The Supreme Court bench comprising of Justice Chelameshwar and Justice Sapre delivered a judgment, which will have a widespread impact on governance of higher education in India – Dr. Janet Jayapaul v. SRM University, in continuation of their “penchant” for education, recently reflected in Haryana Panchayati Rajdecision, delivered by this very bench.

By holding that a deemed university is ‘state’ under Article 12 of the Constitution of India, courts have opened the doors for application of even ‘vertical’ fundamental rights to these institutions. For an outsider to the practice of law, it may sound like an issue of mere technicality and semantics wrapped up in legal jargon. However, this case has a great potential in playing a very important role in infusing constitutional values in administration of these educational institutions. The issues such as gender discrimination, curbing of freedom of speech, right to privacy, etc. within the college environment are no more merely questions of propriety and culture, but also amenable to a claim in a court of law. Therefore, the outcome of this semantic exercise is very real, not just for the purposes of immediate case that the court was involved with, but for long-term educational reform in India.Facts of the Case

The appellant in this case was a professor teaching in the SRM University. He challenged the illegality of a notice served to him relieving him from his services. Madras High Court dismissed a writ petition filed against SRM University holding that a writ petition under Article 226 cannot be filed against a deemed university as it is not ‘state’. From this decision of Madras High Court, an appeal was filed in the Supreme Court. The Supreme Court held that a writ petition may be filed against SRM University and set aside the High Court’s judgment as SRM University is a “deemed university” declared by the Central Government under the UGC Act, 1956.

The decision: Deemed University is an authority under Art.226, and ‘state’ under Art.12

This writ petition was challenged on the grounds that the University is “neither a State nor an authority within the meaning of Article 12 of the Constitution of India and hence it cannot be subjected to writ jurisdiction of the High Court under Article 226”. It seems that the decision of the high court is anyway misplaced and does not follow the existing authorities on this issue of law.

This was also reflected in the expert opinion submitted by Harish Salve, where is stated,

“While deciding such issue is always to test as to whether the concerned body is formed for discharging any ‘Public function’ or ‘Public duty’ and if so, whether it is actually engaged in any public function or/and performing any such duty.” He further clarified that a body need be a state or its instrumentality for being subjected to writ jurisdiction under Article 226: “the expression ‘any person or authority’ used in Article 226 are not confined only to statutory authorities and instrumentalities of the State but may in appropriate case include any other person or body performing ‘public function/duty’.”

This submission of Salve also confirms with the earlier decisions of the Supreme Court. In the case of Andi Mukta Sadguru. v. V.R. Rudani, which is also extensively cited by the court in this case, the court had held,

“The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State”. (emphasis added)

The crux of the judgment lies in Paragraph 22. The court holds that Deemed University is “state” within the meaning of Article 12, though the issue in front of the court did not require it to decide if the university is a “state” under Article12. The court had already concluded that ‘providing education’ is a ‘public function’ and, that SRM University is performing that public function. The combined effect of these two findings is that the case already satisfied the requirements for maintainability of a writ petition under Article 226 of the Constitution. The additional finding of the court that SRM University is “state” has wider impacts.

The impact of this decision

According to the decision in Andi Mukta, it seems that since it is “state” under Article 12, a writ petition against Deemed University directly to the Supreme Court should also be maintainable. However, the relevance of the question – whether a deemed University qualifies to be ‘state’ – is not just relevant for the procedural issues such which court to approach. It is also relevant to determine if a body can violate certain fundamental rights (or against whom can the fundamental rights be claimed).

In our constitutional scheme, essentially, there are two kinds of fundamental rights. This distinction is made on the basis of whom it can be claimed against (or who can violate it). This distinction is apparent in the way fundamental rights are worded. For instance, Art.15(2) states, “No citizen shall be…subject to…”. However, Art.14 is worded as such: “State shall not…”. This means that while the second kind of fundamental rights can only be claimed against State (vertical rights), the first kind of fundamental rights can also be claimed against private individuals (horizontal rights). If court had held only that a deemed university is an authority against which a writ petition can be filed under Art.226, the horizontal rights would be enforceable against a deemed university, but not vertical rights. Since the court held that a deemed university is also ‘state’, even the vertical rights will be applicable. This means that several doctrines under Art.14 such as that of reasonable classification (i.e. in any purported action of inequality, there should be intelligible differentia for classification, and it should have rational nexus with the object) and arbitrariness will now be applicable to deemed university. It also means that other vertical fundamental rights, such as rights under Article 19 including freedom of speech can now be claimed against a deemed university.

The contours of these legal claims against deemed universities will depend on how courts decide the future challenges arising due to this holding. However, it can only be hoped that this judgment will convert certain questions of propriety in the governance of higher educational institutions into constitutional challenges.

Why is IP regulation required for jokes?

Certain expressions are already copyrighted. The copyright may be claimed over the specific performance (videos) or the collection such as in case of books. However, this post aims at focusing only on the content of a joke. We may, in principle, agree on the premise that when a comedian puts some creative efforts, his creative skills should be protected. Whenever we face an object that can be regulated, law seems to be the obvious regulator. However, the question that arises is, should this regulation be based in law? Lawrence Lessig, in his book, Code 2.0, suggests that essentially, there are four regulators: Market, norms, law and architecture. In this post, I adopt this very framework of regulation discussed by Lessig to understand the regulability of jokes.

Market and evolving architecture of jokes

In early 20th century stand-up comedy, the jokes mainly comprised of one-liners which were considered to be the common property. Later, the creation of jokes itself became more important. This can be attributed to the market where competition required the generation of joke content and not just performance. Therefore, comedians found themselves more invested. This was also affected by several changes in comic markets which furthered the demand for content.  This market demand also changed the structure of jokes in stand up comedy. The jokes, which earlier took the form of one-liners, were now divided into set-up and punch line. This shows the interaction of market and architecture as regulators of stand-up comedy industry. In the following sections, I will discuss the relevance of market and architecture in evolving norms and legal rules.

Evolution of norms in Stand-up comedy

Some of the classic writings on jokes considered the protection purely in terms of copyright. However, the later studies have argued that due to the existence of the norms in the industry of stand-up comedy, there is no need of legal protection. The norms governing the industry, though informal and without any legal backing are effective and extend from ostracism and badmouthing to at times, physical violence.

Earlier, when the jokes were mainly one-liners, the repetition of jokes was more acceptable and the rights of the creator existed in performance rather than in the joke content. However, a study conducted by Oliar and Sprigman shows that with later changes in the structure of jokes, the norms that exist in the industry of stand-up comedy no more recognise joke-theft justified. Further, the norms of the industry no more recognise the jokes themselves as commons. Therefore, these market changes also affected the change in norms of stand-up comedy industry.

Law as a regulator of IP rights over joke

A joke is essentially a literary creation like a poem, story etc. Therefore, at least in theory, it will merit copyright protection. However, the theoretical protection itself is not sufficient to sustain a substantial legal claim. This is because of the idea-expression dichotomy that lies at the heart of copyright. Copyright law protects the expression and not the idea. Another important, though not doctrinal concern is the costs attached with litigation. Sometimes, the costs may just overwhelm the market value of joke. Though not through copyright, the issue of joke stealing has come up in front of courts in several different forms. For one-liners, the tort of passing off may be claimed, if that one liner is an identifier line for the comedian. One such claim was also successfully made in in Foxworthy v. Custom Tees, Inc. (879 F. Supp. 1200 (N.D. Ga. 1995)). In some instances, the cases have also been filed under the claim of misleading advertisement.

No property regulation can ensure the eradication of theft, but it should ensure that enough protection to property is given that investing in property remains worthwhile. At the same time, we should be careful in expanding legal protections to every creative activity. This also works with jokes. Therefore, the essential question that will have to be asked is: whether the regulators other than ‘law’ are sufficient to protect the creativity? As demonstrated above, market, architecture and norms collectively provide sufficient protection to creativity in context of jokes.

(Thanks to the timely vacation and internship opportunities, both of us were lucky to witness the ongoing proceedings in the Aadhar matter at the Supreme Court)

A degree of finality is associated with the decisions of the Supreme Court by virtue of its position at the top of the hierarchy of courts in India. At the end of the day, however, the Supreme Court is final, but not infallible. Judicial remedies in the form of review and curative petitions are available to account for such fallibility, while at the same time, ensuring a certain degree of finality through its strict procedures.

The Supreme Court’s latest order in the Aadhar case (October 15, 2015), however, seems to have created a new nebulous remedy which strikes against this essential characteristic of finality associated with the decisions of the apex court.

The Three Orders

After multiple hearings over the past few months in the Aadhar matters which began in 2012, a three-judge bench comprising of Chelameswar J., Bobde J. and Nagappan J., passed three orders on August 11, 2015. By way of the first order, the bench noted that the matters involved certain “questions of importance involving interpretation of the Constitution” and were, hence, required to be placed before “a bench of appropriate strength”. In furtherance of the same, the bench directed the Registry to place the matters before the Chief Justice for appropriate orders. Further in the second order, realising the urgency of the matters, the bench noted the desirability of an expedited hearing. The third order containing interim directions sought to balance the various competing concerns raised by the parties till the ‘bench of appropriate strength’ finally decides the ‘questions of importance involving interpretation of the Constitution’ i.e. the constitutional status of the right to privacy (hereinafter interim order).

In paragraph 3 of the interim order, the bench, inter alia, restricted the usage of Aadhar cards for the purposes of only two social welfare schemes – namely, the public distribution system and the LPG distribution scheme.

