Prof Dr. B Errabi, a fine Constitutional law professor, and an honest and thorough academic if there was ever one, startled us with a confession in the middle of one of our Constitutional Law classes – he had not actually read the Kesavananda Bharati judgment in its entirety. It wasn’t accompanied by gasps of disbeliefs in my class as much as sighs of relief as we knew that now we wouldn’t be expected to read every last word of the 1000 and more pages, two columned, miniscule font-sized monstrosity of a judgment.

It would be hard to beat that confession out of most people who confidently mouth platitudes to the basic structure doctrine these days, but it is a pity that the most important case in the history of modern India is virtually inaccessible to all but the most dogged and patient of researchers. That, however, should not take away from efforts to grapple with the impact and consequences of that judgment (some of which we are still only now understanding) or the circumstances and events that led to it.

The locus classicus on this issue, by far, is Granville Austin’s “Working a Democratic Constitution: The History of the Indian Experience” and the trajectory of events described in the book, and the picture of the judiciary-Indira Gandhi conflict drawn by him continues to dominate our understanding of the case. Barring some hitherto unforeseen revelations, Austin’s narrative continues to hold the field and Andhyarujina’s book adds interesting details to this picture to provide us better perspective on the case.

As set out by Andhyarujina himself, the effort here is to show the extra-ordinary and sometimes, frankly bizarre circumstances under which this case was argued. Whether it was the seemingly trivial, school-boyish “fight” between HM Seervai and Niren De on who gets to open the Respondents’ case or the open sniping between the 13 judges on the Bench during the hearings (as though they were 13 scorpions in a bottle), we get a glimpse of the far-less-than-savoury doings and dealings that went on behind the scenes in this case. Most crucially, some pieces of the jigsaw puzzle fall into place regarding the controversial “View of the Majority” and we get some sense of Chief Justice Sikri’s attempt to gerrymander a majority in this case out of the 11 judgments delivered. For this, Andhyarujina’s book must be necessarily commended.

Such narratives put judgments in their proper perspective as not just markers in the development of constitutional law in the country, but also the fossil record that helps us understand the socio-political climate of the nation. The Kesavananda case was argued with definite political overtones hinting at the larger conflict over the wisdom and effectiveness of Government’s policies of the day. Much as we would like to believe otherwise, the book also lays bare each individual judge’s own political leanings deeply impacting the way the judiciary approached the issue of property rights under the Constitution.

In some respects, this also helps us appreciate why the judiciary is so powerful today. Quite apart from the vacuum in political decision making and an indecisive Executive, it cannot be missed that on the larger questions of political economy, the major political players (with the exception of the Communist parties who’ve become even more fringe political players) are almost ad idem on most issues. The difference between the major political formations on the issues of the day is one of degree and not of any genuine distinction. Dissension on these issues lies at the fringes and not at the core of our political system. Likewise, the utterly divisive issues are no longer national in nature – Telangana for instance. The absence of deeply divisive issues and a fragmented polity means that the judiciary no longer finds itself in a situation where it has to constantly fend off attacks to its own institutional integrity from other institutions. The two collegium decisions are good illustrations of the strong defences the judiciary has put up post-Kesavananda against Executive and Legislative interference, helped in no small part by the a wavering and weak Executive. The manner in which some of the judges who decided the Kesavananda case were appointed (as described in Gadbois’ book) and how this reflected in not just the judgments delivered, but also the sharp exchanges and the prejudices that they carried to the Bench (as illustrated by Andhyarujina), not to mention the subsequent supersessions, all give us some perspective on the whys of the Second Judges and Third Judges cases as well.

Yet, that is only one half of the book.

The other half is a critique of the basic structure doctrine itself. Here the book seems somewhat shallow and its analysis, incomplete. The essential premise is a grudging acceptance of the fact that while the Basic Structure doctrine maybe functionally necessary, it is not conceptually and theoretically sound enough to be capable of proper application – akin to the argument Seervai makes in the third and fourth editions of his book. While this fits in with the fine tradition of Indian scholarship of a sishya paying homage to his guru (Andhyarujina worked as Seervai’s junior in this case) the approach is not sufficiently critical enough and does not get to the academic underpinnings of the basic structure principle itself, for instance, the works of Carl Schmitt and Conrad Dieter.

The underlying premise of the criticism of the Seervai school of thought (which is also espoused by a minority of the judges in the Kesavananda case) is that the power of Parliament to exercise its constituent power is unlimited. This is based on the belief that Parliament reflects the will of the people and the power of the people is unlimited. Carl Schmitt challenges this belief and separates constituent power, i.e., the power to actually create and destroy Constitutions, from the ordinary legislative power of the Parliament. This distinction is essential as without it, the Constitution ceases to have any identity as a document of its own, and merely becomes the instrument of the party or the persons in power at any given moment. The consequence of this, as Schmitt himself puts it, is that a person when taking the oath to defend the Constitution is merely taking an oath to defend the power of amendment that is wielded by a body; a concept that reduces Constitutionalism to a nullity and places absolute power in the hands of an elected body with no fetters. (It is a different matter that Schmitt, perhaps of out of fear or cowardice, made a 180 degree turn on this aspect when the Nazis took over in Germany and went on to become their chief legal theorist and apologist.)

The idea that Parliament has no fetters apart from those expressly placed upon it by the Constitution is now losing traction as a fundamental principle of Indian Constitutional law. Justice Reddy’s judgment in GVK Industries is only the latest of a long line of judgments which first questioned and then slowly but surely undermined the idea of an all-powerful Parliament. Rather, what seemed like utter heresy to the judges of the Kesavananda Bench, i.e., Parliament is a creature of the Constitution and draws its powers (and not just the limitations on its powers alone) solely from the Constitution is now practically dogma. When viewed from this perspective, the basic structure doctrine seems far more obvious and less of a judicial chimera. It is true that its proper scope and extent need to be clarified and outlined, but that exercise rests only at the penumbra of the doctrine itself and not at its very core as Seervai, and by extension, Andhyarujina make it out to be.

Andhyarujina also questions the basic structure doctrine on the basis of its inherent vagueness and incoherence in some of its concepts, as also the disinclination of constitutional courts in Pakistan, Sri Lanka and Malaysia to apply the same in the context of their country. The first objection, I think, is somewhat specious as the Constitution itself is littered with vague phrases (“life”, “liberty”, “equal”, “freedom”, “expression” to take a few examples from Part III alone) but that has not prevented the growth and development of a rich jurisprudence of human rights in this country vesting these words with meaning. The fact remains that it is a fundamental attribute of language that meaning is not absolutely fixed for all time to come and vagueness at the penumbra should not be a reason to discard a concept that in its essence and core, is capable of being articulated.

