, why prevent retired judges from accepting post-retirement assignments? That logic is no longer relevant because 60 per cent of the litigations are by the government. So, there may not be a complete bar, but a cooling-off period is very necessary. It could be one or  two years, but there should be a cooling-off period.

Maneesh Chhibber: Don’t you think that the government or politicians are trying to use this clamour against the judiciary as an excuse to undo the collegium system brought in by the Supreme Court?

The UPA Bill (which was not passed) said that the Judicial Appointments Commission should have three judges and three non-judges, but there was an attempt to have an amendment, to have a seventh member. And the seventh member, as per the amendment, was to be a non-judge. So virtually, judges will be in a minority. One suggestion was that there should be two non-judges and an eminent person should be given a veto. If both of them decide to oppose the appointment, then it should not be made. There is a fear (that this is a move to undo the collegium system), and I can’t say no to that.

Arun sukumar: Would the situation be any different if the collegium decisions were to be made public under RTI?

Under RTI, the questions that come up relate to justification for making an appointment or if somebody is being overlooked, or why a particular candidate was chosen for the high court. But the reasons are not given. So how is RTI going to help? RTI’s objective is to bring transparency, but RTI itself is not sufficient. Transparency would come only if you make it known that there are vacancies, you get nominations from the stakeholders concerned, have mandatory consultations with the high courts, state governments and maybe the Bar, and then declare the names before they are finalised, so that people know. I’m not in favour of interviews in public or any such American system, but we must bring in some sort of transparency, and that can’t be achieved by an RTI application.

Maneesh Chhibber: At the meeting which the government called to discuss the Judicial Appointments Commission, one of the biggest concerns was that whatever was brought in, the JAC should meet the standard set by the judiciary. What do you think is that standard?

Upendra Baxi suggested that you prepare a Bill and make a presidential reference to the Supreme Court. Let the Supreme Court examine it, the way it has done in the past. This was a good idea according to me, but it was felt, and may be justifiably, that it takes time. The other was what Nariman suggested. I really liked the idea — have a dialogue, let the judiciary participate in that dialogue. That’s a great idea — let them at least listen to voices of people or other stakeholders. My fear is that if the judiciary is either equal or in a minority, this Bill will become (legally) vulnerable.

Dilip Bobb: You have been consulting colleagues in the judiciary. What is their reaction to your suggestions, including the cooling-off period?

The problem is that most judges — till they are in the collegium — defend the collegium system because it is very difficult for a serving judge (to criticise it). Nobody honestly believes that this system works well. Many retired judges, barring the exception of former chief justice (Altamas) Kabir and a few others, believe that this system has not worked.

About cooling-off period, what is bad about post-retirement assignments is that for one post, there are 10 aspirants. This leads to unfortunate developments.

Seema Chishti: You were talking of an eminent person being selected. Isn’t that problematic?

The problem is manifold. First, the Constitution uses the words ‘distinguished jurist’. Not a single person was appointed in the past 60 years in that category. During the debates in the Constituent Assembly, they gave the example of Felix Frankfurter. He was a great professor and was taken from a university to the American Supreme Court; he was not a practising lawyer. What they really had in mind was an academic. If I look at the Indian scenario, Prof N R Madhava Menon or Prof Upendra Baxi would have been brought to the Supreme Court in that category. But that jurist can be anyone. Nariman has contributed greatly in the legal frame, he has written several books, perhaps in that sense he would know.

The absence of a non-legal person would give a sense of incompleteness; it should not be a closed-door affair for the legal community, there should be an eminent person, for instance, our past president A P J Abdul Kalam. There are many such eminent persons, who can be picked by the PM, Leader of Opposition and the Chief Justice of India.

Vandita Mishra: The debate is also about the executive versus the judiciary, which is an age-old tussle. Do you see the present as a special moment where there is a confrontation developing between the executive and the judiciary? Is the judiciary more on the backfoot and the executive more aggressive than in the past?

The real issue is, who will have the last word, who will be the custodian of the Constitution. The Supreme Court has said that the court will have the last word in any amendment. But then coming to narrower issues of appointments, who will have the last word? Judges say that judiciary will have the last word.

Vandita Mishra: The executive is more aggressive because of its majority. What about the judiciary, what is the special moment that the judiciary finds itself in today?

Very broadly, the judiciary is entering into several areas where it should not be. There is a tremendous expanse of the judiciary’s powers and then with the PILs, it is armed with so many weapons. It is becoming very powerful. With that, the scrutiny is becoming extremely focused by the media and several other bodies. One significant development was the decision of the collegium on Karnataka judges.

Rakesh Sinha: As the law minister in A B Vajpayee’s government, Arun Jaitley had moved an amendment for scrapping the collegium.

You are right. There were seven-eight proposals after 1993. And they gave different combinations. In some proposals, even the legislature was included, apart from the executive. In some proposals, it was completely judge-dominant. We are looking into all the proposals.

Maneesh Chhibber: At the meeting called by the government, one got the feeling that the general consensus was that the government should come up with a proposal, have at least one more round of talks with the stakeholders. But it appears the Cabinet is going to clear the Bill.

I distinctly remember Anil Diwan saying that, ‘Instead of holding such meetings, why don’t you draft a Bill and then come to us?’. That is a good idea.

Seema Chishti: Regarding the recent instance of the Delhi Assembly case being heard by the Constitution bench, should the court get into this at all? In an earlier instance, the court had said that the Jharkhand Assembly should have a session at 11.30 am.

I don’t want to make any comment on that. The argument being made is that it is clear the Delhi government is not going to be constituted (any time soon). But the Constitution gives power to the executive that the suspension can continue up to one year. To what extent is judicial review  permissible is a debatable issue.

P Vaidyanathan Iyer: We had Iqbal Chagla as our guest in Mumbai and he said that in the ’60s and ’70s, the Bar used to be very strong. At times it took up issues of corruption and stalled appointments. Do you think that today, there is nothing that the Bar stands up for?