The Interim Applications

Subsequently, the Union flanked by a number of governmental agencies like the RBI, the SEBI etc. filed applications seeking clarifications and/or modifications of the interim order. To put it briefly, they argued that the interim order should be clarified and/or modified to permit the voluntary usage of Aadhar cards for other social welfare schemes as well. However, the Writ Petitioners submitted that such applications cannot be entertained by the three-judge bench and should be adjudicated by the ‘bench of appropriate strength’ supposed to be constituted for determining the “questions of importance involving interpretation of the Constitution”. In doing so, they relied on an order of the Supreme Court in Modern Dental. After hearing the parties on the interim applications, the three-judge bench passed an order on October 7, 2015 holding that these “applications for modification are also heard by a larger bench” [emphasis supplied].

What is interesting to note is that the Court used the phrase “a larger bench”. Arguably, ‘a larger bench’ can mean one of the following two things – (a) any bench with more than three judges OR (b) the ‘bench of appropriate strength’ which finally decides the ‘questions of importance involving interpretation of the Constitution’.

A Bench only For Interim Applications

The Chief Justice constituted a five-judge bench, on October 9, 2015, after being concerned about ‘sparing’ nine judges. Things took an interesting turn on October 14, 2015, when at the beginning of the hearing, the Chief Justice made it amply clear that the five-judge bench was constituted only for the purpose of adjudicating the interim applications. This observation was confirmed in the order made yesterday (October 15, 2015). He further observed during the course argumentation that the final hearing (on the existence of the right to privacy) may be conducted by a larger bench comprising of either seven or nine judges.

Clearly, the five-judge bench was constituted specifically for adjudicating the interim applications. Therefore, the Chief Justice understood ‘a larger bench’ to mean (a), as mentioned in the section above, and not (b). With all due respect, we are of the view that this is not only an erroneous understanding of the order (dated October 7, 2015) but also has far reaching implications on the aspect of ‘finality’ attached to decisions of the Supreme Court. It would have been perfectly fine if this five-judge bench was primarily constituted to decide the status of the right to privacy, and in passing, it also adjudicated the interim applications.

Review in Disguise

Intriguingly, the Chief Justice’s understanding effectively creates another nebulous stage in Supreme Court litigation, distinct from the stages of review and curative petitions.  Further, such a stage is without any basis in law – neither does the Constitution nor the Supreme Court Rules or precedent support such an understanding.

To account for the characteristic of infallibility, two remedies (albeit at different stages of litigation) are available to a litigant.

The first remedy is to file a review petition under Art. 137 of the Constitution read with O. XLVII of the Supreme Court Rules of 2013. The Supreme Court has the power to “review any judgement pronounced or order made by it” under Art. 137 in accordance with the procedure laid down under O. XLVII of the Supreme Court Rules of 2013. The second remedy is to file a curative petition under, and in accordance with the procedure laid down in, O. XLVIII of the Supreme Court Rules of 2013. This remedy is available only in cases wherein a review petition has been filed and dismissed by circulation.

The setting up of a five-judge bench specifically for clarifying and/or modifying the interim order is essentially a review petition disguised as a referral to a larger bench. This inference is further supported by the fact that O. XLVII, R. 4 of the Supreme Court Rules of 2013 envisages modification of decisions by way review petitions and not by constituting larger benches.

As I write this, I am less than 24 hours away from graduating, once and for all, from this place that has been my home for the last five years. And if someone asked me right now, ‘what is it that you learnt in law school?’ , I’d have to say: “I learnt to have fun!”

It’s ironic that my first ever post on 19(1)(a) will also be my last one. But if I didn’t post on this typically law school forum once before I left, I’d probably regret it for a long time to come. And God knows, I already have had a few significant ones in this place!

To be honest, sentimental hand washing is not something we are used to seeing on this august forum (which is usually reserved for the far higher purpose of entertaining cat fights!). However, I would be lying if I said I won’t miss this place…a lot. And, for a lot of time to come, possibly… forever.

Soon, we shall be lost to law school. Another set of alumni.  And while, there seems to be no prima facie ‘rational’ reason to explain what connects law schoolites through generations;  it probably is the knowledge that, like it or not, we chose to be here. No matter, if it was our first option, whether our parents forced us to write the CLAT, or foreign admissions just didn’t happen; in the end, we did nail that one two hour paper…and in doing so, became an unmistakable part of this place.

 I know, a lot of things aren’t the same as they were before. And when I came in, we were systematically taught by some of our seniors that those changes were proof of falling standards of law school.

In the last 5 years, I have been witness to and, more importantly, lived through quite a few significant moments. We won Jessup, Man Lachs, made finals of Vis, helped poor farmers in the remotest of areas, won an international debate and kept getting our jobs. We also fired our best professor, vandalized the acad, mismanaged funds and never fixed the damn internet. Mostly though, we (or at least some of us) drank a hell lot, smoked like chimneys and abused illegal substances that so deserve to be legal (:p).

And yet, here we are, after around 3000 hours of class with over 90 exams in 60 courses with 58 projects down the line…just as abnormally normal as the ones who have gone before us.

Are law schoolites of today failing at life more often? No. Are some of them losing their way abysmally? Yes. Are some of them poised to change the world? Hell Yes!

So…where is the fall? Maybe, just in our attitude towards this place.

What is often ignored in the cacophony of negatives is that there is still ample learning for those who want it. Ample opportunity for scam for those who want that. And, in my opinion, that’s been the best and the most unique thing law school has had to offer: The opportunity to do what you want and be who you want to be.  (I believe debaters have a term for that stuff :p)

Because college, for me, is the ideal (and probably the only) time for experimenting and learning new things…about the world and yourself, without serious repercussions. We can be stupid without fear. We can and should make mistakes.

And as long as NLS continues to remain the same open, all-encompassing society it has been in the past, law school and law schoolites will not fall. For the one thing that has not changed (and I hope never does) is that, no matter what and how many attempts at the opposite, law schoolites have remained zealous guardians of their own liberty.

My parting two cents: Guard it with pride, flaunt it, experience it, and most of all, strive to be worthy of it. This freedom is really hard to come by anywhere else. 

Maybe, law school was, once upon a time, a more ‘classroom-oriented’ rigorous place. However, I think today’s law school is rigorous for those who want it to be. There are more academic activities outside class, more opportunities for learning the law there.

It is also true that some of our best professors today happen to be ad-hoc faculty. But, for a professional course, it is naive to expect otherwise. The focus has shifted and needs to continue to shift to learning from the best professionals in the industry, coming back and teaching us in short bursts. Single-credit courses, seminars, special lectures, even teaching one or two modules out of a course characterize the way forward. Gone are the days when the best professionals in the legal area decided to shun work and become permanent faculty for peanuts. And while, some of us may choose to whine about it and make great romantic arguments about money-mindedness and what not, the smarter (or atleast the more dynamic ones) ought to adapt.

We need to create space for the above, either by combining some of the existing courses, reducing class hours for some ones or figuring other alternatives. That classroom learning has better substitutes is undeniable (and I think project exemptions are one of the many ways the college already recognizes this). Our aims have changed too. While some of us love the law, many of us see learning the law as ancillary, and as an instrumentality, to other aims. (I am not sure which part of that divide I fall in personally!)

That said, it true that our lead on the top has narrowed. Or more accurately, the top tier now has some non-schoolites and does not have some law schoolites. My guess is, that’s only natural.

In any case, maybe, when a national shooter, a female footballer who nails almost all males in her batch at it, a steadfastly driven Rhodes scholar, two of the sharpest logical minds with the eloquence that could put Obama to shame on most days, a perpetual convener who has arranged for more courses than can be counted, a politician whose heart very literally beats for anyone who is screwed and many many others get together for five whole years and work, sometimes in their self interest, sometimes for the greater good, mostly just discovering themselves without realizing it, the results are…well, pleasantly unexpected and unexpectedly grand.

My aim is not to paint an overly rosy picture of law school or the world. However, this happens to be the only place in my experience where one can pick up a conversation with 350/400 students (and quite a few MPPs too :p) and learn something utterly new and interesting.

I cannot end this post without mentioning the administration and our VC once. And, while I will be hard pressed to say that I agreed with all decisions made by the admin (I have reserved my strongest disagreement with some measures) however, on the whole, I am glad I was a student here during his tenure. He has, and at various points most others have, been encouraging to say the least and assiduously liberal to say just a little more.

As far as I am concerned, I think I grew as a person in law school. For that, I have a certain sense of gratitude towards this place. It allowed me to prioritize things my way and live on my own terms. It was a conscious decision from me to not consider classroom academics as very important. It allowed me the time to try out various different things, but mostly, after a somewhat checkered school life, college was, for me, a phase of life where I  just wanted to ease out. NLS allowed me that, and for that it will always have my thanks.

In the end, as we walk off into the sunset and face the ‘real’ world (a phrase that continues to confuse me more and more each day)…new challenges, new friends, new experiences await. For now though, there are the old memories which bring about a satisfied smile and a few tears of nostalgia.

And if I might take just another moment to preach to the choir, I’d say:

‘Always hate losing, I hated it with all my heart. But the only thing I hated more…was to not try for the fear of losing.’ 

Goodbye my fellow law schoolites and good luck!

Recently, Prof. Benedict Kingsbury engaged with the students of the National Law School of India University, Bangalore on “Some Core Approaches to the Study of International Law”. Post this interaction, we interviewed Prof. Kingsbury.

Q1. Why did you chose to foray into the field of international law as a student? What attracted you towards this area of law?