As far as the “rejection” of the basic structure doctrine goes, in the examples given, perhaps only the Malaysian Supreme Court has categorically denied the existence of the basic structure in its Constitution. The position of the Pakistan Supreme Court is less clear (a sort of Schrodinger Cat like situation where the basic structure doctrine seems to be prevalent and not prevalent at the same time), while the Sri Lankan Supreme Court has rejected it on the basis that the amending power given to the Parliament in Sri Lanka is much wider. South Asian Constitutional courts having been the most active in “cross-constitutional borrowing” of concepts and ideas such as Public Interest Litigation, we may not have heard the last word on this either. The Bangladesh Supreme Court on the other hand, in Anwar Hussain Chowdhary v Bangladesh (1989 BLD (Supp) 1), has expressly approved and applied Kesavananda.

Admittedly, the shallow critique of the basic structure doctrine is not the focus of the work, and does not, in any way, take away from its importance in helping place the Kesavananda case in its proper perspective. At a time when, unlike their predecessors, Seervai and Palkhivala, senior counsel of the day have neither the time nor the inclination (and some would unkindly say, the intelligence) to engage with academia and theory of the law, Andhyarujina’s book is to be welcomed and a must read for any scholars of law interested in understanding the historical and political circumstances in which the Kesavananda case was heard and decided.

When one returns from a long break from work, one is tempted to take it easy, switch gears slowly, and settle into a rhythm in due course.

Except if you’re a judge of the Supreme Court.

In which case, you charge right back into the front pages of every newspaper with hard hitting judgments and wide ranging orders.

To recapitulate, just this week:

Special Investigation Team set up to probe black money stashed abroad

Chattisgarh Government directed to disband the Special Police Officers (better known as the Salwa Judum)

Allahabad High Court’s quashing of Land Acquisition by Greater Noida Industrial Development Authority upheld

Monitoring of Investigation into Cash for Votes Scam

Whew. This is what an activist Court looks like folks. The Court is telling the Government how to do its job, whether it is in “getting” black money back, or how to fight the Naxalite/Maoist problem, or how it should acquire land for “public purposes” under the Land Acquisition Act.

It is of course a different matter whether or not this is a good thing.

The issue of judicial activism has been done to death here and elsewhere and the arguments, after a point of time, are just the same old re-treads – competence v enforceability of rights; institutional integrity v immediate need; so on and so forth.

The situation that the Supreme Court, and India, in general, finds itself in, however, cannot be easily bracketed within any of the existing parameters of the debate. Rather, what is propelling the Supreme Court’s activist drive (and to a great extent, other High Courts such as the Karnataka High Court and the Delhi High Court, as well) is the impression of a severe case of governmental paralysis that has gripped our polity.

There is no dispute that severe problems currently buffet the Indian State from all sides and in all sorts of ways, but there seems to be no will on the part of the political executive at the Centre to take any action to steady the ship.

Whether it is corruption, black money, Telangana, unjust land acquisition, depletion of forest cover, you-name-it-we-face-it, the Government’s reaction seems to be to run around in circles like headless chicken. In some cases, they know what to do, but won’t do it for lack of political will. In others, they know what to do, but go ahead doing the exact opposite for short term political/economic gains. In others, they have not the first clue on what to do.

So far, the Supreme Court has stepped in to remedy the situation in two of the three types of cases I just pointed out. The black money case is a classic instance of where the Government just does not have the political will to seriously pursue the persons fronting for the illegally obtained wealth stashed abroad. As Justice Reddy’s reasoned order makes it clear, far more effort was spent in convincing the Court that nothing could be done or something was being done, than actually going out and doing this things to prosecute individuals with suspicious foreign bank accounts. It is no wonder that Justice Reddy, among the more soft spoken and temperate judges of the Supreme Court, should have completely lost his rag during some of the black money case hearings.

With land acquisition, we have the Court finally stepping in to call the Government’s bluff about “public purpose”. This was a particularly egregious case where the Greater Noida Industrial Development Authority invoked the “emergency” clause of the Land Acquisition Act to deny farmers a hearing before acquiring land to be handed over to private developers to build luxury apartments. This is not a first for the UP Government mind you, but one could say that this is so obviously and blatantly stealing from the poor to give to the rich that the Court had to put its foot down. It is ironic, but exactly the same fears were voiced by Justice VD Tulzapurkar in his minority judgment as far back as 1985 in Bhimsinghji v Union of India (in the context of the Land Ceiling legislation).

The enactments involving large schemes of social engineering like abolition of Zamindars, agrarian reforms nationalisation of undertakings and businesses and the like, where avowedly the benefit of the community or public at large is the sole consideration are distinguishable from the instant case, where “industry” has been expressly defined to include business, trade or profession in private sector and where power has been coffered upon the State Government to allot properties acquired under the enactment to individual businessman, trader or professional to enable him to carry on his private business, trade or profession, that is to say, where the legislation is a fraud on State’s power of eminent domain, such a provision of putting a maximum limit on compensation payable in respect of the acquired property irrespective of its extent will have to be regarded as confiscatory in nature.

Then, the majority — comprising CJ YVChandrachud, and Justices MN Bhagwati, V Krishna Iyer, and AP Sen — brushed aside such fears as being everything short of hallucinatory, but now, in retrospect, the views of India’s finest judges of all time seem, frankly, deluded.

The current wave of activism among the judges is at least a year old and can probably be traced to the time when Justice Kapadia took over as the Chief Justice of India fifteen months back. His now-tainted predecessor monopolized fresh PILs that challenged Government power or inaction and let them languish in the doldrums of delay. In his last year as the CJI, it was an open secret that this was being done to get a favourable post-judicial posting — to pick a body at random, the National Human Rights Commission — along with the perks and power that go along with it.

Justice Kapadia, is however, cut from different cloth and has brought a strict, no-nonsense approach to the business of manning the sentinel on the quie vie. PILs were spread among the various Benches that he constituted, ensuring that such matters go before judges who have an impeccable record of honesty. So far, he hasn’t been let down as the Supreme Court’s monitoring of various issues, be it the implementation of the NREGA, the right to food and shelter, corruption in high places or the rights of tribals has attracted much appreciation and very little opprobrium.