A recent example is P D Dinakaran’s case — the Bar took up that case. I have seen lawyers acting as some sort of vigilance on wrong appointments. But their number is on the decline. The Bar should be more alert.

Vandita Mishra: What is your view on the mechanism of fast-track courts (for legislators)?

Let me tell you about the Law Commission’s report. The Commission felt that several previous committees disqualified a person if he was facing a serious criminal charge, punishable with five or more years in jail. The debate is, how can you expel a person when he is merely facing a charge; there is no determination. And there is misuse of this provision. Criminalisation of politics is a very serious issue. So if you believe that lawbreakers should not be lawmakers, then we need to have a system where we keep such people out. We went by the reasoning of the Supreme Court judgment in the CVC case that it is protecting institutional integrity.

There is a difference between filing a chargesheet and framing of a charge. We suggested three safeguards.
First, the charge should be framed at least one year prior to the elections. Second, such disqualification should not continue beyond six years. If within six years a person’s case is not decided, he or she should be allowed (to continue). Then we realised what happens if the charge is framed within one year and the person gets elected. Or what happens if the charge is framed after he is elected. In that context, we decided that the case should be decided within one year.

Vandita Mishra: So legislators should be singled out for fast-track, time-bound trial.

It should be done. That’s a deterrent.

Vandita Mishra: But some people would say that rapists should be singled out, not legislators.
In the case of rapists, it is already happening.

Aneesha Mathur: In your recent report you have mentioned fast-tracking, but you have also said that there may be a trade-off between the quality and quantity of judgments.
Most judges write bad judgments. It should be properly administered justice and in the name of fast-tracking you should not be affecting the quality.

Rakesh Sinha: A lower court judge in Madhya Pradesh recently wrote to the Chief Justice of India saying a high court judge was exploiting her and that she was forced to resign.

It is a very serious complaint and if it is found true prima facie on inquiry, then the logical step would be to withdraw the judicial person, and initiate impeachment proceedings.

Transcribed by Vandana Kalra & Debesh Banerjee

A case for two commissions

BY T R ANDHYARUJINA PUBLISHED IN THE INDIAN EXPRESS

There is now a consensus amongst judges, lawyers and legislators that the present system of appointment of judges to superior courts by a collegium of Supreme Court judges requires to be changed for a better one. There are sound reasons for this move.

First, the appointment of judges by the Supreme Court collegium has no foundation in our Constitution. Article 124 of the Constitution provides that every judge of the Supreme Court is to be appointed by the president after consultation with the chief justice of the Supreme Court and other judges of the Supreme Court and high courts. Similar power is given by Article 217 to the president in consultation with the chief justice of India (CJI), the governor of the state and chief justice of the high court for the appointment of judges to high courts.

In 1981, in what is known as the first judges’ case, the Supreme Court held that the power of appointment of judges of the superior courts resided solely and exclusively in the president, that is, the Central government, subject to full and effective consultation with the constitutional functionaries referred to in Articles 124 and 217. However, in 1992, the Supreme Court, in the second judges’ case, professing to safeguard the independence of the judiciary, reversed the first verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a judge of the Supreme Court was with the CJI, who would make his recommendation to the president after consultation with two of his senior judges. The president would only have the limited power of expressing his doubts on the recommendation of the CJI. The president’s doubts would not however prevail if the CJI reiterated his recommendation on the appointment of the judge. In a later judgment, known as the third judges’ case, the Supreme Court diluted the primacy of the CJI, and gave the power of appointment to a collegium of the CJI and four of his senior-most colleagues.

The judgments in the second and third judges’ cases are an extraordinary tour de force in the name of securing the independence of the judiciary. The court has rewritten the provisions of the Constitution for the appointment of judges. The executive’s function in the appointment process has for all practical purposes been eliminated and reduced to the formal approving of a recommendation made by the CJI and his collegium. “Consultation” with the CJI in the Constitution has been transmuted into an original power to appoint by the CJI and a collegium. The Constituent Assembly’s view at the time of enacting the constitutional provisions, that the CJI should not be the final appointing authority, was disregarded by the court. In no jurisdiction in the world do judges appoint judges.

Even if the collegium’s method for the appointment of judges has no foundation in the Constitution, it could have been excused had the system worked satisfactorily, but unfortunately, for over 20 years, it has not. In the first instance, the collegium system lacks transparency and is secretive. The public is not aware of the selection of a judge until his name is forwarded to the government by the collegium. Second, there have been instances of judges being selected or not selected due to favouritism or prejudice of members of the collegium. Third, selection on competitive merit of the appointees is discarded and judges are generally appointed to the Supreme Court on their seniority in ranking in the high courts. The late Justice J.S. Verma, principal author of the second judges’ judgment, later admitted that the collegium system had failed.

Should the earlier system of the exective appointing judges after proper consultation be restored? Paradoxically, from 1950 to 1973, some of the most outstanding judges of our Supreme Court were appointed through this system. Eminent judges like Michael Kirby of the Australian High Court are strongly in favour of restoring the old system, with control over it by Parliament. It was only during the period of the Emergency that this system was subverted, which led to the judiciary appropriating the power in the second judges’ case. Even today, in Australia and Canada, it is the executive that appoints judges after proper consultation.

To introduce a Judicial Appointments Commission (JAC) in India is a fundamental change in the Constitution. Such a change requires careful consideration and evaluation of the system. It is important to know that, except for the judicial appointment commission of the UK introduced by the Constitutional Reform Act, 2005, such commissions have not been successful elsewhere. The South African constitution provides for a judicial appointment commission, but its working is far from satisfactory and at times appointments have been influenced by the government. The same is true of judicial appointment commissions in other states in Africa.