Well, I’m from New Zealand. It’s a small country with a population of around 4,000,000 only. Like every young New Zealander, I also wanted to travel and see the world. Intellectually, I felt about the same. New Zealand is a bit sheltered, and so I wanted to understand some of the issues and problems better by going outside New Zealand. I also thought about how there could be some scope about improving the quality of order and justice. I considered studying law and wanted to integrate it with other disciplines. I did my law degree in New Zealand, and then studied international relations for two years in Oxford, which also introduced me to Prof Hedley Bull, who was a great figure in that field. In fact, he had spent a semester at Jawaharlal Nehru University, and was at that time working on a book related to western dominance based on the post colonisation attitudes of the decolonised countries. I thought his work was very suggestive about what one could do with the study and application of international law, and I shifted my doctoral major to international law under Sir Ian Brownlie, QC. He was very engaged not only in the International Court of Justice litigation and arbitration, but also with the development of international law in states. Through these people, I saw the things you could do with international law. My own doctorate was on ‘Indigenous peoples in International Law’, which was at that time a very novel topic in international law, unlike today. I had worked as a lawyer with indigenous tribes in New Zealand. I felt that it was connected to a global movement, and so I took it up. At that time, it was a completely new topic in international law. Today, it is a standard topic. But at that time, I had a chance to be part of the process of creating this area of law, and this was another reason I was attracted to the study of international law.

Q2. Having been a student of Sir Ian Brownlie, could you tell us about him and his ideology? What were his defining contributions to international law, according to you?

As a person, he was inspirational! He had really good technique. Everything he spoke about was the product of his well-informed knowledge base and  careful thought processes. He was a real forensic lawyer, resisting slogans and platitudes. At the same time, he also had a vision of justice. He saw possibilities of using international law in creative ways. He had certain views of what could be done with international law, and was  thoughtfully dismissive of overly starry eyed projects and realism. His most significant contribution to international law, apart from his magnificent book, is a high quality systemisation of the practise of international law. He introduced a certain structure, and sharp use of principles of international law. His study had great depth and fortitude. He was also exceedingly well informed about other areas of law, such as laws relating to evidence, contracts, etc. I think you can see in his work a real blend of practise and systematic thought, and he was actually quite sceptical of theorising (although I am personally quite committed to theorising).

Q3. International law has often been understood to be a viable career only for academics and diplomats. Has the situation changed in the recent years? What are the new avenues for those who wish to have a career in international law?

The situation for careers in IL has been completely transformed now. In the earlier days, if you wanted to practise IL you would have to go into the Foreign Ministry or the UN or other such structures which were dedicated to the practise of IL. But now, IL as it is broadly understood, is everywhere. There are multiple transnational laws, there are multiple organisations which work with international laws and there is an international aspect t several areas of law now. For example, you could be working in the field of international sports law, climate change policy or studying global funds and structures which deal with HIV or other health issues. Even on the corporate side, areas like corporate social responsibility or e- commerce or even internet governance involves several aspects of international. Students often have an old fashioned understanding of what one can work on in international law. But it is a matter of looking at what disputes of legal issues arise across nations and addressing them using combined knowledge of multiple areas of law. For example, expertise in international civil litigation and evidence law can be beneficial to start a career in international law. There are multiple firms which also look for such talent, which combines an understanding and application of international law over disputes, and they also provide considerable opportunity for work in international law. Q4. What is your opinion of the developing countries’ perspective of international law as a new discourse within the academic literature in the field of international law? What are your suggestions for its growth and increase in relevance?

I think it is fair to say international law has been dominated by the North Atlantic writing and discourse to some extent, and a lot of the writing has conformed to the manner of international law laid out by this discourse. However, there has been a clear rise of high quality writing from certain institutions of higher learning and academics from the developing nations. Interestingly, the rise of the writing from developing countries in international law has coincided with the rise in the power wielded by these countries. At the American Journal of International Law, we try to promote the writing and ideas from developing country perspective. We have held multiple conferences for the same, in New Delhi, Cape Town, Sao Paulo, Buenos Aires, etc. In India, the work of Prof. B.S. Chimney has contributed greatly to the growing body of work in this area of international law, and is now the first India based member of the Board of Editors of the American Journal of International Law. This is an example of the fact that these voices are being heard, and there is full support for scholars and students to contribute to the growth of this discourse. But naturally, there is also a responsibility of these scholars to contribute original and innovative ideas, and not just write on the existing concepts and ideas.

Q5. What, according to you, are the certain skill sets students wishing to pursue international law should focus on developing?

First of all, I think it’s important to be a good lawyer! You have to take all areas of law seriously, and know how to work with all the elements of the law. So it is important to be good at contracts and evidence, if you want to be a good international lawyer. You need to have expertise in these areas and not separate them intellectually from international law, after which their integration is much more effective. You can start out with the same question and come up with multiple types of answers. So it is a good idea to have some view of the big picture, and then to look at the same questions again. Look at what are the big questions of justice – the larger issues around you. It is highly dynamic, and of course much more fluid and technical.

Q6. As an esteemed academic and an educator, what are your suggestions for students aspiring to produce original and quality academic literature?

So, about two thirds of a good research paper is the research question or the hypothesis. Start with something you really care about. You can care about nutrition of women or conservation of forests, but you must pick something very specific and realistic. Once you start with something you really care about, you must write what you think about it. You have to write your own opinion on the subject, without relying excessively on what other people have said about it. Keep it simple and within your scope, don’t be afraid to connect it to one village, or one individual or one house. I’d encourage you to have a very narrow, specific area of study, and to engage with it thoroughly.

Despite being meticulously detailed in most part, the Indian Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) is noticeably half-hearted in its treatment of issues of language-based barriers to access. For a country of as much linguistic diversity as India, potential linguistic hurdles to comprehending criminal proceedings are not only intuitively discernable, but have also demonstrated their growing presence over the years, with inter-state migrant workers and trafficked persons regularly coming into needless conflict with the law.[1] The problem which this piece aims to address is two-fold: First, that the CrPC grants only a limited right of translation/interpretation to accused persons, accruing only at the stage of trial and not earlier, substantively denying them a significant aspect of the Right to Fair Trial, and secondly, that in instances where the code does indeed make provision for translation/interpretation of evidence,[2] the absence of a standardised procedure has resulted in extreme irregularities/injustices and even “abysmal” results.[3] The latter refers not only to issues of access to translated/interpreted evidence by the accused, but also examines the quality of the translated/interpreted evidence which Courts use in the course of trial. In this attempt, the researcher shall highlight the extent to which the CrPC remains partially blind to issues of access and to the phenomenon of “lost in translation”.[4] In response to the same, this piece will briefly explore the possibility of introducing a mechanism to ameliorate the same. A more fundamental problem of linguistic access relates to the very conduct of all proceedings in a language foreign to accused, and this remains a theme underlying this piece.

The extent to which a Formal Right to Translation/Interpretation accrues to an Accused under the CrPC

The inclusion of Sections 277 to 282 and Section 333(1)(c) of the CrPC is demonstrative of the legislative awareness to potential issues of linguistic access which may arise while allowing individual State governments to choose their own ‘Language of Court’.[5] According to these provisions, any evidence which is in a language not understood to the accused, and is deemed necessary by the Court for the purpose of ‘formal proof’ “shall be interpreted to him (or his pleader) in open court in a language understood by him”.[6] The Record of the Examination of Accused and the operative parts of judgement of the court are to be interpreted similarly.[7] Further, an interpreter employed by the court for this purpose is bound to state only the “true interpretation of such evidence or statement”.[8] Formally, at least, an accused who does not understand the Language of a Court where s/he is being tried has the right to access evidence in a language understood by her/him. This right, however, accrues only at the stage of adducing evidence. Other proceedings, such as those relating to the Framing of Charges (Section 240), Bails and Bonds (Chapter XXXIII) and Police Investigation (Chapter XXII) have been glaringly excluded from the ambit of this right. Four judgements of different High Courts of the country have held that in the absence of an express provision for the same, an accused enjoys no implied or extended right to translated copies under Section 207 of the CrPC; reasoning which may be analogously applied to other provisions as well.[9] Thus, the right to translations/interpretations under the CrPC may best be described at limited, proscribed by the stage of proceedings, and the nature of the material to be translated.

Translation/Interpretation as a ‘Fair Trial Right’

 The Right to a Fair Trial, though not specifically enumerated under the Constitution of India,[10] has judicially been interpreted to be an important part of it, as part of the Right to Life and Personal Liberty under Article 21.[11]  While the exact shape and form of the Right to a Fair Trial remains fluid, with the Hon’ble Supreme Court expressing its inability to capture it within a “straightjacket formula,”[12] it is accepted that criminal proceedings adhere to Principles of Natural Justice and the ideas of Fairness.[13] The urgency of a detenu’s need to defend himself/herself has led to the recognition of immediate access to translations of his/her grounds for detention as an important right accruing to him/her.[14] (While the Hon’ble High Court at Madras sought to distinguish detention from the pre-trial stage, due of the absence of urgency, the researcher asserts that the rationale of giving a fair hearing applies to other stages of criminal procedure as well). Significantly, access to translated documents was observed to be an important component of the “bundle of rights” guaranteed as Fair Trial Rights under Article 21 of the Constitution of India by the Hon’ble Delhi High Court in Tuncay Alankus v. Central Bureau of Investigation,[15] where it observed that “the procedural fair trial standard incorporated under Article 6(2) of the European Convention (of Human Rights) is more or less the same as is guaranteed under Sections 278, 279 and 282 CrPC”.