Ideally, the site for the resolution of such complex and intractable problems should be the halls of Parliament or the domain of the Executive. Ideally, the manner in which such problems should involve careful deliberation, balancing as many interests as possible, and without compromising the interests of the worst off. Ideally, the results of governmental action should inspire confidence in the public at large that their democratically elected government is capable of solving the intractable problems of the day. Yet, as we see everyday, the situation is not even close to being far from ideal.

Contrary to academic and popular belief, judges are aware of their limitations and their lack of power. Overreach makes the judges and judiciary look silly, and sixty odd years of judicial history has ingrained this much at least into judges. Writ courts can only monitor, but not investigate. They can only call for reports, but cannot compel compliance. They can strike down egregious actions of State, but cannot fully restore those irretrievably wounded by such actions to full health, in body or mind. Much of what is said by judges during argument, by way of observation, — and often (mis-reported) by the media — is a tacit admission of this powerful powerlessness. Oxymoronic perhaps, but that is the only way to describe a judicial body that has the power to lay down the law of the land, protect fundamental rights against governmental encroachment and do complete justice, but cannot always ensure that its orders are not casually disobeyed by lower level officials.

Let’s be very clear about this. India’s democracy is by no means safe, secure or stable. It is being constantly subverted and undermined in a hundred different ways every day. Yet, every day, someone fights back against this subversion and undermining knowing that failure would bring the institutions of democracy down to dust. Democracy is not just a formal commitment to periodic elections based on universal suffrage, but something bigger and more meaningful, and most importantly, something worth defending.

The battles that the present activist Supreme Court has picked up go to the very heart of such a rich conception of democracy;
How should a democratic state fight to protect democracy without subverting it? What’s is the role of the State in ensuring that economic growth is equitably distributed? How to ensure that the political process is not subverted by illegally accumulated wealth?

As Justice Reddy puts it so eloquently, these are fundamental, existential questions that have to be grappled with and cannot be wished away or put into a SEP-field. Among the major organs of the State, only the judiciary seems to understand that this is what is at stake, and why it has do something to prevent utter and complete breakdown of the institutions of democratic governance.

Maybe, if things improve, we won’t need a Supreme Court that has to keep an eagle eye on governing institutions. Maybe, it will go back to resolving intractable family disputes and gigantic corporate battles and when certain families are involved, do both at the same time. Maybe, the case load of the judges will leave them worrying less about what public interest compels them to do, and more about what the precedents and principles have to say about it.

Maybe.

For now, though, the sentinel’s strong, stentorian “qui vive” is comforting.

The buzz in my ears has only just about stopped. My temples no longer throb and my eyes don’t water from the heat, the stress and the exhaustion. The muscles around my neck and shoulders still feel taut and tense and they could perhaps do with a massage. The buzz has died down but the mind still races, forgetting that the finishing line has been crossed and it’s time to slow down. It is only now about a week into my summer vacation.

Six weeks off (more or less). No worrying about briefs, no miscellaneous days, filing, papers, affidavits, dates, adjournments, pass-overs, nothing. In fact no worrying at all. No deadlines, no causelists, no written submissions, no notes, no lists of dates and events. Nothing on my mind.

Popular culture limits lawyers’ work to their vocal chords and occasionally, their brains (and in really dramatic times, their hands). The lawyer is an actor on an elaborate stage; an actor in a play where the lines are generally ad libbed; an actor who waves papers for dramatic effect, and everything is a grand and significant event.

The truth is much more prosaic.

The average day is either one with a lot of scurrying, hurrying and worrying, or one of mostly preparing, waiting, and hoping. Of course this is all done in a Court. One scurries and hurries from court to court, worrying whether one will arrive in appropriate court before the matter is called. One prepares for a matter listed before court, waits in court for the matter to reach, and hopes that if it is taken up, it will be heard and disposed, thereby leaving one with one less burdens on one’s shoulders.

All the effort would entirely be worth it if one felt a sense of accomplishment, of goals reached or objects attained.

Alas if it were so.

Futility is the lot of the appellate lawyer, to say nothing of the litigant. Dates are fixed, matters are called out, only to stand adjourned. Fixed for another day, when the said day finally turns up, and the matter is called out… and again it stands adjourned.

It’s a strange Moebius Ring in time-space, this appellate court work.

When one is prepared for a case; briefs marked up, plastic stickies fluttering from the edges, written submissions fine-tuned, case laws picked up, marked out, and seven-copies-made, inevitably, almost unfailingly, the matter stands adjourned to a later date on a triviality. The opposing counsel isn’t prepared, it is too late in the day, a key pleading hasn’t been filed yet, a judge recuses himself, etc etc. You’ve seen it all, heard it all. After a point you start wondering if you somehow missed the point of learning the law; that you spent five years (or less) futilely understanding the scope and interpretation of sections, the width and breadth of legal concepts and the tools of analysis, and maybe, just maybe, should have really learnt how and when to take adjournments, ask for pass-overs, and come up with elaborate excuses to get a case “pushed off”.

And yet, and yet, just when you grow complacent in certainty, confident that a hearing is the last thing that’ll happen to the case, the Court’s ready to hear it, the opposing counsel come prepared, it is early in the day, and you have to be all set to argue. Or at least, assist your senior as he does. Panic, fumble, run around, bluster, blubber, plead, scatter yourself across the bar in a mad dash, and try not to appear the unprepared fool. And pray.

It’s a Moebius ring in space-time. On the days you are prepared for a case, it is never taken up. On the days you aren’t, it will be taken up. Causality going around in a continuum with no end, making you wish you were Schrodinger’s Cat and that you’d rather be dead than deal with this uncertainty.

Your time, is really not your time. Your schedule is determined by the Court. Your daily rhythms dictated by judicial diktat so to speak.

Months of this and your nerves are shredded. Your intensity flags, your mind either dulls down or turns on itself bringing forth neuroses and anxieties aplenty. You need a break, a time to repair, rest, and relax. A time when it is your time, and when you choose what to do with your time.

A vacation.