If the JAC is to be introduced in India, its composition should be made part of the Constitution itself and not left to ordinary legislation by Parliament. There should be proper representation of members, including of the legal profession, in the JAC. The JAC will be over-stressed and overworked if it has to make appointments for 31 judges to the Supreme Court and over 800 judges to the 24 high courts. The CJI and two senior-most judges, who are to be part of the commission, would have to work in the commission to the neglect of their primary judicial duties of hearing and deciding cases. There ought to be two separate judicial commissions, therefore, one for the Supreme Court and the other for the high courts. The JAC for high courts ought to

be composed of retired judges of the Supreme Court or high courts, in addition to other members. In the UK, there are separate selecting bodies for high court and for supreme court. The overriding factor will be the merit of the candidate, but the commission, as in the UK, should consider diversity, namely, appointment of women judges and judges of various regions without of course sacrificing merit.

Overall, the creation of a JAC requires careful consideration and extensive consultation with all sections of the public, including the CJI. The present law minister, Ravi Shankar Prasad, rightly convened a meeting on July 28 of judges and lawyers and jurists to discuss the changes to be made. It is to be hoped that such consultations will be continued before a legislation is introduced. The collegium system has not worked, but we should not have a situation where we jump from the frying pan of the collegium to the burning fire of a chaotic National Judicial Commission.

The writer is a senior advocate of the Supreme Court and former Solicitor General of India

First, insulate the judge from politics

BY RAMJETHMALANI PUBLISHED IN THE INDIAN EXPRESS

The thesis of ‘committed’ judiciary has been abandoned, but its practice continues unabated. That is the real problem, writes RAM JETHMALANI.

A judge is the guardian of the small man and his bundle of rights, which enable him to realise his fullest material, moral and spiritual potential, and expand to the utmost frontiers of his body, mind and soul. No judge must aspire to harmony with the legislature and executive. Every judge must brace himself for a life of tension with both in the intelligent and stout defence of his ward, who needs constant protection against the insolence of unfeeling officials, the venality of politicians and the misdeeds of wicked neighbours and fellow citizens. Every court is essentially a court of wards; the Supreme Court has the entire citizenry as its ward. Our judges need not be sensitive to the oft-mounted attack that they are not elected and are, therefore, unaccountable and undemocratic.

This role of the judge makes one think about elected judges. But the system of elected judges has been tried elsewhere and I believe that it has produced jokes. The most instructive joke that you will find is that in a certain US state, the Democratic Party found a judge paralysed from the waist downwards and invariably, in elections, he won the sympathy vote. He triumphed in four successive elections but before the fifth, a Republican Party official said to his superior, “Sir, we have found a solution to our problem.” He asked, “What is it?” The answer: “Sir, this time we have found a judge who is paralysed from the waist upwards.” It will not work in India anyway.

Economics may have dominated the world most of the time and probably does dominate in some sense even now. But today, politics has overtaken economics in its influence. In the past few decades, all institutions, including the judiciary and of course the Bar, have struggled with the temptations of politics. Judges, like other mortals, are attracted to politics, particularly aspiring ones who consider favours from a ruling party to be stepping stones for upward mobility in the field. Usually, but not always, judges do often violate their oath of administering justice without fear or favour. Favours done have to be returned, feel some. We have therefore to evolve an effective mechanism of insulating judges against politics and involvement in political machinations of the kind that have disgraced some sections in the past not only in this country, but also elsewhere.
Politicians as a class and the executive in power must therefore have no voice in the appointment of judges. The executive is the biggest litigant in cases of citizen complaints of the oft-corrupt misuse of executive powers. Even a good judge appointed by a corrupt minister will not command public confidence. The second judges case, the origin of the present collegium system, was a correct decision, and the current system is vastly superior to the one it supplemented. It was the one that produced the tellingly sarcastic comment, “It has created two kinds of judges — those who know the law and those who know the law minister.”

South Africa, in its new constitution, adopted the model of a judicial commission as the method of selection, which has been operational since 1996. The law minister is formally consulted and he makes his comments upon the appointees or recommendees of the judiciary. The comments of the law minister are considered with respect and attention, but the final word lies with the commission. I am committed to this mechanism as our final solution. I must hasten to explain why.

I agree with the weighty opinion of my erudite friend, senior counsel Anil Divan, in his recent article in The Hindu: “The present secretive process followed by the collegium excludes public scrutiny, violates the citizen’s right to know and leads to diminishing respect for the judiciary.” Some bad appointments produced by this system are also notorious.
While corruption continues to grow like a galloping cancer in every branch of life, the judges seem to reciprocate by producing a strange jurisprudence that only protects the corrupt. The law of contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the common man, not so inhibited, produces an impressive volume of popular corruption folklore.

The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished lawyer and politician, claimed that judicial appointments could not be made without reference to the social philosophy of the judges. The judge, being an important decision-maker, makes decisions that are bound to affect the lives of the people, and his decisions are influenced by his social philosophy. Therefore, independent India should have judges who are “committed” not only to the social philosophy of the Constitution, but also to that of the government. This was controversial. However, Indira Gandhi’s government implemented his views during the Emergency.

Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated. While judges associated with the ruling establishment are invariably appointed, those having any form of association with opposition parties are scrupulously avoided. How successive chief justices, who are supposed to be totally judicial even in the discharge of their administrative function, habitually enter into convenient compromises escapes comprehension. The inevitable answer is the creation of a national judicial commission in which the judiciary, government, opposition, the Bar and academic community have an equal voice. Judges should hold office only during the pleasure of the commission. It should have the power to appoint, transfer and dismiss — of course, in accordance with procedure established by law, or what is also known as due process. The Lokpal may well be a useful addition to the list of participants.

The 79th report of the Law Commission suggested ways to plug loopholes in the existing system of appointment of Supreme Court judges. No one should be appointed a judge of the Supreme Court unless, for a period of not less than seven years, he has snapped all affiliations with political parties and unless, during the preceding seven years, he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice.

The practising Bar is the constituency of a judge. If he cannot retain its confidence, he must gracefully quit office. It is just not true that only weak and obliging judges are popular with the Bar. Members of the Bar know the black sheep on the bench. No wonder, the American Bar Association can, by its adverse criticism, make the mighty president of the US withdraw his nominees for judicial office. A lord chancellor of England admitted that if he made an unworthy appointment, he could not possibly look into the eyes of the lawyers at Bar dinners.