Under the abovementioned Article 6(2) of the European Convention of Human Rights (hereinafter referred to as the “ECHR”), oral and documentary material must be made available to a person charged with an offence in a language understood by him/her. In Kamasinski v. Austria,[16] this right was interpreted to exist at the pre-trial stage as well.  The researcher believes that the Right to Translation/Interpretation under Article 21 of the Constitution of India, must, while resonating the language of the ECHR, extend to the pre-trial Stage as well. Infact, in Siddhartha Vashisht v. State,[17] where the Apex Court had observed that “[T]he right of an accused with regard to disclosure of documents is a limited rights but is codified and is the very foundation of a fair investigation and trial.” The spirit of the Constitution, the international understanding of Fair Trial Rights, and the interpretation of the CrPC would warrant that accused persons have a right to translation/interpretation in the pre-trial stage as well.

The phenomenon of “Lost in Translation”

In its uncommitted and feeble treatment of issues of translation/interpretation, the CrPC is far from providing for the adequacy/reliability of translations. While, under Section 282, the CrPC interpreters are bound in law to state ‘true’ interpretations of such evidence and statements as they may be called upon to translate, the statute fails to provide for the procedure for appointing Interpreters and Court Translators. It also remains silent on how the question of whether a document is indeed a ‘true’ interpretation must be answered. At the same time, it remains harshly ignorant to the difficulties of it being challenged by persons who are already disadvantaged by their inability to comprehend the official language of the court and have access to only flawed interpretations/translations of limited parts of important documents.  Obviously, in order to be real and effective, a formal right to translation/interpretation must mean a right to true, accurate and comprehensive translation.[18]

These legislative blanks have given rise to divergent judicial practices and clarifications issued by courts in spurts, in response to specific fact situations which highlight the phenomenon of “lost in translation”, often leading to the “inherent indeterminacy of translated language”[19] which affects the criminal justice system.[20] In Jai Singh v. State of Karnataka,[21] the Hon’ble Supreme Court observed that the translation of the judgement of the High Court had been “abysmal”; an incident representative of the problem at hand.  Similarly, in Rubabuddin Sheikh v. Central Bureau of Investigation,[22] a discrepancy in the translation of the charge-sheet seriously impacted the appreciation of evidence by the Hon’ble Supreme Court. Here, the phrases “sent somewhere” and “somehow made to disappear” were two alternative translations of the same piece of vernacular evidence, leading to the existence of differing versions of the roles played by the accused.

The kind of recourse which may be taken in cases of defects is largely limited, uncodified, and depends on the discretion of the Court. In the aforementioned case of Tuncay Alankus v. Central Bureau of Investigation, it was held that a defect in translation was only just an extreme irregularity, not enough to vitiate proceedings, unless factual injustice occasioned to the accused was proved. This naturally begs the question of whether a failure of justice, occasioned by such defect can indeed be demonstrated by an accused who is unable to comprehend the language of the court, and has access to only flawed documents in a language s/he understands.

In this case, the translator had been appointed by way of an advertisement in the newspaper, and government accredited authorities in Turkey had certified that there were indeed discrepancies in the translation. The Hon’ble High Court had further clarified that the finding of the Trial Court regarding the competence of the interpreter cannot be questioned; a position which the researcher believes to be quite apparently flawed, in light of the Trial Court’s own limitations in understanding the language in which the evidence was adduced. A similarly flippant approach may be observed in the decisions of the Hon’ble Himachal Pradesh High Court in Minunno Vancenzo v. State[23]  and that of the Apex Court in Shivnarain Kabra  v. State of Madras.[24]

This section thus, not only highlights how Fair Trial Rights of accused persons are violated, but also demonstrates that the mutilation of evidence, in the absence of corrective safeguards within the CrPC (or read into it by judicial interpretation) may result in flawed adjudication.

Procedural Safeguards and Mechanisms for Standardisation

The gravity of the problem at hand is perhaps best observed in the almost anecdotal judgement of the Apex Court in Vaithi  v. State of Tamil Nadu,[25] where “the correctness of the English translation was verified by this (the Supreme) Court with the help of a Tamil knowing member of the Bar and found to be accurate”.

Contrastingly in 1983, Chandrachud J. had, in an important decision of the Hon’ble Supreme Court on an issue relating to the translation of question papers, observed that “if English questions have to be translated into Hindi, it is not enough to appoint an expert in the Hindi language as a translator. The translator must know the meaning of the scientific terminology and the art of translation”.[26] Perhaps, integrity in the legal understanding of translation and access to language warrants a similar approach when it comes to criminal procedure, where the inquiry is no less technical.

Joshua Karton, in an approach similar to the one in Tuncay Alukas suggests a more inquisitorial role for presiding judges in cases where parties do not understand the language of the Court.[27] The researcher believes that this role must be understood as more wide-ranging than the one ascribed by the Hon’ble Delhi High Court, to the Trial Judge, who being non-conversant in the impugned language himself/herself, is hardly in a position to make any accurate determination of the truth of the translation. Solan and Tiersma, in Speaking of Crime, suggest the appointment of psychologists, linguists and scholars as expert witnesses to deal with issues of translation.[28] While this approach may have some merit, it has several evidentiary implications, which require pre-emption. Shah, Rahman and Khashu suggest comprehensive guidelines for Law Enforcement Agencies and Courts, claiming that “it is possible to ensure language access”.[29] Inspiration may be derived from these, as well as the African model,[30] while drafting guidelines for the Indian Criminal Procedure.

The researcher believes that issues highlighted in this section and the previous one, must be addressed by legislative safeguards, addressing the questions of: ‘Who may act as an interpreter?’, ‘Can the court authorise official translating/interpreting authorities?’; ‘Would the establishment of a dedicated national authority to oversee the same help solve the problem?’; ‘Would there be a presumption in favour of the truth and accuracy of translations/interpretations stated thus?’; ‘Is an interpreter an Expert Witness for the purposes of Trial?’, ‘How can defects in translation be challenged by accused persons who do not understand the language of the Court?’. Naturally, these answers must be such that they protect, substantively, Fair Trial Rights and ensure the collapse of linguistic hurdles faced by both the accused and the Court.

Despite an internationally felt need for the availability of more organs for medical transplantation, the sale of human organs and tissues is outlawed in most countries. Expectedly, this has encouraged the growth of an illegal, exploitative market for organ trade, hidden well under the carpet. Governments, then, feign blindness to the existence of such trade, incapacitating themselves from regulating it. Consequently, the market thus created is unfair and exploitative. “In general, the flow of organs, tissues, and body parts follows the modern routes of capital… from female to male bodies.”[1] Empirical studies in India highlight that the number of women who donate their organs is exponentially higher than their male counterparts.[2] At the same time, there remains established scientific consensus that there are no relative advantages of donations of organs from female bodies over those from male ones, renders this trend a cause for concern.[3] This essay examines how the very language and structure of the Transplantation of Human Organs Act, 1994 (hereinafter the “THO”) allows for its objectives to be circumnavigated to allow the existence of a gendered market for organ transplantation. It then comments on how such body politics have given rise to a Culture of Alienability of female body parts, thereby eroding the idea of equal citizenship.

One of the two ways in which the Transplantation of Human Organs Act, 1994 (permits living organ donation is by allowing for it to take place between ‘near-relatives’. The THO defines the ‘near-relatives’ of a person restrictively to include only his/her “spouse, son, daughter, father, mother, brother or sister”;[4] a list which was recently expanded to include grandparents and grandchildren as well.[5] Authorities who sanction Donation naturally presume that a wife, irrespective of how suspicious the conditions of her marriage may be, is willing to grant her body parts to her husband, solely out of love and affection.[6] While the Authorities are entrusted with the task of ascertaining the consent of donors, this consent remains vitiated due to internalised sociological and psychological factors.[7] Interviews conducted by the researcher indicate that in almost all cases of near-relative transplants, consent is vitiated through (i) economic or other kinds of influence, or (ii) it being originated in conceived notions of the role of the woman and diminished value of her body within the family, or (iii) relative absence of consenting male donors.[8]

The other kind of living organ donation permitted under the THO is of the kind prompted by considerations of “affection and altruism”. Designed as a safeguard against the commercial sale of organs while allowing for their availability to those who need it, this provision requires the Authorization Committee to scrutinise all such cases in order to verify whether the said donation was prompted my genuine considerations of ‘affection and altruism’.[9] Regrettably, studies show that most donations prompted by “affection and altruism”, are made by women.[10] M.K. Mani, argues that “they ­(exploitative middle-men) do them (kidney sales) with the seal of approval from the Authorisation Committee, and are therefore a very satisfied lot. The law, which was meant to prohibit commercial dealings in human organs, now provides protection for those very commercial dealings”, indicating the THO, by necessary implication, is blind to these sales.[11] Cultural studies in Kidneyvakkam and Ayanavaram ascribe this to the perceived role of the female in society and economics, both limiting her ability to choose her profession as well as making her more vulnerable to invasive processes in order to be more economically valuable than men.[12] While a woman is not free to work in more rewarding professions due to constraints of societal conditioning and opinion, she is expected to sell her organs as an apologetic compensation for her perceived inability to the economically useful; subjecting her to an exploitative market and the mercy of untruthful middle-men and false promises.[13]

Sociological conceptions relating to the roles of women within families, the kind of occupations they may engage in, the economic value of their bodies and the tacit reluctance of men donating their organs has led to the creation of this Culture, according to which the body parts of a woman are mobile and can compensate for the relatively diminished economic role.  A Culture of Alienability of Human Organs necessarily rests upon the premise of their commodification.[14] When organs are traded in order to supplement the income of a family, it leads to the ‘collateralisation’ of the human body.[15] On the other hand, the prevention of commodification lies at the heart of the reason for the criminalisation of commercial dealings in Human Organs.[16] Commodification of human organs is said to deny the subjectivity of human beings, leading to their being treated as fungible instruments.[17] The commodification and collateralisation of human organs, then, takes away from the very purpose of the criminalisation of commercial trade in organs, both in India and internationally.