Then, there’s Delhi. Like the rest of north India in summer, it’s a furnace where the heat’s a living thing, clutching at your throat, smothering you in its blast of hot air, and choking you in its dust and pollution. Somewhere between the moisture vaporizing heat of the deserts, and the sticky messiness of the coasts, Delhi offers you the worst of both worlds; face-melting blasts of hot air coupled with sweat pouring cascades down your spine. If you’re lucky, you bear it only in those few moments when you walk from cool air conditioned indoors to a cool air conditioned car. If you aren’t, you’re stuck in a basement office where the air conditioner’s broken down with the stress, and you can never find autos to take you home after work and trudge the distance back. Your small comfort is living in a locality with mercifully short load shedding hours so that a decent sleep is guaranteed at night. And yet, there are those days when powers beyond your control (i.e., BSES REPL) conspire to rob you of your small comforts and you spend an uncomfortable night wishing you’d never been born.

Our ancestors had the right idea, work and party at nights and at dawn, sleep through the day in cool interiors,and create and preserve a deeply iniquitous system where others labour through the day to keep said interiors cool. Some vague and dismal ideal of work ethic compels us to fix our work timings to co-incide with the hottest parts of the day, subjecting ourselves the hammering heat pounding down upon our skulls.

The Brits had the good sense to pack up and head off to the hills when the summer set in. Call it the vestige of a colonial past, or the early dawn of rationality, but the Supreme Court (like other High Courts of North India) decided that a month away from the heat and dust was necessary for a thinking man or woman. Save for matters of utmost importance and urgency, the Court closes its doors to litigants all and sundry, and willy nilly, lawyers as well. It is necessary.

Perhaps I sound ungrateful about my line of work. I’m not. I still love my job. I chose it for myself after all. I just don’t want to fall out of love with it.

Just… don’t grudge me my love; don’t grudge me my vacations.

The writ petitioner was a subordinate judge in Jharkhand, who was dismissed by the Governor of Jharkhand on the recommendation of the Full Court of the High Court of Jharkhand. The process had begun with a confidential report of the Inspecting Judge of the Garhwa Civil Court which observed that the petitioner did not prepare his own judgments and got them prepared from someone else. The Chief Justice, based on the report, referred the matter to a Full Court, which considered the infraction serious enough to recommend the petitioner’s removal from the service. Article 311 of the Constitution provides that a person who holds a civil post under a State cannot be dismissed by an authority subordinate to that which appointed him, and but for exceptional circumstances, he may not be dismissed ‘except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges’. However, Article 311(2)(b), allows for an inquiry to be dispensed with ‘where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry’. The Full Court thought fit to dispense with an inquiry since “it was not practicable in the interest of the institution to hold an inquiry since it may lead to the question of validity of several judgments rendered by him”. The Governor acted on the recommendation and dismissed the petitioner from the service. This decision was challenged by means of a writ petition, on the ground that there had been no notice, no enquiry, insufficient evidence, and non-application of mind. It was further contended that the requirements for removal under Article 311 of the Constitution were not satisfied.

The Supreme Court examined the scheme of the Constitutional provisions, and observed that although the pleasure principle was incorporated in Article 310, this was subject to Article 311. The powers contained therein, in particular paragraph (b), “is an absolute power of the disciplinary authority who after following the procedure laid down therein could resort to such extra ordinary power provided it follows the pre-conditions laid down therein meaningfully and effectively”. On facts, the Full Court was entitled to come to the conclusion that it did, and the Supreme Court observed that the concern for the interests of the institution of the judiciary was a valid ground for dispensing with the enquiry.

The petitioner further argued that the satisfaction as to the need to dispense with the inquiry had to be that of the ‘authority empowered to dismiss or remove’ him. This authority, by virtue of Article 311(1) could not be subordinate to that which appointed him. Here, since the satisfaction was that of the Full Court and not the Governor, the petitioner argued that Article 311(2) was violated.

The Supreme Court rightly dismissed this argument. However, with respect, the reasons provided by the Supreme Court appear dubious. The Court held that the petitioner was a judge for the purpose of Article 233 of the Constitution, and hence was appointed by the Governor in consultation with the High Court. Further, “under the scheme of the Indian Constitution the High Court is vested with the power to take decision for appointment of the sub-ordinate judiciary under Articles 234 to 236 of the Constitution. The High Court is also vested with the power to see that the high traditions and standards of the judiciary are maintained by the selection of proper persons to run the district judiciary”. On this basis, the Court concluded that allowing the High Court to make an assessment for Article 311(2)(b) did not violate Article 311(1). However, a simpler and less controversial rejection of the argument was possible, based on the language of Article 311(2)(b). The provision only requires the appropriate authority be satisfied of the need to dispense with the inquiry, and needs to record the reasons for the satisfaction in writing. It does not provide that the satisfaction cannot be based on the recommendation of a subordinate authority, or that the satisfaction must be based on investigations conducted personally by the appropriate authority. Hence, unless complete non-application of mind on part of the Governor is alleged and proved, the fact that his satisfaction was based on a recommendation of the High Court does not fall foul of Article 311(2)(b).

In sum, this decision is a welcome example of judicial accountability, and a liberal approach being adopted in the interests of the judiciary as an institution.

One question that has often vexed me is that which presents itself in the following hypothetical-

A bench of five judges decides a particular case by a majority of 3:2, three of the judges coming to the conclusion X and two coming to the conclusion not-X. The minority of two, when coming to the conclusion not-X, relies on reasoning Y. Of the majority, two of the judges relied on reasoning not-Y in arriving at conclusion X. However, the third judge forming the majority agreed with the minority on reasoning Y, but for some reasons (maybe application to facts, or some countervailing principle) came to the final conclusion X. Now, in a subsequent case, if a lower Court is asked to decide on the validity of reasoning Y, is it bound by the fact that three of the judges in the previous case adopted reasoning Y? Or is it to ignore the reasoning of the minority, and hold that since two of the judges forming the majority adopted the reasoning not-Y, that is what is the ratio of the case? Is there a third option? Matters get further complicated if none of the judges forming the majority agree on the reasoning. In that case, if we have the three judge majority relying on reasoning Y, not-Y and Z respectively, what are lower courts bound by?

My initial view on this was based (in the absence of authority, which is usually an ominous sign), on the separation between the reasoning of a case, and the conclusion arrived at. I believed that although the majority may have come to the same conclusion on facts, the legal principles all the judges employed to arrive at their respective conclusions must be considered irrespective of whether the judges espousing those principles ended up in the majority or the minority. The reasons for this were two-fold: first, just because a judge disagreed on his assessment of facts did not seem a strong enough reason for ignoring his legal reasoning in arriving at his conclusion; secondly, for purely practical reasons, particularly in India, adopting the approach of ignoring the judgments of the minority would often leave lower courts with Supreme Court dicta with no real binding ratio (the decision in Kesavananda Bharati would be an ideal example).