The writer, a lawyer and Rajya Sabha MP from Rajasthan, is a former Union law minister (June 1999-July 2000)

Change must respect basic structure

BY UPENDRA BAXI PUBLISHED IN THE  INDIAN EXPRESS

The relationship between “democracy” and “secrecy” has always been debated, and it has been highlighted by the system of judicial appointments. The proposed judicial appointments commission (JAC) seeks to partly answer that question. Under review is the judicial collegium method of appointments, in use since the 1990s (which consists today in the supremacy of five senior-most justices of the Supreme Court, including the chief justice of India), as against the constitutional method in place between the 1950s and the 1990s (where the executive nominated candidates in consultation with the CJI and such other justices as it deemed fit).

Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.

In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change?

Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice Markandey Katju’s recent expose suggests that the CJI is vulnerable to alleged manoeuvring by the prime minister’s office. The justices in the judges cases seemed to think so, given that they accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of five justices.

To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments and transfers, and contemplated a slew of measures on judicial standards, accountability, non-impeachment offences and transparency of the judicial process. The new government is espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister to say that he had justices in his pockets; this is no longer the signature tune of modern governance. Rather, the state now wants a JAC that would avoid the vices of politicians appointing judges, and of the justices appointing their own.

This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till 2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of the Supreme Court members, provided a

process to identify two eminent citizens, and finally culminated in the 120th constitutional amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred, the Law Commission’s report and other reports make compulsory, if dull, reading on this vexed subject.

In a consultation with eminent jurists convened by the Union law minister on July 28, while most went to the extent of saying that the judicial collegium had failed and agreed that the system of appointments needed to be changed, all the “jurists” endorsed the “dominance” of the CJI and his senior companions. If the advice of the CJI and his companion justices is to have an “edge” or “dominance”, how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?

A greater fundamental difficulty is posed by the basic structure doctrine. I have previously argued in these pages (‘Just governance’, IE, June 10) and at a New Delhi consultation that the best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill, considering whether abolition of the judicial collegium offends the basic structure and if it does, how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it clear that the matter can only be settled in a judicial opinion; since the judges cases were decided judicially, no question arises of a mere administrative order by the court.

The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court.

The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has “failed” the nation. Since almost all the leaders of the Bar believe that the judicial collegium has “failed” in drawing the best and brightest to become justices, they should have little difficulty in persuading the court.

The argument against an advisory opinion is that it would take undue time. But the 2G reference was relatively expeditiously disposed; the non-collegium justices would be justified in accelerating the opinion. In any event, the time taken for the reference will be democratically well-invested. The alternative of an adversarial proceeding, where the court may continue via a stay order to make appointments and transfers, scarcely advances the cause. Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

JUSTICE KATJU – MEDIA DEBATE : Justice Markandey Katju on the role of media in India

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

PUBLISHED IN THE HINDU

Justice Markandey Katju, Chairman, Press Council of India, argues that the media has a very important role to play in helping the country make the transition from an old feudal society to a modern industrial one quickly, and without much pain.

The Role the Media should be playing in India

by Justice Markandey Katju, (former Judge, Supreme Court of India), Chairman, Press Council of India

To understand the role which the media should be playing in India we have to first understand the historical context. India is presently passing through a transitional period in its history, transition from feudal agricultural society to modern industrial society.

This is a very painful and agonizing period in history. The old feudal society is being uprooted and torn apart, but the new, modern, industrial society has not yet been entirely established. Old values are crumbling, everything is in turmoil. We may recollect the line in Shakespeare’s play Macbeth: “Fair is foul and foul is fair”. What was regarded good earlier e.g. the caste system is regarded bad today (at least by the enlightened section of society), and what was regarded bad earlier, e.g. love marriage, is acceptable today (at least to the modern minded persons). One is reminded of Firaq Gorakhpuri’s Urdu couplet:

“Har zarre par ek qaifiyat-e-neemshabi hai  – Ai saaqi-e- dauraan yeh gunahon ki ghadi hai”

In a marvel of condensation this sher (couplet) reflects the transitional age. Zarra means particle, qaifiyat means condition, e means of, neem means half, and shab means night. So the first line in the couplet literally means

“Every particle is in a condition of half night”.

Urdu poetry is often to be understood figuratively, not literally. So this line really means that (in the transitional age) everything is in flux, neither night nor day, neither the old order nor the new. Also, in the middle of the night if we get up we are dazed, in a state of mental confusion, and so are people in a transitional age. In the second line, saaqi is the girl who fills the wine cup, but she is also the person to whom one can confide the innermost thoughts in one’s mind. The poet is imagining a girl, to whom he is describing the features of the transitional era. ‘Yeh gunahon ki ghadi hai’, i.e. it is the time of sin. In this transitional age it is a ‘gunahon ki ghadi’ from both points of view. From the point of view of people of the old, feudal order it is a sin to marry according to your choice, and particularly outside one’s caste or religion, it is a sin to give education to women, it is a sin to treat everyone as equal. At the same time, from the point of view of modern minded people the caste system is a sin, denying education to girls is a sin, and love marriage is quite acceptable. Thus old and new ideas are battling with each other in the transitional age.

It is the duty of all patriotic people, including the media, to help our society get over this transition period quickly and with less pain. The media has a very important role to play in this transition period, as it deals with ideas, not commodities. So by its very nature the media cannot be like an ordinary business.

If we study the history of Europe when it was passing through its transition period, i.e. from the 16th to the 19th Centuries, we find that this was a terrible period in Europe, full of turbulence, turmoil, revolutions, wars, chaos, social churning and intellectual ferment. It was only after passing through this fire that modern society emerged in Europe. India is presently going through this fire. We are passing through a very painful period in our history. Historically, the print media emerged in Europe as an organ of the people against feudal oppression. At that time the established organs were all in the hands of the feudal despotic authorities (the king, aristocrats, etc). Hence the people had to create new organs which could represent them. That is why the print media became known as the fourth estate. In Europe and America it represented the voice of the future, as contrasted to the established feudal organs which wanted to preserve the status quo. The media thus played an important role in transforming feudal Europe to modern Europe.