A Culture of Alienability of female organs, even when prompted solely by filial affection or altruism, then, strikes at the very objective of the THO. It has been argued out that the existence of such a parallel dialogue between the State and females denigrate them to the status of second-grade citizens. Cecelia Van Hollen argues that the gendered treatment of the human body in all spheres of public health creates different classes of citizens, with women occupying a significantly inferior position.[18] Consequently, the Culture of Alienability of Female Organs and their Commodification has clearly rendered female bodies as belonging to second-grade citizens to whom the logic and purpose of the THO does not apply, even as its framework continues to do so.

[1] S. Shroff, Legal and Ethical Aspects of Organ Donation and Transplantation, Vol. 25(3), Indian Journal of Urology, (July-Sept., 2009).

[2] Id, also see L. Cohen, Where It Hurts: Indian Material for an Ethics of Organ Transplantation, Vol. 128(4), Bioethics and Beyond , 147, (Fall, 1999).

[3] F. Ge, T, Huang, S. Yuang, Y. Zhou, W. Gong, Gender Issues in Solid Organ Transplantation and Donation,Vol. 18, Ann Transplant, 508, (2003).

[4] S. 2(9), The Transplantation of Human Organs and Tissues Act, 1994.

[5] S. (1), The Transplantation of Human Organs and Tissues Act, 1994.

[6] S. Shroff, Legal and Ethical Aspects of Organ Donation and Transplantation, Vol. 25(3), Indian Journal of Urology, (July-Sept., 2009).

[7] S. Carney, The Red Market, (Hachette India, Gurgaon, 2011).

[8] Interviews with Interview with Mrs. A, aged 60 years, Kolkata, on 29^th January, 2015 and Mrs. Y, aged 35 years, Kolkata January, 2015 (Names of the interviewees changed. On record with the author) . Further, Interviews with the Hospital Authorisation Committee and Competent Authorities, BGS Global Hospital, 25^th April, 2015.

[9] See S. Shroff, Legal and Ethical Aspects of Organ Donation and Transplantation, Vol. 25(3), Indian Journal of Urology, (July-Sept., 2009), and S. Carney, The Red Market, (Hachette India, Gurgaon, 2011).

[10] Id.

[11] M.K. Mani, The Nephrotoxicity of the Tsunami, Letter No. 154, Vol. 20(3), National Medical Journal of India, (May/June, 2007), available at http://www.nmji.in/archives/Volume_20_3_May_June/Letters/Letter_from_Chennai.htm, (last visited on January 15^th, 2015).

[12] L. Cohen, Where It Hurts: Indian Material for an Ethics of Organ Transplantation, Vol. 128(4), Bioethics and Beyond , 147, (Fall, 1999).

[13] S. Carney, The Red Market, (Hachette India, Gurgaon, 2011).

[14] K. M. Bridges, On the Commodification of the Black Female Body: The Critical Implications of the Alienability of Fetal Tissue, 123, Columbia Law Review, Vol. 102, No. 1 (Jan., 2002).

[15] Supra note 7 at 141.

[16] See B. N. Colabawala, Issues in Organ Transplant, Indian Journal of Medical Ethics, (2002) and S. Wilkinson, Commodification Arguments for the Legal Prohibition of  Organ Sale, Vol. 8(2), Health Care Analysis, 189, (June, 2000).

[17] S. Wilkinson, Commodification Arguments for the Legal Prohibition of Organ Sale, Vol. 8(2), Health Care Analysis, 189, (June, 2000).  

[18] C. C. V. Hollen, Moving Targets: Routine IUD Insertion in Maternity Wards in Tamil Nadu, India, Vol. 6(11), Reproductive Health Matters, 98, (1998) as cited in L. Cohen, Where It Hurts: Indian Material for an Ethics of Organ Transplantation, Vol. 128(4), Bioethics and Beyond , 147, (Fall, 1999).

Cricket, the Board for Cricket Control in India and cricket fans are in a strange relationship triangle . I suppose love is definitely involved, but I won’t go so far as to call it a love triangle!

The BCCI is the (sole) guardian of cricket’s interests in India. BCCI organizes the cricket, selects the players, creates a fixture list and organizes games across the breadth of the country.

Cricket is many things to many fans. An escape, a drug, a love affair that has its ups and downs but never dies, a comforting presence, a memory of ages past, a thing of nationalistic pride, a source of entertainment and fun, or just a sport to be followed with fellow sports fans and create a community of like minded individuals.

Whatever their respective relationships to cricket, the BCCI and the fans have never enjoyed the best of relationships. To the fans, the BCCI is the bumbling, corrupt and incompetent monolith incapable of thinking about anything but money. To the BCCI, the fans are a fickle and dangerous mob who are like a bunch of petulant children constantly in need of amusement and mollification. Yet, the BCCI needs the fans. Cricket in India survives because of the passion of the fans.

And the fans need the BCCI. Where India is in the cricket world was not foreordained simply because of the opened up economy and the demographic dividend. The BCCI has done the hard work of spreading cricket to the smaller centres, created the wealth and infrastructure,  and stood up for India’s rightful position as the most important country in world cricket.

How should fans therefore relate to the BCCI and vice versa?

It is here that we find the problem of accountability.

Accountability, a word more often used in the context of businesses and the State within a specific framework of laws, poses problems when used in the context of a privately run and managed sports body and the fans of that sport who are not members of the sports body. Unlike with governments, cricket fans can’t vote the BCCI leadership out. Unlike with public companies, cricket fans can’t force the company to act as a a majority of shareholders want it to. Unlike with businesses we can’t just take our custom across the road because cricket is not a fungible commodity (whatever the economists among you may think!).

The only option left to the cricket fan therefore is perhaps the Courts.

That path seemed closed by the judgment of the Supreme Court of India in Zee Telefilms v Union of India, a case that spawned the Indian Cricket League and indirectly, the Indian Premier League as well. The long and short of it is that Zee Telefilms which lost the bid to broadcast cricket in India to ESPN Star Sport challenged BCCI’s decision to cancel Zee Telefilm’s bid in the Supreme Court of India under Article 32 of the Constitution on the basis that BCCI’s decision was unconstitutional. This required a two step argument – 1) to show that BCCI was “state” as defined in Article 12 of the Constitution and 2) since it was “State” it was bound by the equality clause of Article 14 of the Constitution of India which has also been interpreted by the Courts to include a duty not to make arbitrary decisions. In a narrow 3-2 ruling the Supreme Court of India threw out Zee Telefilm’s case on the ground that BCCI was not “State” for the purposes of the Constitution. The majority ruled that since the BCCI was not government run, funded or controlled, or perform any governmental functions, it could not be State whereas the minority judgment analyzed the BCCI’s functions and found that it was in fact “State”.

The majority judgment is of course right. It had no choice but to apply a 7 judge Bench decision of the Supreme Court of India in Pradeep Kumar Biswas v Indian Institute of Chemical Biology which laid down the test to determine whether a given body is “State” or not for the purposes of Article 12. Broadly, the test the Supreme Court laid down in Pradeep Kumar Biswas relates to whether or not the body in question is created by a law (as opposed to created under a law), has law making powers itself and is performing functions that would otherwise be performed by the Government. The majority, on applying this test to the BCCI, found that it did not meet that test and therefore held that it was not “State” under Article 12 and Zee could therefore not approach the Supreme Court directly to seek enforcement of fundamental rights against the BCCI.

Yet, the door was not shut entirely against litigants aggrieved by the BCCI’s actions. A crucial passage in the majority judgment goes on to state,

 Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32. (emphasis mine)

The implication is that anyone aggrieved with the BCCI can still approach the High Courts seeking relief under Article 226 for the violation of any legal right. It does not even need to be a fundamental right protected by the Constitution. Under Article 226, the powers of the High Court to give relief suitable to the facts of the case are much wider than the Supreme Court of India under Article 32.

As I’ve written before, this little door of opportunity was seized upon by the Kerala High Court to begin criminal proceedings under the Prevention of Corruption Act, 1986 against officials of the Kerala Cricket Association for misuse of funds. The Supreme Court upheld this order relying precisely upon the above passage from Zee Telefilms.

The Supreme Court hasn’t yet categorically held that the BCCI is an “authority” for the purposes of Article 226. Yet, the Supreme Court has acknowledged that some of the functions carried on by the BCCI would mean that it could be treated as an “authority” for the purposes of Article 226 of the Constitution.

Theoretically, therefore, there is no bar preventing an aggrieved fan approaching the Constitutional Courts of India against the BCCI.The problem however is showing what legal right has been violated by the BCCI’s actions.  Obviously for regular civil disputes relating to contract, property, et al the civil courts can always be approached. For tax and competition law cases, the appropriate regulators have all been actively at the heels of the BCCI.  The difficulty is in showing how the average cricket fan of the country has a legal right to demand that the BCCI be run along certain lines.

One possible route to enforcing accountability is the Right to Information Act which can be applied to all “public authorities”. However, “public authorities” defined under Section 2(h) are only those bodies created by the Constitution, Central or State Laws or substantially controlled, funded and financed by the State or Central Government. The BCCI and respective state associations (except the Services Sports Control Board and the Railways Sports Promotion Board) clearly do not fall under these definitions. Only an amendment to the RTI Act, which brings sports associations which select national teams for that sport, irrespective of how such associations are constituted can bring the BCCI under this Act.