Whatever my initial views may have been, I have now come across two sources that take the opposite stance- and given their stature in India and the United Kingdom respectively, I can do no better than defer to their wisdom. The Indian authority is Mr. Seervai, in his analysis of Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi, AIR 1968 SC 1232. [“Birla Mills”] and the English authority is Lord Denning, in his decision in In Re Harper and Others v National Coal Board, [1974] Q.B. 614 [“In Re Harper”].

Birla Mills was a decision on the validity of delegated legislation, and involved the question of whether, and what kind of, guidelines are needed for an act of delegated legislation to be valid. It was heard by a Bench of seven judges, which can be broken down into three major factions: 2 judges held that valid delegation needs policy, and that the impugned enactment did not contain such policy guidelines^[i]; 2 concurred on the point that policy guidelines were necessary but held that, on facts, there was such policy;^[ii] and 3 held that no policy is needed, and hence the enactment was valid.^[iii] Hence, 5 upheld the law and 2 quashed it. If the question of whether policy is needed arose, applying the rule I considered ‘logical’, I would have thought that since four of the seven judges thought that policy is needed, that is the ratio of the case. However, Mr Seervai argues that the decisions of the 2 dissenting judges have to be ignored. Hence, one should only look at the 5 who upheld the law. Since, among these 5, three held that no policy is needed, that should be taken to be the ratio of the case.[iv]

Lord Denning MR takes a very similar stance in In Re Harper. The issue before the Court of Appeal was whether the period of limitation for a claim in negligence began from the date when the claimant was aware of the facts constituting negligence, or from the date on which he became aware of the cause of action being made out in law. The binding House of Lords decision on the issue was Smith (and Dodd) v. Central Asbestos Co. Ltd., [1973] A.C. 518 [“Smith”]. There, the two Law Lords forming the minority had held that the limitation period was to be computed from the date when the claimant became aware of all the material facts. Two of the Law Lords forming the majority held that the limitation period began from the date when the claimant became aware of his cause of action in law. Lord Pearson, the “odd man out” ( per Lord Denning), held that the relevant date was the date on which the claimant became aware of the material facts. However, he disagreed with the minority on what this date was, and held that the date was the same date on which the claimant had also discovered that he had a cause of action in law. In other words, Lord Pearson agreed with two judges on what date the limitation period began from, and with the other two judges as to what the test for determining this date was.

Lord Denning’s solution to this conundrum is best read in his own words-

How then do we stand on the law? We have listened to a most helpful discussion by Mr. McCullough on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that if we can discover the reasoning on which the majority based their decision, then we should accept that as binding upon us. The third proposition is that, if we can discover the reasoning on which the minority base their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that, if we cannot discover the reasoning on which the majority based their decision, we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.

Applying these propositions to the decision in Smith, Lord Denning concluded that since the majority was not agreed on a single reasoning, there was no ratio that could be taken away from the case in terms of the correct reasoning. Hence, he does not rely on Smith as binding precedent and culls out the appropriate test from earlier precedent.

Before concluding, one important difference between Lord Denning’s approach and that adopted by Mr Seervai is to be noted. Lord Denning, in culling out “the reasoning on which the majority based their decision”, appears to require that all the judges of the majority should have agreed on a single line of reasoning. He does not hold that a subsequent Court is bound by the reasoning of a majority of the judges forming the majority (i.e. two judges out of a three judge majority). Applying this stance to Birla, since the majority disagreed on whether guidelines need to be laid down by Parliament, subsequent Courts would not be bound by any of the observations on whether guidelines are needed. This is different from Mr Seervai’s approach, and with due respect to him, seems preferable, for two reasons- first, it does not result in a minority of judges (numerically) laying down binding law for subsequent courts; and secondly, it ameliorates the concern over facts influencing binding legal precedent which I had mentioned earlier (as the basis of my initial view).

[ii] Justice Shah and Justice Vaidialingam.

[iii] Justice Sikri, Justice Hidayatullah and Justice Ramaswamy. Justice Sikri gave a separate opinion, but the basis of his decision was very similar to the other two.

[iv] Although the settled position in India today is that some basic guidelines are needed and that essential legislative functions cannot be delegated: In re Delhi Laws Act, AIR 1951 SC 332, that does not take away from Mr Seervai’s argument on the interpretation of Birla Mills.

Waiting for one’s matter to be called on a Miscellaneous Day usually involves a lot of waiting in crowded courtrooms with boredom and other people’s elbows in one’s ribs for company. Whereas not much can be done about the latter (at least, not in a manner that will attract a certain international convention), the former can be addressed once in a while by listening to arguments in the cases listed prior to one’s own. Mostly they are dull-as-ditchwater property disputes, rent or tax matters, with the monotony broken by the odd matrimonial dispute, death penalty case or Justice Markandeya Katju. Even rarer, there are actually momentous cases involving erudite eminent counsel arguing matters of grave public importance before inquisitive and intelligent judges. When such cases are taken up for hearing, one is instantly hooked.

Sometimes, the outcomes of these cases, even on a miscellaneous day, shifts the tectonic plates under your feet and you realize that the shockwaves from this ponderous pronouncement will be felt in far away places.

This was one such case Sports administrators can now be prosecuted under the Prevention of Corruption Act, 1988. .

Firstly, to clarify, the Supreme Court itself did not actually make such a pronouncement. All it did was refuse to exercise its discretion under Article 136 to take up the matter for consideration and therefore, let the Kerala High Court judgement itself stand.

Secondly, it was the barely noticed Kerala High Court judgement that actually set off the tremors which reached all the way to Delhi. The judgement itself is totally worth a read.

By sheer dumb luck, I was actually in Court No. 8 when counsel for the Kerala Cricket Association office bearers, Uday U Lalit tried his best to convince a skeptical bench comprising Justices VS Sirpurkar and TS Thakur that the Kerala High Court judgment was wrong. Lasting much longer than your average Miscellaneous Day hearing, the duel between Mr. Lalit and the Bench was a fascinating one, not only for what was said, but what was unsaid and implied. Much of it hinged on how Mr. Lalit wanted the Court to view the majority judgment of the Constitution Bench decision in Zee Telefilms v Union of India (2005) 4 SCC 649, and a careful nitpicking of the Kerala High Court judgement that had held KCA office bearers to be “public servants” and therefore liable to be prosecuted under the Prevention of Corruption Act, 1994 for misappropriation of funds.

The Bench was having little of it.