In the Age of Enlightenment in Europe the print media represented the voice of reason. Voltaire attacked religious bigotry and superstitions, and Rousseau attacked feudal despotism. Diderot said that “Man will be free when the last king is strangled with the entrails of the last priest”. Thomas Paine proclaimed the Rights of Man, and Junius (whose real name we still do not know) attacked the despotic George III and his ministers (see Will Durant’s ‘The Story of Civilization: Rousseau and Revolution’). Louis XVI, while in the Temple prison saw books by Voltaire and Rousseau in the prison library and said that these two persons have destroyed France. In fact what they had destroyed was not France but the feudal order. In the 19th Century the famous writer Emile Zola in his article ‘J’ Accuse’ accused the French Government of falsely imprisoning Captain Dreyfus in Devil’s Island only because he was a Jew.

In my opinion the Indian media should be playing a role similar to the progressive role played by the media in Europe during the transitional period in Europe. In other words, the Indian media should help our country get over the transition period and became a modern industrial state. This it can do by attacking backward, feudal ideas and practices e.g. casteism, communalism and superstitions, and promoting modern scientific and rational ideas. But is it doing so?

In my opinion a large section of the Indian media (particularly the electronic media) does not serve the interest of the people, in fact some of it is positively anti-people.

There are three major defects in the Indian media which I would like to highlight.

1. The media often diverts the attention of the people from the real issues to non issues. The real issues in India are socio-economic, the terrible poverty in which 80% of our people are living, the massive unemployment, the price rise, lack of medical care, education, and backward social practices like honour killing and caste oppression and religious fundamentalism etc. Instead of devoting most of its coverage to these issues the media focuses on non issues like film stars and their lives, fashion parades, pop music, disco dancing, astrology, cricket, reality shows, etc. There can be no objection to the media providing entertainment to the people, provided this is not overdone. But if 90% of its coverage is related to entertainment, and only 10% to the real issues facing the nation (mentioned above) then there is something seriously wrong with the media. The whole question is of proportion. In the Indian media the sense of proportion has gone crazy. Entertainment got 9 times the coverage that health, education , labour, agriculture and environment together got. Does a hungry or unemployed man want entertainment or food and a job? To give an example, I switched on the T.V. yesterday and what did I see? Lady Gaga has come to India, Kareena Kapoor standing next to her statue in Madame Tussand’s, tourism award being given to a business house, Formula one car race etc. etc. What has all this to do with the problems of the people?

Many channels show cricket day in and day out. Cricket is really the opium of the Indian masses. The Roman Emperors used to say “If you cannot give the people bread give them circuses”. This is precisely the approach of the Indian establishment, duly supported by our media. Keep the people involved in cricket so that they forget their social and economic plight. What is important is not poverty or unemployment or price rise or farmers suicides or lack of housing or healthcare or education, what is important is whether India has beaten New Zealand (or better still Pakistan) in a cricket match, or whether Tendulkar or Yuvraj Singh have scored a century. The Indian media so much hyped up the cricket match at Mohali between India and Pakistan that it became a veritable Mahabharat War!

Enormous space is given by our media to business, and very little to social sectors like health and education. Most media correspondents attend the film stars, fashion parades, pop music, etc. and very few attend to the lives and problems of workers, farmers, students, sex workers, etc. Recently ‘The Hindu’ published that a quarter million farmers committed suicide in the last fifteen years. A Lakme Fashion week was covered by 512 accredited journalists. In that fashion week women were displaying cotton garments, while the men and women who grew that cotton were killing themselves an hour’s flight from Nagpur in the Vidarbha region. Nobody told that story except one or two journalists locally. The media coverage of the education field concentrates (if at all) on the elite colleges like the I.I.Ts, but there is very little coverage of the plight of the tens of thousands of primary schools, particularly in rural areas where education begins.

In Europe the displaced peasants got jobs in the factories which were coming up because of the Industrial Revolution. In India, an the other hand industrial jobs are now hard to come by. Many mills have closed down and have become real estate. The job trend in manufacturing has seen a sharp decline over the last 15 years. For instance, TISCO employed 85,000 workers in 1991 in its steel plant which then manufactured 1 million tons of steel. In 2005 it manufactured 5 million tons of steel but with only 44,000 workers. In mid 90s Bajaj was producing 1 million two wheelers with 24,000 workers. By 2004 it was producing 2.4 million units with 10,500 workers.

Where then do these millions of displaced peasants go? They go to cities where they became domestic servants, street hawkers, or even criminals. It is estimated that there are 1 to 2 lac adolescent girls from Jharkhand working as maids in Delhi. Prostitution is rampant in all cities, due to abject poverty. In the field of health care, it may be pointed out that the number of quacks in every city in India is several times the number of regular doctors. This is because the poor people cannot afford going to a regular doctor. In rural areas the condition is worse. The government doctors posted to primary health centres usually come for a day or two each month, and run their private nursing homes in the cities the rest of the time.

In ‘Shining’ India, the child malnutrition figures are the worst in the world. According to U.N. data, the percentage of under weight children below the age of 5 years in the poorest countries in the world is 25 per cent in Guinea Bissau, 27 per cent in Sierra Leone, 38 per cent in Ethiopia, and 47 per cent in India. The average family in India is consuming 100 kilograms of food grains less than it did 10 years ago (see P. Sainath’s article ‘Slumdogs and Millionaires’). All this is largely ignored by our media which turns a Nelson’s eye to the harsh economic realities facing upto 80 per cent of our people, and instead concentrates on some Potempkin villages where all is glamour and show biz. Our media is largely like Queen Marie Autoinette, who when told that the people have no bread, said that they could eat cake.