Of all the various “stakeholders” that the BCCI repeatedly harps about, the average cricket fan enjoying the game, either at the stadium or elsewhere is the one who has the least power in her dealings with the BCCI. Advertisers  and sponsors have the power to withdraw their sponsorship. The various constituent associations of the BCCI have the all important vote, and indirectly their members as well. Players, at least those on the State teams and the national enjoy the protections of a contract and a professional relationship with the Board. Perhaps more could be done to empower them, but surely they are nowhere near as voiceless as the ordinary fan.

In the darkest moments of despair, I wonder if all the talk about accountability is laughably silly when it comes to cricket and the BCCI. After all, to borrow a popular Marx-phorism, is the pusher “accountable” to the junkie? If the weed is good, if the highs are accessible and available, what does the junkie care beyond that and as long as the money pours in, and as long as the the law stays away, what does the pusher care? So sometimes there are turf wars, new druglords come and old ones fade away, as long as the goods are being delivered, what do the junkies care?

But I know I’m being unfair to the fan. The fan doesn’t need a metaphorical hit to get through the day. Junkies don’t spend hours debating the  relative merits of drugs or the technical excellence in the manufacture or worry about the future of the drug for that matter. To be sure there will always be the casual fan who’ll switch off and shift to something else occupy the time. But the cricket fan, the one on whose back the BCCI struts the world scene, dictates terms to Governments and poses itself as the envy of the cricket world cares, and cares deeply about the cricket.

Is it too much to expect the BCCI to acknowledge that fact once in a while at least?

]]> http://www.criticaltwenties.in/lawthejudiciary/using-question-with-the-wolf-or-enforcing-accountability-from-the-bcci-with-the-law/feed 3 http://www.criticaltwenties.in/lawthejudiciary/disappointment-in-nagarbhavi http://www.criticaltwenties.in/lawthejudiciary/disappointment-in-nagarbhavi#comments Sat, 18 May 2013 22:24:35 +0000 Sidharth http://www.criticaltwenties.in/?p=5405 I apologise in advance for the ad hominem criticisms contained in this post. I was employed in a temporary teaching position at the National Law School of India University (NLSIU) in Bangalore between July 2011-February 2013 . While my services were terminated without any statement of reasons, I am quite convinced that this was a retaliatory measure taken in response to my open criticism of some decisions made by the institution’s Vice-Chancellor in the recent past.  While the immediate trigger for these criticisms was the imposition of a curfew on students (since loosened) following an incident of sexual assault in the vicinity of the campus in October 2012, I also flagged numerous concerns about the damage being done to the teaching programs at the school on account of opaque decision-making. In this post, I have reproduced the text of the e-mails that I had sent to the faculty, staff and students of NLSIU on December 12, 2012 (highlighting concerns about the curfew) and March 1, 2013 (reflecting on the inexplicable termination of my services).  I am doing so in response to feedback received from friends and well-wishers, many of whom have assumed that I lost my job solely due to an emotional outburst against the imposition of the campus curfew.  As the content of these e-mails will demonstrate, I chose to question my superiors on several issues, many of them touching on the preservation of the core characteristics of a publicly-funded academic institution. I used the forum provided by the internal listservs since the previously established practice of regular faculty meetings has been discontinued over the last four academic years. I hope that this post will compensate for the selective reporting of this matter elsewhere.

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Sent: Wednesday, December 12, 2012 5:42:09 PM
Subject: Re: Notification regarding restrictions on movement

Dear NLSIU community,
I am afraid that this latest notification comes across as a disproportionate and potentially counterproductive measure. Prof. V. Nagaraj (Registrar) had suggested the advancement of the permission time from 12:30 am to 9 pm in the faculty meeting that was held on November 8, 2012 i.e. a few days before the emergency meeting of the Executive Council on November 11, 2012. Yesterday’s notification indicates that the decision to implement this change is in pursuance of the deliberations in the Executive Council. Therefore, it would be safe to assume that both Prof. R. Venkata Rao (Vice-Chancellor) and Prof. V. Nagaraj can point to the minutes of the said meeting in order to defend this notification. However, the issue is far more complex than that.

In the faculty meeting, many of us had expressed our reservations about advancing the time for restricting the movement of students. At a very preliminary level, this measure has no rigorous causal link with the physical safety of students in general. While students have been and can be advised to avoid dangerous areas in the vicinity of the campus, imposing such blanket restrictions is an unduly paternalistic move. There have been numerous instances of sexual harassment and physical abuse of NLSIU staff and students in broad daylight. These problems cannot be eradicated with a simplistic measure such as constraining the movement of students after 9 pm. In fact such restrictions are likely to result in more students choosing to stay off-campus in the future, thereby escalating the risks to their physical safety. As the word gets out, it may also affect our attractiveness for prospective applicants, exchange students and visiting scholars among others. It is also quite foreseeable that not allowing students to enter after 9 pm may result in numerous instances where students can be left stranded in the vicinity. In addition to these practical concerns, there is a larger question of the symbolism inherent in the institution’s response. Given that these restrictions are clearly a knee-jerk response to a crime committed against one of our students, we are indirectly engaging in victim-blaming rather than addressing the root of the problem.

Another cause for worry is the opacity with which such a decision has been made. With all due respect, the members of the Executive Council are not well-informed of the ground realities of this institution. The constantly floating composition of these bodies and the relative detachment of their members is explicitly intended to ensure independent oversight over the affairs of the institution. However, they ought not to intervene in the day-to-day management of the institution. The role of the governing bodies is to make surgical interventions in case of a sustained pattern of institutional failure. Being an autonomous institution, the onus is on ourselves to keep our own house in order. In matters such as these, the leaders of the institution should have held meaningful consultations with all stakeholders, namely faculty, current students, parents and alumni before issuing such a notification. At the very least, the Vice-Chancellor and the Registrar could have explained their respective point of view in an open meeting for the NLS community. It is very easy to selectively ask a few individuals for their opinions and make sweeping decisions that have adverse consequences for the immediate stakeholders. I am afraid that this is exactly what seems to have happened in this instance.

I do realise that being in a temporary teaching position, whatever I say can be summarily brushed aside by the Vice-Chancellor,  the Registrar and the senior faculty members. The larger point worth examining at the moment is the gradual erosion of democratic practices within the NLSIU administration and faculty members. Educational institutions are not expected to be democracies in the strict sense, since the relationship between teachers and students is akin to that of trusteeship. However, there are certain norms of consultation and deliberation that should be followed among the faculty members as well as the administrative staff, irrespective of claims of seniority or past experience. The last few years have witnessed the non-continuance of weekly faculty meetings (the recent one being an exception) and an unprecedented centralisation of decision-making both with respect to academic and administrative matters.

I am not qualified to comment on administrative matters such as construction and fund-raising but I do have serious objections to the way in which the academic programs are being handled. I have already expressed my opposition to the untrammeled interference with evaluation through the Grievance Redressal Mechanism contemplated in the rules for the undergraduate program. The manner in which this provision has been interpreted and enforced over the last two academic years is a direct assault on teacher autonomy and thereby violative of the structural features of NLSIU. While there is no principled opposition to the inclusion of such a remedial power, the nature of these interventions has severely distorted the incentives for students and teachers alike to apply themselves to their expected roles. Given the absence of regular faculty meetings on academic issues (the Undergraduate Council has not met even once in the current academic year), there has been no forum to question the interpretation and enforcement of the said rule. Likewise, there seems to have been no vertical or horizontal check on teaching standards for quite a while. Several courses have more or less collapsed since they have either been allocated to instructors with no previous background in the respective fields or poorly-performing instructors have been allowed to continue in their roles on account of extraneous factors. In some cases, instructors have a self-aggrandized view of their own teaching capabilities whereas their actual performance is far below what students expect in an institution such as NLSIU. The most surprising factor is that the recommendations of administrative staff are often given more weightage in decisions about subject-allocation as opposed to the views of faculty members who are directly engaged in teaching. I can of course go on with a laundry-list of complaints, but that would detract from the issues at hand. The main point is that unless we revive the channels for deliberation that had been developed in the past, we will continue to make suboptimal and potentially harmful decisions.

I appeal to the Vice-Chancellor and the Registrar among others to prioritize the school’s long-term interests. We are of course very fortunate that the school has received UGC assistance for expanding the physical infrastructure and our leaders deserve their share of credit for the same. However, an institution such as ours has gained prestige for its academic rigour and the stimulus for self-exploration that it provides to its students. At the moment, both of these features appear to be in jeopardy.

…

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From: sidharth chauhan <…>
Date: Fri, Mar 1, 2013 at 5:43 PM
Subject: Statement on my dismissal from NLSIU
To:  <…>

Dear NLSIU community,

As most of you would have learnt by now, my services as a visiting faculty member at NLSIU have ended. I had received a notice for termination of service on January 31, 2013 and since I was in a temporary teaching position there was no obligation on the employer to state reasons for the same. There is no administrative or legal recourse in light of the nature of the service contract. Accordingly, I have removed my personal belongings from the residential and office space that had been assigned since July 2011.