Justice Sirpurkar (presiding), with his perennial smile that is almost, but not quite, a sarcastic sneer, never seemed even close to being convinced by Mr. Lalit’s arguments. When he called the Kerala High Court judgment a “beautifully crafted judgment“, Mr. Lalit’s shoulders seemed to drop and he sensed the mood of the Court and realized the battle was over. As bravely as he was trying to piece together his arguments that were being so carefully and meticulously being picked apart and cast to the winds by Justice Thakur, Mr. Lalit seemed to sense where this was going. The final order, laconic and brief (as it usually is on admission days) captures nothing of the actual drama of the arguments.

The implications though, are clear and stunning. While the majority in Zee Telefilms had held that the Board of Cricket Control in India was not “State” for the purposes of Article 12 of the Constitution of India, and therefore its actions were not subject to judicial review under Article 32. While the BCCI and its lawyers (and a good many constitutional law experts) sighed in relief, what went almost unnoticed was this:

..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.

Like the proverbial side door of the castle left unlocked that resulted in the city’s fall (the source), this little passage left open a small opening in the almost complete immunity that BCCI (and its affiliate associations) seemed to enjoy from any sort of legal scrutiny of their maladministration.

A clever lawyer in Kerala found it, and made a foray. So far, successfully.

The trial has, of course, only just begun, and like with everything else about the Indian criminal justice system, will be long delayed and will involve many appeals until the matter is brought to finality.

That, of course, is irrelevant for the actual implications of this short order of dismissal of an SLP.

Sports administrators in India have had a happy time these last few years raking in the money (ours by the way) with no accountability or even the slightest pretence of competence or awareness of the sports’ fans concern. They have brooked no interference either by the State or by the judiciary all the while hiding behind the “but we are a private body” defence. The latest embarrassment is no surprise, but rather all too typical, and one would have expected that at least some of them would have had the decency to fall on their swords because of this. From the looks of this, they are shameless enough to pretend that nothing’s wrong, it’s all someone else’s fault, and they would like another go at trying to squeeze more money out of fans.

Maybe not all of them will face criminal charges. Maybe not even all of them who face charges will even be convicted.

But I like the idea that from today, they will sleep a little less easy knowing that they are one intrepid lawyer and a complaint away from spending the rest of their lives scurrying around and trying to avoid jail.

UPDATE: 18.04.2011 Just as I predicted, another cricket association comes under the scanner for corruption, relying on the Kerala High Court judgment. Sales of sleeping pills and headache pills to cricket administrators across India rise.

“‘Something is rotten in the State of Denmark’, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates.”

- Justice Markandeya Katju, with characteristic flair, referring to Marcellus’ dialogue witth Horatio in Shakespeare’s Hamlet in Raja Khan Vs. U.P. Sunni Central Waqf Board (26.11.2010)

At yesterday’s hearing in the Chief Court of the Supreme Court of India, relating to directions and follow up in the case of Prakash Singh v Union of India, senior counsel Harish N Salve circulated a note calling upon the Apex Court to call for an inquiry into the nightmarish saga unfolding in Banda. The Court asked him to convert it into an application calling for judicial enquiry into the failure of the criminal justice system that resulted in this atrocity (and I use that word legally) ).

With respect to Mr. Salve and the Bench, they would be better off not wasting their time on this application and reading this judgement of the Supreme Court of India delivered by Justice RM Lodha on 14.01.2011. More specifically, all the answers they seek are found in this one, succinct, illuminating paragraph that I have quoted here in full.

28. … We are constrained to observe that criminal justice system is not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh and Ors. v. Union of India and Ors. (2006) 8 SCC 1. We do not intend to say anything more in this regard since matter is being dealt with separately by a 3-Judge Bench. The investigators hardly have professional orientation; they do not have modern tools. On many occasions impartial investigation suffers because of political interference. The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing. The public prosecutors have their limitations; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain over-burdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years including the appeal provisions. It is high time that immediate and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.

The facts of Choteylal’s case are stark. It’s kidnapping and rape, and just like the Banda case, it probably involves a minor, unlettered and of rural upbringing; and there’s massive insensitivity staring one right in the face. Of course, the only difference is that the Supreme Court has, in 2011, passed its final verdict on a crime committed in, wait for it, 1989. In fact, the Supreme Court took only seven years to dispose off the case, as opposed to the Allahabad High Court which took, wait for it,

Thirteen years.

And then handed out an order with exactly two paragraphs of reasoning acquitting the accused.

The Allahabad High Court has been getting a bad rap these days. With good reason. “Uncle judges”, corrupt judges, more vacancies than appointments to the Bench, a backlog of cases the likes of which no court has seen in the history of the world, and to top it all, handing out judgments like those on Raja Khan and Choteylal.

Anecdotally as well, lawyers and judges recount tales of horror when it comes to the Allahabad High Court. During the bail cancellation hearings of the Satyam scam accused, Justice Dalveer Bhandari recounted how Supreme Court judges were forced to modify the general policy on bail for convicts because of the Allahabad High Court. Whereas the Supreme Court would rarely grant bail to convicts appealing conviction (as opposed to accused for whom bail is the rule and jail the exception), in the 2000s, when judges realized that the Allahabad High Court was yet to decide criminal appeals dating back to the 1980s, they had to grant bail since the High Court’s track record meant that there was little chance of the appeal being heard before the sentence was served, probably even during the life-time of the accused. (something which happened to one of the accused in Choteylal as well!)

As Justic Katju, in Raja Khan laments, this is indeed a steep fall for what was once recognized as one of India’s finest High Courts; once ranked as an equal with the Presidency High Courts of Bombay, Madras and Calcutta (at least two of which have fallen as far, but more on that some other time). Deep introspection and action is needed in Allahabad and Lucknow to remedy this state of affairs, and just as it is with treating any disease, the first step to reform is acceptance of the fact that one is unhealthy and needs treatment in the form of strong medicine.

Except, what we got from the Allahabad High Court was this. A long whine in the guise of an application to expunge remarks. It got the deserved response from Justice Katju.