2. The media often divides the people:

Whenever a bomb blast takes place anywhere in India (whether in Bombay or Bangalore or Delhi or anywhere) within a few hours most T.V. channels starts showing that an e-mail or SMS has been received from Indian Mujahideen or Jaish-e-Muhammad or Harkat-ul-Jihad-e-Islam claiming responsibility. The name will always be a Muslim name. Now an e-mail or SMS can be sent by any mischievous person who wants communal hatred. Why should they be shown on T.V. screens, and next day in print (the T.V. news at night often sets the agenda for the print media news next morning)? The subtle message being sent by showing this is that all Muslims are terrorists or bomb throwers. In this way the entire Muslim community in India is demonized, when the truth is that 99 per cent people of all communities are good, whether they are Hindus or Muslims or Sikhs or Christians, and of whatever caste, region or language.

India is broadly a country of immigrants. About 92 to 93 per cent people living in India today are descendants of immigrants, and not the original inhabitants (who are the pre-Dravidian tribals or adivasis, comprising of only 7 to 8 per cent of our population). Because we are broadly a country of immigrants there is tremendous diversity in India – so many religions, castes, languages, ethnic groups, etc. Hence it is absolutely essential if we wish to keep united and prosper that there must be tolerance and equal respect to all communities living in India. Those who sow seeds of discord among our people, whether on religious or caste or lingual or regional lines, are really enemies of our people.

The senders of such e-mails and SMS messages are therefore enemies of India, who wish to sow the seeds of discord among us on religious lines. Why should the media, wittingly or unwittingly, become abettors of this national crime?

3. The media promotes superstitions

As I have already mentioned, in this transitional age, the media should help our people to move forward into the modern, scientific age. For this purpose the media should propagate rational and scientific ideas, but instead of doing so a large section of our media propagates superstitions of various kinds. It is true that the intellectual level of the vast majority of Indians is very low, they are steeped in casteism, communalism, and superstitions. The question, however, is whether the media should try to lift up the intellectual level of our people by propagating rational and scientific ideas, or whether it should go down to that low level and seek to perpetuate it?

In Europe during the Age of Enlightenment the media (which was only the print medium at that time) sought to uplift the mental level of the people and change their mindset by propagating ideas of liberty, equality and fraternity and rational thinking. Voltaire attacked superstitions, and Dickens criticized the horrible conditions in jails, schools, orphanages, courts, etc. Should not our media be doing the same?

At one time courageous people like Raja Ram Mohan Roy wrote against sati, child marriage, purdah system etc. (in his newspaper ‘Miratul Akhbar’ and ‘Sambad Kaumudi’). Nikhil Chakraborty wrote about the horrors of the Bengal Famine of 1943. Munshi Premchand an d Sharat Chandra Chattopadhyaya wrote against feudal practices and women’s oppression. Manto wrote about the horrors of Partition.

But what do we see in the media today?

Many T.V. channels show astrology. Astrology is not to be confused with astronomy. While astronomy is a science, astrology is pure superstition and humbug. Even a little common sense can tell us that there is no rational connection between the movements of the stars and planets, and whether a person will die at the age of 50 years or 80 years, or whether he will be a doctor or engineer or lawyer. No doubt most people in our country believe in astrology, but that is because their mental level is very low. The media should try to bring up that level, rather than to descend to it and perpetuate it.

Many channels mention and show the place where a Hindu god was born, where he lived, etc. Is this is not spreading superstitions.

I am not saying that there are no good journalists at all in the media. There are many excellent journalists. P. Sainath is one of them, whose name should be written in letters of gold in the history of Indian journalism. Had it not been for his highlighting of the farmers suicides in certain states the story (which was suppressed for several years) may never have been told. But such good journalists are the exceptions. The majority consists of people who do not seem to have the desire to serve the public interest.

To remedy this defect in the media I have done two things (1) I propose to have regular meetings with the media (including electronic media) every two months or so. These will not be regular meetings of the entire Press Council, but informal get-togethers where we will discuss issues relating to the media and try to resolve them in the democratic way, that is, by discussion, consultation and dialogue. I believe 90% problems can be resolved in this way (2) In extreme cases, where a section of the media proves incorrigible despite trying the democratic method mentioned above, harsher measures may be required. In this connection I have written to the Prime Minister requesting him to amend the Press Council Act by bringing the electronic media also under the purview of the Press Council (which may be renamed the Media Council) and by giving it more teeth e.g. power to suspend government advertisements, or in extreme cases even the licence of the media houses for some time. As Goswami Tulsidas said ‘Bin bhaya hot na preet’. This, however, will be resorted to only in extreme cases and after the democratic method has failed. It may be objected that this is interfering with the freedom of the media. There is no freedom which is absolute. All freedoms are subject to reasonable restrictions, and are also coupled with responsibilities. In a democracy everyone is accountable to the people, and so is the media.

To sum up: The Indian media must now introspect and develop a sense of responsibility and maturity.That does not mean that it cannot be reformed. My belief is that 80 per cent people who are doing wrong things can be made good people by patient persuasion, pointing out their errors, and gently leading them to the honourable path which the print media in Europe in the Age of Enlightenment was following.

Related articles

• Media and issues of responsibility (indialawyers.wordpress.com)
• Freedom of the press and journalistic ethics (indialawyers.wordpress.com)
• Freedom of press and journalistic ethics – II (indialawyers.wordpress.com)

With all due respect

SHEKHAR GUPTA IN THE INDIAN EXPRESS

Four recent developments deserve close attention. These could add up to a very disturbing picture: of our higher judiciary being under siege, or on the defensive, or becoming a victim to a wider conspiracy it can’t read, or falling to a weakness it does not accept. But any which way you see it, the picture that emerges is worrying.

Here are the four instances I pick. They are entirely unconnected but, when seen together, should make not just our highest judiciary and jurists but also all the rest of us, who value our democracy and total judicial freedom and respect a system of democratic checks and balances, sit up in some alarm.