While it is open to the Vice-Chancellor to attribute my dismissal to the Executive Council, let us not keep up with any pretence. Those who were present at the emergency meeting of the Executive Council (EC) on January 13, 2013 have confirmed that there was a resolution passed in that meeting which authorised Prof. R. Venkata Rao to act as he deemed fit in my case. This was evidently in response to the tabling of the e-mails which I had sent to all of you on December 12 and 13, 2012 as well as a private e-mail sent to the Vice-Chancellor on December 17, 2012. Hence, it is not plausible to say that my dismissal is unrelated to these e-mails which were openly critical of some of the Vice-Chancellor’s decisions in the recent past. It is clearly a decision made by Prof. R. Venkata Rao in the exercise of his own judgment, albeit under the authority of the EC. Needless to say, it reflects a retrograde approach which is out of place in a 21^st century law school. Institutions such as ours have evolved in an environment of self-criticism and open dialogue, both with respect to academic and administrative matters. However, the present incumbent has refused to recognize the instrumental as well as intrinsic value of deliberative decision-making, primarily by discontinuing the established practice of weekly faculty meetings. Furthermore, my dismissal comes across as a warning meant to discourage other members of the faculty and administrative staff from asking difficult questions. The head of the institution seems to have worked out a convenient strategy. He chooses to ignore the inputs and the opinions of the faculty members by refusing to call meetings and then hides behind the authority of the EC to push through ill-considered measures. Never mind that the EC has a floating membership that largely consists of sitting justices, practicing lawyers and civil servants who visit the school twice or thrice in an academic year and hardly have the time or the inclination to understand its inner workings.   

If there were indeed some other reasons behind this decision, those reasons should at least have been informally communicated to me before the issuance of the notice. Were there serious inadequacies in my own teaching? To the best of my knowledge, the feedback received from students has largely been on the positive side. My performance in the five regular courses that I have engaged so far has not been assessed either by the Undergraduate Council or the Academic Review Committee, which are the competent bodies in such matters. The deliberate neglect of these bodies is another issue that deserves comment elsewhere. I must also reiterate that I willingly took on teaching responsibilities for two regular subjects in the July-September 2012 trimester (Legal Methods with first year students and political theory with second year students). Barring a couple of exceptions, instructors at NLSIU have not taken on such a workload in more than a decade. Perhaps I had outlived my utility and the University has identified better qualified teachers for the subjects that have been assigned to me over the last two academic years. In the interest of the learning process, I request the Vice-Chancellor to share the names of the instructors who will now fit into these roles.

As I had tried to explain in the e-mails that have ostensibly led to my dismissal, we need to address the larger questions about the core features of NLSIU and its future as a site for meaningful teaching and research. Debating these questions is doubly important since there are at least fifteen autonomous law schools that have been established on the same pattern, with more likely to be set-up in the coming years. The present administration’s emphasis on construction and publicity may create a positive impression in the minds of occasional visitors but insiders can vouch for the marked decline in the taught programs. The ordinary incentives for students and teachers to apply themselves to their expected roles have been heavily distorted by the untrammeled interference with evaluation. Under the guise of the ‘Grievance Redressal Mechanism’ introduced in 2009, the present Vice-Chancellor has used his personal judgment to change grades in almost all subjects at the end of the academic year in 2010, 2011 and 2012 respectively. While these have been described as remedial interventions, they have given short shrift to accepted considerations of process such as revaluation by instructors with experience in the relevant subject. It is now evident that most of these interventions have been made by Prof. R. Venkata Rao alone. I must highlight that he has not taught a single course since the start of his tenure in May 2009 and his second-guessing of the subject-teachers’ evaluation is even more questionable since he is not involved in reviewing their performance through any formal channels. Under these circumstances, a section of the student body has also become accustomed to the liberal use of the ‘Grievance Redressal Mechanism’ with some of them openly questioning the need to apply themselves to their studies, perhaps in the belief that the Vice-Chancellor will protect them at the end of the academic year. In short, a remedial provision has been interpreted and enforced in such a manner that it has undermined the autonomy of the teachers as well as the integrity of the learning process.

It would have been far better if the Vice-Chancellor had confined his attention to administrative matters such as the organisation of events and fund-raising while leaving the academic decision-making to those who actually teach. It is difficult for any self-respecting instructor to work in the environment that prevails at present. It has also emerged that two of our most experienced faculty members chose to leave NLSIU in the recent past since decisions made by them (while holding the Undergraduate Chair) were frequently ignored or overturned by the present Vice-Chancellor. When one faculty member privately questioned the Vice-Chancellor about the irregular interference with evaluation, he vaguely referred to some directives of higher-ups in the Union Government and went on to caution that a high rate of failure could lead to unnecessary distress among students. While I agree with the broad proposition that the existing examination rules should be interpreted in a manner that is sensitive to the needs and interests of the students, it is difficult to justify the unprecedented manner in which the judgment of subject-teachers has literally been thrown into the bin. Such reasoning totally undermines the foundational characteristics of the institution. NLSIU was designed so as to be insulated from the pressures of partisan politics and short-term thinking that could undermine academic pursuits. Its’ autonomous character not only signifies independence from undue influence by external parties but also a certain degree of autonomy for its faculty and staff. While a centralized style of functioning maybe appropriate for some settings, it has no place in an academic institution that claims to be the national leader in the field of legal education. In the school built by Dr. N.R. Madhava Menon, the faculty, staff and students have a duty to constantly ask questions about their immediate environment so as to collectively work for its improvement. Building an academic institution is an arduous process and consolidating it is even harder. In the twenty-fifth year of its teaching programmes, the school can profit from more robust questioning of its own workings. By dismissing me and seeking to silence his critics, Prof. R. Venkata Rao is desperately trying to undermine the deliberative ethos of the institution. What is even more serious is the evident lack of communication amongst the faculty members. Given the absence of regular faculty meetings, there now seems to be a presumption of distrust among several factions as well as a reluctance to collaborate in meaningful pursuits. As outlined above, this is contrary to the culture of open minded discourse that we seek to inculcate among the students.

From the perspective of students, the culture of extracting concessions from the head of the institution now includes repeated and inexplicable extensions of term paper deadlines, condonation of attendance shortages and the conduct of special repeat examinations for flimsy reasons. The easy availability of such concessions translates into shoddy classroom engagement and obvious deficiencies in writing skills, even among the students in the advanced years of their studies. Perhaps these concessions are handed out to ensure a certain degree of popularity with the student-body. However, the net consequence is a serious dilution of the quality of education that is expected by those who seek admission to the NLSIU. In the long-run, this is bound to have a negative impact on the employment prospects of students graduating from this school as well as its hard-earned reputation. While some may yet make a comprehensible argument for such populism, it is difficult to ignore the myopic thinking reflected in some other academic decisions such as those of allocating subjects to instructors with no previous background in a given area. Subject-allocation in such an inexplicable manner has adverse effects on the learning outcomes for students while also being an imposition on the hapless instructors who are forced to teach subjects that they are not familiar with. Unsurprisingly, it is younger instructors in temporary positions who usually find themselves in such situations. Such working conditions are perhaps a harsh reality in poorly funded colleges located in remote areas. However, there is absolutely no excuse for the continuance of such practices in a supposedly elite institution.     

My motivation for taking up a teaching position at the NLSIU had germinated from my own experience as a student here a few years ago. The five years spent in this school helped me to move on from past failures and opened my eyes to a culture of open dialogue and self-reflection. The opportunity to interact with immensely talented peers was truly transformational. The initial discomfort with seemingly irritating questions about one’s own interests and background can easily morph into a life-long commitment to rational argumentation and lateral thinking. Not only does every student who passes through this school learn to overcome cultural stereotypes but there is also the sometimes unconscious inculcation of respect for diversity. Ten years after having started as a student, I can claim to have visited my friends in almost all parts of the country and even beyond, learning something about their culture along the way. I had decided to pursue a career in teaching by the time I reached the final year, primarily owing to close interaction with several faculty members as an office-bearer of the student body in 2006-07 and the opportunity to act as a teaching assistant in 2007-08. Even the decision to pursue a judicial clerkship after graduation was geared towards a teaching career.

While I am thankful to Prof. R. Venkata Rao for giving me the opportunity to teach at my alma mater for the last twenty months, such gratitude cannot be inflated to blind obedience. Please note that I am not loosely invoking philosophical anarchism. As participants in institutions, we are bound to hierarchies, but they must serve constructive and beneficial ends. If hierarchies function in an opaque manner, it is our duty to ask questions of those who claim power over us. Hopefully this is not the endgame for me at the NLSIU and there will be a chance to return on the other side of a doctoral degree and more importantly a leadership change that will see the restoration of the deliberative ethos of this institution. For now, I am in talks with another institution for possible employment in the next academic year, proceeding in the hope that the idea of an autonomous law school is not a lost cause.

…

Framed as an attempt to draw a balance between press freedoms and the integrity of judicial proceedings, the judgment recognises a new remedy wherein litigants can seek postponement of the publication of news-reports about cases in which they are involved. It is clear that such orders can be sought in respect of all forms of media, be it of the print, electronic or digital kind. While explicitly acknowledging this as an act of judicial-lawmaking, it was prescribed that litigants who apprehend a ‘substantial risk of prejudice’ in ongoing trials can approach higher courts by way of filing writ petitions to seek such a postponement. The specifics of such a postponement would then be decided by the higher court, effectively allowing litigants in lower courts to seek temporary ‘gag orders’ when they apprehend prejudicial reporting. The creation of this new remedy rests on the reasoning that the ‘freedom of speech and expression’ enumerated in Article 19(1)(a) of the Constitution is not absolute and must yield to the rights of litigants to receive a fair trial, the latter derived from the open-textured protection for life and liberty enumerated in Article 21 of the Constitution. Given that the apex court was dealing with the internal tensions among two distinct fundamental rights, one would have expected some more substantiation in support of its ruling.