The Allahabad High Court didn’t get to this position in isolation. It has followed the path of other institutions in UP in systemic and general breakdown. With even Bihar on the path of progress under Nitish Kumar, I guess all that remains is to crown UP with the new title of India’s Heart of Darkness: Abandon Hope, all ye Who Enter Here.*

*Due apologies to both Joseph Conrad and Dante Aleghieri

Legal opinions can be funny animals. There are the straight forward ones, the sneaky ones, some are informative, some wasteful, all depending on the addressee, client (including budget), opposing parties, questions of law and various matters that make legal opinions unfathomable even to their connoisseurs – transactional lawyers. When all these complex matters come together and churn in your gut, red lights go on in your head, you know there are some things that have to be said but you cant say because you are a lawyer. Especially when there isnt anything ‘illegal’ or ‘non-compliant’ but when things smells funny. You take cover and you make noises, squeak but not squeal, do a little hop.

Clients don’t like little squeaks and hops. In a legal opinion, you have to justify noises that you make. One of the wonderful things to the rescue is ‘Obiter dictum’. There is a sea of it, an ocean – blue waters full of little fairies ready to justify the randomest of thoughts and arguments, a lawyer’s damsel in the time of distress. Obiter is that part of a judgment (opinion of a court) that contains what courts actually mention in passing. Picture your mother, dishing out her opinion of your new girlfriend just when she’s about to lock you out of the house (actually, for smelling of rum). This can be useful and important when you can’t find a prior decision to give you an idea of how courts (read mom) would look at a dispute (read girlfriend). To get a flavour of things to come, words mentioned in passing are sometimes all we as lawyers are called upon to make the best of. We twist and turn them over a fire, roast them to a decent brown, and drop them into our opinions.

When legal opinions are cooked up, lawyers are careful to distinguish between ratio decidendi (law on the basis of which courts actually decided a case) and obiter dicta (courts in blah blah mode), thus tempering the seriousness of their conclusions. But sometimes we wonder if courts actually know the difference. There are judges who like to have fun with all parts of their opinions, and often care little about the seriousness of their conclusions. But theoretically, it is imperative that judges get the ratio decidendi right, while the obiter which has no bearing on the matter at hand, can be blah. Judges can blah wrong, blah and blah, blah in peace, all in the off chance that someone someday somewhere will heed their obiter, hail their foresight, alter the law (to suit the blah), and place their names on obscure pedestals in distant law universities. Obiter is a longshot, a lottery ticket to limelight.

For lawyers who yearn entertainment when punished with inconclusive and long-winding legal research, obiter can be an excellent source of entertainment. Obiter can be interesting, random, mind numbing, dumb, philosophical, cynical, religious, patriotic, socialist, stupid and anything else that that you like it to be, you stumble across them everywhere and unlike ratio decidendi, obiter often exceed expectations. Obiter also makes for good conversation. If you want to capture the attention of an attractive lawyer, no better way than to discuss which part of a judgement was funny, and which part disgusting. Lawyers are creepy, but in innocent ways.

But judges? A recent example of entertaining obiters is in this judgment (which some called a ‘historical disquisition’!). I don’t mean to trivialize a gruesome case involving sexual molestation, but this obiter is truly, well -  comedy, unadulterated and unintentional. We recognize judges are extremely well paid in this country, and often have the insatiable urge to create value, but this passage should blow anyone’s mind:

“25. In Google `The original inhabitants of India’, it is mentioned : “A number of earlier anthropologists held the view that the Dravidian peoples together were a distinct race. However, comprehensive genetic studies have proven that this is not the case. The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either Indo-Aryan or Dravidian languages”

26. Thus the generally accepted view now is that the original inhabitantsof India were not the Dravidians but the pre-Dravidians Munda aborigines whose descendants presently live in parts of Chotanagpur (Jharkhand),Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman Islands, the Adivasis in various parts ofIndia (especially in the forests and hills) e.g. Gonds, Santhals, Bhils, etc.

27. It is not necessary for us to go into further details into this issue, but the facts mentioned above certainly lends support to the view that about 92% people living in India are descendants of immigrants (though more research his required).”

8 percent makes sense!

I wonder where the other 8% of our descendants came from, and who is smoking what. Please read all of it, it makes for good conversation and most of all – it’s a hell lot of fun.

A little background first.

Appointment of the Chief Justice of India, unlike the appointment of judges to the Supreme Court of India, is a very transparent process. The senior-most judge on the Bench is, by convention, appointed the Chief Justice of India. Senior-most here means the judge who has been judge at the Supreme Court for the longest. To take the most recent example, when Justice KG Balakrishnan retired in 2010, among the sitting judges of the Supreme Court of India, Justice SH Kapadia had served the longest on the Bench, i.e., about six and a half years from his appointment on 18.12.2003.

This convention itself dates back to the days of the Federal Court of India set up under the Government of India Act, 1935 and is one of those that continues because no one has found a better way. Or rather, the attempts to change the convention have been so controversial that no Government or Chief Justice of India has tried to by pass the same for reasons I’ll explain.

There have been three attempts to bypass the convention or “supersede” judges, where the ruling authority has sought to overlook the senior most judge of the Supreme Court in favour of someone else in appointing the Chief Justice of India. All three attempts have been hugely controversial for different reasons.

The first “supersession” was in 1943 when Justice Patrick Spens was appointed Chief Justice of India in preference to the senior-most judge on the Bench, Justice Srinivasa Varadachariar (then Acting Chief Justice). (It was alleged, and probably not without basis that one of the grounds of supersession was racial, as British judges and lawyers did not want an Indian as the Chief Justice of India. Justice Iyengar promptly retired adding fuel to the fire, that was only perhaps quenched when Justice Harilal J Kania was finally appointed Chief Justice of India, first on the Federal Court and then in the Supreme Court of India).

The second “supersession” involved three judges, the landmark judgement of the Supreme Court of India in Kesavananda Bharati v State of Kerala and the then Prime Minister of India, Mrs. Indira Gandhi. Justice AN Ray was appointed CJI by the then Government overlooking the three seniormost judges of the Supreme Court, including Justice Sikri’s recommendation for the post, Justice JM Shelat. Justice Shelat, and the other two judges, Justices AN Grover and KS Hegde retired in protest.

The motivation of Mrs. Gandhi for this supersession wasn’t hard to find. In the midst of her war with the judiciary, when the Court had struck down key legislation for being unconstitutional, Mrs. Gandhi wanted to assert her supremacy (yes, her supremacy and not the Parliament’s supremacy) over the judiciary and Justice Ray was the one judge who had consistently found the Government’s arguments favourable in such landmark cases. As the former Attorney General of India, CK Daphtary caustically remarked, “The boy who wrote the best essay won the first prize.”