* Just last week, at a short and dignified function in a central Delhi auditorium, Union Law Minister Veerappa Moily’s book on the Ramayana was released. No problem with that. It was released by Justice S.H. Kapadia, who recently took over as the 38th Chief Justice of India. No problem with that also, or maybe. In his very short speech, Justice Kapadia complimented the law minister not just for his scholarship, but also for the fact that this minister takes all his decisions based on “honesty and integrity”. Of course, he went on to clarify that he did not mean that other ministers did not do so. It is just that he knew more about this one. Any problem with that? None, maybe, for now. Except that such public praise can come back to haunt you given the history of healthy, and sometimes not quite healthy, tension between the two institutions, judiciary and executive.

Another week prior to that, Moily himself had launched a remarkably sharp attack on one of Kapadia’s predecessors, Justice Ahmadi, accusing him of diluting the case against Union Carbide and thereby letting Warren Anderson get away. To some of us, it seemed odd that a serving law minister should be attacking a former CJI in public on a judgment delivered by him as the head of a Supreme Court bench. Even more so when the Bhopal case had been deliberated upon by two benches that included, among their distinguished members, four judges who eventually served as Chief Justices of India — Ranganath Misra, M.N. Venkatachaliah, K.N. Singh and A.H. Ahmadi. Moily was sharply criticised by this newspaper editorially for what some of us saw as an attack on the highest judiciary in an Emergency-like tone (even though Moily is essentially a democrat, not the H.R. Gokhale of the Emergency). But of course no one in the large community of eminent jurists rose to Ahmadi’s or the Supreme Court’s defence. In fact, since then, it has become common for NGOs and the media to unhesitatingly describe Bhopal as an outcome of “collusion between politicians, bureaucracy and the judiciary”. In an unconnected, but very relevant development earlier, the government, in response to an RTI application, had stated that Justice Y.K. Sabharwal could not be appointed as National Human Rights Commission chairman (who has to be a former CJI) because of adverse media reports against him, even if that meant keeping it vacant for a year and a half. When was the last time, except during the Emergency and the unstable but dictatorial period leading up to it, that the executive, and the thinking classes, made a habit of ridiculing the Supreme Court and former CJIs like this? And could the executive have ever got away with it?

* The Supreme Court still does not seem to know what to do with Justice Shylendra Kumar of the Karnataka high court, who has emerged as a whistle-blower of sorts. Internal democracy being one thing, how seriously would the executive take an institution which can neither protect itself from its own nor satisfy the dissenting voices from within? Could it just be that the Supreme Court’s own flip-flops over Dinakaran, Shylendra Kumar’s Chief Justice in Bangalore, have so weakened it morally as not to be able to keep dissent within itself? And if it cannot keep dissent within itself, can it be confident of always keeping its powers, particularly of appointing judges and managing the entire judiciary, within itself and unchallenged by the executive?

* The fourth point is where, in some ways, it all — decline of moral authority, if I may dare to call it, pushing my freedom of speech and maybe also luck — began. This was the weak, unconvincing and ill-advised manner in which the Supreme Court responded to the issue of making judges’ assets public. Having themselves forced the elected political class to declare their assets, the judges needed to find more convincing arguments to counter the growing public opinion that they were shy of subjecting themselves to what they mandated for others. This was further complicated by the way they handled the issue of whether the Chief Justice’s office should come under the ambit of RTI.

Read together, these instances underline a disturbing phenomenon: where higher judiciary could be losing, or at least begin to be seen to be losing, some moral authority and, more importantly, popular adulation and support. Issues like judges’ assets, Dinakaran, many of the other appointments, unchallenged attacks by the executive on former CJIs, have all created an impression that the top judiciary today is either too weak to defend itself, or cannot, because it is no different from other institutions, particularly the executive. This is dangerous.

I had argued in National Interest (‘Noose Media’, IE, April 3) that the media had to be careful now as it was running the risk of breaking the social contract which emerged post-Emergency and which guaranteed its freedoms that were not clearly codified either in the Constitution or any legislation. It would be doubly distressing if the judiciary were to also head that way. The truth, however, is that judicial autonomy, and the deep-seated national belief that nobody should be allowed to mess with it, has also been earned through decades of democratic debate and evolution, and has been steeled through challenges and crises, particularly before and during the Emergency. Smarting under the rebuff of the Kesavananda Bharati judgment, Indira Gandhi had floated the idea of “committed judiciary” which peaked during the Emergency, but did not survive it. Just like the media, therefore, the judiciary woke up to a new dawn of moral authority, respect and freedom with the lifting of the Emergency. It has not looked back, at least not yet, and the people of India have only applauded it, at least so far. And if the judiciary’s highest stature among all our democratic institutions is again a reward of that post-Emergency social contract — as a guarantee against majoritarian excess — most of its autonomy has been scripted by itself. The judges’ appointment procedure, for example, is entirely self-created, and so far the executive has not challenged it. Judges, public opinion would say, may not be perfect and may make mistakes, but the executive can always be trusted to be vile as well as venal. So stay with the judges.

That notion is now under challenge. Indian democracy is now more mature, and therefore also more questioning. Issues of judicial accountability can no longer remain within, like family secrets. Surely none of our eminent jurists would like the higher judiciary to be seen as some kind of an exalted khap panchayat which takes all decisions about itself and about its own within closed confines of its own hallowed biradari. The judges’ conduct, whether professional or personal, cannot remain away from public scrutiny. And public opinion is now cleverer, and unforgiving. You can no longer, for example, get away with the argument that while the judiciary may be rotten at lower levels, it gives a glowing account of itself at the top. People now know that the judiciary is a self-managed and self-governed institution, that higher courts have administrative responsibility over the lower ones and therefore cannot escape accountability for the rot there. And as popular doubts and dissonance grow, people begin to ask, is the judiciary the same as the others? Like bureaucrats, politicians, even the media? That is the danger. Because the executive, or rather the political class, is watching this, and sharpening the knives.

sg@expressindia.com

http://www.indianexpress.com/news/with-all-due-respect/644617/0

Of constitutional ‘due process’

Abhinav Chandrachud IN THE HINDU

Two recent judgments of the Supreme Court of India highlight a paradigm shift in its approach to original constitutional norms.