The relationship between the judicial process and public opinion is a complex one. At one level, one can argue that the verdicts rendered in cases that attract a lot of publicity do have a bearing on public confidence in the judicial system. In this vein, there might be something to say in favour of an approach where judges are attentive to the currents of public opinion, as expressed in the press and elsewhere. There is also an expressive value in deciding cases in a manner that can be readily understood by the layperson so as to mitigate the perception that the judicial process is elitist and disconnected from widely held beliefs. However, the requirements of ‘open justice’ do not extend to blind reliance on the transient positions of the numerical majority. Adjudication in the common-law tradition principally relies on an adversarial form of litigation, where judicial discretion is constrained by elements such as the presentation of evidence and arguments in the courtroom, the principles upheld in past decisions and in some cases higher values enshrined in sources such as a Constitution. The judicial process is consciously designed to filter out emotive and impulsive factors that often shape public opinion. Furthermore, courts in liberal democracies are expected to discharge a countermajoritarian role, wherein they are often required to go against the grain of collective interests in order to safeguard the rights guaranteed to individuals and minority groups. A judge who is excessively concerned about public approval is very likely to arrive at a decision that compromises these features. While there may be some happy coincidences where the decision arrived at inside the courtroom may be in sync with public opinion, the latter cannot be held up as a factor that shapes the outcome in the first place.

In most common law jurisdictions, such issues are unlikely to be addressed through the judicial route. The judgment can readily be criticized as an exercise in judicial overreach, especially since it imports a remedy that appears in the Contempt of Courts Act, 1981 of the United Kingdom and has no textual basis in Indian law. In fact the court was advised by several senior lawyers who had appeared in the case that the task of regulating the reporting of court proceedings merits a legislative intervention. However, the conceptual division between adjudicative and legislative functions has been frequently breached by our courts in the past and the same is often portrayed as a credible strategy to counter-act the inertia of the political branches.

If one goes by the coverage of the arguments in this case (where no gag orders were issued), the Justices’ questions touched on generic problems such as inaccurate reporting and undue sensationalisation, both of which can perhaps be seen as detrimental to the interests of litigants and contributing to the erosion of public confidence in the justice-delivery system. In light of the facts that triggered this case, one should also read in a concern about the disclosure of private correspondence between litigants, the act of publication ostensibly interfering with adjudication. However, the judgment does not explain how disclosures of this kind are likely to cause prejudice to parties in a broader sample of comparable disputes. Furthermore, there is no attempt to explain why litigants deserve confidentially in all categories of litigation, especially when publicity is also a desired value in conducting legal proceedings. The evident assumption in the judgment is that uncontrolled reporting of court proceedings in status quo is frequently causing prejudice to the interests of litigants, thereby warranting the use of the law of contempt against the press. In that sense, the new remedy of seeking postponement is described as a preventive measure that would help reporters in avoiding such harsher sanctions. This line of reasoning is not just baffling but also appears to be circular. The judgment makes the leap towards providing a preventive remedy even though the perceived cause of the harm that is sought to be avoided, namely prejudicial reporting, has not been sufficiently demonstrated. Has Chief Justice Kapadia assumed that the publication of correspondence exchanged between the litigants is going to necessarily distort the judicial process? Stated in more general terms, is there an assumption that trial judges will necessarily make bad decisions if there is intrusive, excessive or inaccurate reporting about the cases that they are hearing? Since there are no credible empirical studies to confirm or deny the presumed correlation between intrusive reporting and decision-making patterns, it might be tenable to suggest that the apex court was responding to the felt need of preventing prejudicial reporting, rather than a demonstrated one. This suggestion can of course lead us to a much broader discussion on how the personal predilections of the incumbent CJI can have a noticeable impact on decisions about the allocation of time and resources for hearing cases.

The text of the judgment even has an ornamental reference to a much-cited essay by Ronald Dworkin (‘Taking Rights Seriously’, 1977) but does not really explain why press freedoms should not be taken seriously in this context. A more persuasive line of reasoning would have framed the issue as that of a direct conflict between press freedoms and the privacy of litigants. Perhaps the court had considered this and opted not to pursue it since the precedents recognising fair trial guarantees are cast in far more determinate terms than those dealing with expectations of privacy. In a recent speech, the CJI has favoured a method of constitutional interpretation that emphasizes the underlying principles embedded in the text rather than a formalist reading. This presumably Dworkinian search for principles is not a freewheeling inquiry but one that requires a coherent reading of text, political history, precedents and publicly articulated values. If CJI Kapadia is indeed an eager follower of Dworkin, then he might have missed a trick by choosing to ignore the numerous precedents that have expanded and consolidated press freedoms in post-independence India.

Nevertheless, since the court was considering general prescriptions, we can surmise that special attention was reserved for those suspected or accused of having committed violent crimes, since their identification in the press and the publication of stories recounting the details of the alleged crimes are more likely to militate against the ‘presumption of innocence’. The need to counter-act the risk of a ‘trial by media’ playing on the minds of a judge is perhaps on a higher footing than comparable possibilities in civil cases, since the liberty of the accused is at stake. However, the newly created remedy of seeking postponement as a preventive measure is unlikely to address that problem. Attempts to regulate the reporting of what happens in criminal proceedings can be easily undone since journalists can gather information from the investigators, witnesses and other interested parties outside the courtroom. Reports and commentaries can be framed so as to avoid direct discussions of courtroom proceedings and yet disclose information that might lead to assumptions of guilt and undeserved social stigmatization of the accused. Though described as a ‘neutralizing device’, the postponement of the publication of reports about judicial proceedings will not yield any noticeable gains. It is difficult to buy the claim that this newly announced remedy will serve interests that are not being already accounted for by existing statutory provisions. For instance, in some specified classes of litigation, the trial judge has powers to order in camera proceedings so as to protect the privacy of litigants, especially in cases involving matrimonial disputes and criminal cases involving sexual offences. As suggested earlier, if the litigants’ need for confidentiality must prevail over the value of open justice in some exceptional circumstances, it is better to wait for legislative prescriptions. A foreseeable consequence of the availability of this new remedy is that it will encourage a larger number of litigants to seek protection from the higher courts, thereby exacerbating delays in the trial stage and at the same time increasing the workload of judges in the respective High Courts.

Though the scope of the judgment is confined to the problem of news-reporting or commentary that can cause prejudice to the litigants in sub judice matters, one can also reflect on a neighbouring issue, namely that of statements made by lawyers and judges being misrepresented or quoted out of context in the news-media. In some cases, inaccuracies in reporting either feed into or escalate into unsubstantiated criticisms directed against judges and their orders. Very often, selective quotations of statements made or questions asked in an argumentative capacity inside the courtroom are conflated with the final disposition of the case. Undeniably, uninformed reporting often ends up portraying the judicial process in poor light. In such circumstances, the proper response is not the impulsive use of contempt powers but institutional measures designed to reduce the likelihood of inaccuracy and misrepresentations in journalistic content. This begs the question of whether courts should be insisting on some entry-level qualifications for legal correspondents. The Supreme Court of India, acting in its administrative capacity, has already prescribed a bachelor’s degree in law coupled with seven years of previous experience in covering lower courts as a prerequisite for recognising correspondents. Many of the High Courts are gradually following suit but similar requirements are not feasible at the level of the subordinate judiciary. One can readily anticipate the objection that journalism does not necessarily require expertise in the subject-matter that is being reported or commented upon. An incremental solution is to improve information-dissemination practices in the courts so as to both avoid and respond to errors as well as mischaracterization in reporting what goes on inside the courtroom.

As far as substantive criticism of orders and judgments is concerned, there ought to be no restraints on commentary, whether in the news-media or elsewhere. Judicial decisions become a matter of public record and all citizens should be free to comment on them, irrespective of their proximity to legal practice. Should there be errors in reporting, pointed clarifications can be issued. In the face of trenchant criticism, judges worth their salt will take it in their stride. However, there is a tricky terrain when it comes to personal criticisms of judges, especially in cases of allegations about bribery, improper conduct and conflicts of interest. In such circumstances, there are remedies available to judges such as defamation suits. However, the disproportionate use of the same has provoked another debate. In any case, regulating the reporting of court proceedings is unlikely to prevent such ad hominem criticisms. In fact, even temporary ‘gag orders’ might raise further apprehensions about judicial misconduct even when there might be none. Coming to the bogey of contempt powers, it is unfortunate that a climate of fear has evolved around their very mention. Even though they have been irresponsibly used in response to personal criticism and satire directed against judges in a few instances, they are intended to be used only as a measure of last resort if there is a direct obstruction in the conduct of judicial proceedings or a refusal on part of interested parties to comply with orders. In fact the threat of contempt proceedings has often compelled governmental authorities to comply with progressive orders.

The Court’s decision to admit this case for a hearing on merits appears to have more to do with how the Justices view themselves rather than problems that have been credibly demonstrated. Perhaps their perception of inaccurate reporting has been amplified by the fact that they are shown news-coverage on the legal system on a daily basis and the same entails exposure to errors and inconsistencies in large numbers. The Justices of the Supreme Court (and to some extent the High Courts) lead fairly privileged and insulated lives. Though they do not earn as much as the leaders of the bar, they are entitled to government bungalows and a retinue of personal assistants for secretarial work and domestic help. They are treated with ceremonial respect both at the courts and at social gatherings. They wield great power as long as they are serving on the bench. In a gradually democratizing society they are among the last bastions of a privileged elite among public officials. Such a setting can easily lead one to assume a paternalistic and self-righteous stance, all the while fuelled by the failures of the elected branches. In such a scenario, there is a dichotomy at play. On one hand, the higher judiciary plays an expressive role in interpreting the rights and guarantees in the constitutional text (free speech being amongst them), while on the other hand their immediate routine betrays a meaningless adherence to hierarchy. Given their elevated position inside the courtroom, it is quite conceivable that the scores of journalists (often a generation younger than the Justices) are likened to trouble-making children who need to be monitored. In acting on their urge to mind these children, the Justices might be revealing a lot more about themselves than what is ordinarily visible to court-watchers.