Two decisions announced by the Supreme Court of India in May strikingly indicated that the American doctrine of “due process” has firmly become a part of Indian constitutional law, despite the Constitution-framers’ contrary intentions. In the first of the two cases, decided on May 5, Selvi v. Karnataka, the court considered the constitutionality of the investigative narco-analysis technique, holding it permissible only when the subject consents to its use. In the second case, decided on May 11, Union of India v. R. Gandhi, a Constitution Bench unanimously held that certain provisions of the Company (Second Amendment) Act, 2002, establishing the National Company Law Tribunal and Appellate Tribunal, suffered from unconstitutional “defects.”

These decisions have been analysed and re-analysed for their immediate policy implications. However, the philosophy underlying these decisions, namely, constitutional “due process,” highlights the paradigm shift in the court’s approach to original constitutional norms, and deserves analysis.

The American doctrine of “due process” had been rejected by the framers of the Indian Constitution at the time of its enactment. The fifth and fourteenth amendments to the American Constitution provide that life, liberty and property cannot be deprived without “due process of law.” This seemingly innocuous phrase, borrowed, oddly, from per legem terre in the Magna Carta, acquired a nuanced meaning in the American constitutional context, consequent to years of judicial exposition.

Over time, the phrase acquired “substantive” and “procedural” meanings, each of which enhanced the powers of the judiciary. For example, in exercise of powers conferred by the “due process” clause of the Constitution, American courts would create “new” or unenumerated rights. Most notably, these were the rights to abortion, marriage, homosexuality, the use of contraceptives, child-rearing, and so on. The “due process” clause mandated harmonious constitutional interpretation, and enabled American courts to apply federal constitutional standards against the States on principles of “fairness” or “ordered liberty.” Interestingly, in the Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary in favour of the feudal baronage, quite contrary to the spirit of judicial activism that is now attributed to the clause.

One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, travelled to the United States, where he met Justice Felix Frankfurter, a Judge on the Supreme Court. At the time, Justice Frankfurter was involved in a judicial tussle with Justice Black over the meaning of the phrase “due process of law.” Justice Black hoped that it would be interpreted to strictly incorporate rights traditionally available against the federal government, and made available against the States. By contrast, Justice Frankfurter advocated a less stringent approach, arguing that the due process clause merely required the courts to apply the principles of “fairness” or “ordered liberty” against the States. Justice Frankfurter advised B.N. Rau to avoid the due process clause in the Indian Constitution because it imposed an “undue burden” on the judiciary. Consequently, in 1949, the phrase “due process of law” was dropped from the text of what was to become Article 21 of the Indian Constitution, despite what appeared to be strong support for the clause on the sub-committee on fundamental rights.

However, despite the express textual choices of the framers of India’s Constitution, the “due process” clause found a backdoor entry into Indian constitutional analysis in the late 1970s through the right to equality, which has ever since become a conduit for activist constitutional interpretation. In Justice P.N. Bhagwati’s classic opinion in the Maneka Gandhi case, it was held that the Constitution mandates “fair” procedure when rights are deprived. Although the court would repeatedly hold in subsequent cases that the American standard of “due process” did not apply to the Indian Constitution, in reality the court would apply nothing less than due process standards to administrative and legislative authorities in its emphasis on “fair, just and reasonable” procedure.

The two latest decisions of the Supreme Court are striking for their express rejection of the framers’ textual value choices. While previous Supreme Court opinions would at least theoretically reject American “due process,” in the narco-analysis case Chief Justice K.G. Balakrishnan held that “substantive due process” is now a “guarantee” under the Constitution. This declaration is a remarkable rejection of the framers’ decision to delete the due process clause. In its narco-analysis opinion, the court upheld a right to mental privacy, recognising an “unenumerated” right as American courts would in exercise of the due process clause.

The right to privacy has been around in Indian constitutional law for decades, and the court’s opinion in Selvi merely adds to the existing body of law on constitutional privacy. However, in expressly articulating the “guarantee” of due process, the court has on one of only a few occasions in its history recognised that India follows the due process doctrine, expressly rejecting the framers’ intentions.

In R. Gandhi, decided on May 11, the court held that certain provisions of the law regarding the appointment and qualifications of the members of the National Company Law Tribunal, suffered from unconstitutional defects. However, the Indian Constitution does not strictly or textually permit courts to strike down a piece of legislation merely because its provisions are “unfair” or “arbitrary,” in the absence of a violation of one of its enumerated provisions. To overcome this difficulty, the court in this case held that principles such as “independence of the judiciary” are part of the “essence” of the right to equality, and consequently must be enforced. Formerly, principles such as “independence of the judiciary,” “rule of law” and “separation of powers” would usually be applied using the basic structure theory only to constitutional amendments. In its R. Gandhi opinion, the court has remarkably applied loose constitutional principles rooted in its understanding of “fairness” or constitutional “basic structure” to ordinary law, much in the same way as Justice Frankfurter would have done in the American due process cases.

The theory of “original intent,” whose most vociferous proponent, Justice Antonin Scalia, now sits on the American Supreme Court, demands that courts interpret constitutional provisions according to the intention of the framers of the Constitution. In Indian constitutional law, the theory was followed strictly by the court until after its decision in the habeas corpus case, where the Supreme Court followed the framers’ intentions and permitted civil liberties to be suspended during the Emergency. The illegitimacy of the court’s opinion in the habeas corpus case subsequently offered a sufficient moral basis for the rejection of the theory of original intent. The Supreme Court’s latest opinions strike a lethal blow to the theory of original intent, and firmly recognise that constitutional “due process” is here to stay.

(The writer, a graduate of the Harvard Law School, is an associate attorney with a law firm in the United States.)

http://www.hindu.com/2010/05/24/stories/2010052452651100.htm