The third, and possibly most infamous supersession, happened during the height of the Emergency, when Mrs. Gandhi was less than appreciative of Justice HR Khanna’s brave dissent in the ADM Jabalpur case. Needless to say, Justice Khanna resigned upon finding that he had overlooked in favour of Justice MH Beg to be appointed the CJI.

It is in these circumstances that a majority of the Bar, Bench and the Government have favoured continuing the convention to avoid unpleasant memories of the above controversies. Whether or not the convention should continue is a different matter altogether, but this is the circumstance in which we find ourselves, and this is what must be remembered in this story (which, if you, the ADD-led youth of India haven’t already forgotten, is about the woman who almost became CJI).

With this convention in place, it is possible to predict, with total accuracy whether or not a given judge of the Supreme Court will become the CJI. All one needs to do is see if on the date of the retirement of the CJI, how many years the given judge has spent. E.g., when the present CJI retires, Justice Altamas Kabir will be the senior-most judge, and when he retires, Justice PS Sathasivam, and after him, Justice RM Lodha, Justice HL Dattu and Justice TS Thakur, in that order. (If rumour and gossip are to be believed, and the noted Supreme Court Senior Advocate, Mr. Rohinton Nariman is appointed judge of the Supreme Court this year, then he will be CJI after Justice Thakur)

In 2000, in the Golden Jubilee year of the Supreme Court of India, three judges were to be appointed to the Supreme Court of India, sworn in by the then CJI, Justice AS Anand. They were, Justice YK Sabharwal, Justice Doraiswamy Raju and Justice Ruma Pal. The date of the swearing in was fixed on 29th of January and observers were quick to note, that barring any unfortunate catastrophe, Justices Ruma Pal and Sabharwal would have the same level of seniority in 2005 when Justice RC Lahoti retires as CJI. In such a case, convention demanded that the judge whose name was higher in the alphabetical order would be considered more senior and in such a case, Justice Ruma Pal would be CJI.

Justice Ruma Pal was (and is still) considered to be one of the finest judges in India and a great choice for elevation to the Supreme Court of India. Almost all lawyers who argued before her came away impressed by her clarity of thought and the speed with which she would grasp the issues at stake. Stern in the courtroom and incisive in her judgements, she commanded, not demanded, the respect of most of the advocates. One could do worse in appreciating her qualities than reading two of her best judgements in the Supreme Court; Pradeep Kumar Biswas v Indian Institute of Chemical Biology and BSNL v Union of India. The first woman Chief Justice of India would have been a great judge in her own right and not just a good woman judge.

Except that didn’t happen of course.

The day of swearing in was advanced by one day in the last minute to ensure that it coincided with the Golden Jubilee day of the Supreme Court of India, and somehow, Justice Ruma Pal did not get the message in time. Whereas Justices Raju and Justice Sabharwal were able to make it to Delhi in time for the swearing in ceremony in the morning, Justice Ruma Pal, based in Kolkata, was only able to make it to Delhi later, and sworn in on the afternoon. As a result, though sworn in on the same day, the fact that Justice Sabharwal was sworn in a few hours before her, meant that she wasn’t the seniormost judge and missed being Chief Justice of India by the narrowest of margins.

It is not exactly clear why Justice Ruma Pal did not receive the communication in time and though some attribute less than honest motives to the then CJI, there’s little to substantiate such rumours. While it wouldn’t have prevented Justice YK Sabharwal from being appointed CJI, it would have reduced his term by about half the length he actually served as CJI.

Since Justice Ruma Pal retired, no woman was elevated to the Supreme Court till Justice Gyan Sudha Misra was appointed in April 2010; a four year gap that does not reflect well on the Supreme Court Collegium. From the appointments so far, no woman is likely to be CJI before 2017 at least (and if rumours of Mr. Nariman’s elevation are correct, at least till 2022).

I don’t know if Justice Ruma Pal feels she “lost” something, but I’m sure that the Supreme Court as an institution did lose out by not having Justice Ruma Pal as the Chief Justice of India.

[Clarification: After I put out this post, it was pointed out to me by some that the delay in swearing in Justice Ruma Pal may not have been the only factor in breaking the "tie" of seniority between Justice Ruma Pal and Justice Sabharwal since Justice Sabharwal served on the Delhi High Court longer than Justice Ruma Pal served on the Calcutta High Court. I don't dispute this possibility but since seniority is counted from the time one has been sworn in, there was no need to "break the tie" at all.]

[ Edited also to correct a previous sentence which said "forenoon" instead of "afternoon". ] ]

At first blush, that seems like a dialogue from yet another Indian remake of a classic Hollywood movie, this time, the Jack Nicholson starrer- ‘A Few Good Men’. However, for better or for worse, the quote is from a recent decision of the Supreme Court of India in Pushpa Vanti v. Union of India. And the decision, while motivated by noble motives, joins a slew of other decisions where the Indian judiciary seems to have stepped far beyond the scope of its traditional judicial function.

The claim before the Court (the opinion has no mention of what the precise nature of the claim was) was concerned with the pittance that widows and family members of army officers were receiving as pensions. This is undoubtedly a valid concern. However, what I take issue with is (1) the Court seeing it fit to address this concern; and (2) the way it went about addressing the concern.

Both these form essential prongs of the argument against aggressive forms of judicial activism. The first of these prongs rests on the principle that under the model of separation of powers, no matter how loosely adopted, there are some things which the judiciary is not competent to adjudicate. This institutional incompetence arises from either concerns over the concentration of power in one wing of the Government, or from the very nature of the judicial function. However, given the legislative lethargy that hinders progressive changes in the law, the first prong of the argument against judicial activism may be taken to have lost some of its strength. However, the same cannot be said about the second.

Before proceeding any further, let me list what the Supreme Court has seen it fit to do in Pushpa Vanti-

(1)   They have directed the Central Government to set up within two months a Commission which shall be called the Armed Forces Grievances Redressal Commission

(2)   They have laid down the functions of this Commission

(3)   They have laid down the composition (including specific individuals) of the Commission, as also the pay scales

(4)   They have established its term, the location of its headquarters, and also that the building “must have sufficient rooms to provide an office for each member of the Commission”. (¶15)

(5)   Having directed the establishment of this Commission, they have referred the claim of Ms. Pushpa Vanti to this Commission.

Even if it is argued that the judiciary ought to take cognizance of such claims, with all due respect, I cannot get myself to see this as an acceptable way of addressing those concerns. This is as far as it can get from the true nature of the judicial function. That is not to deny that the judiciary in the past has passed orders can be considered to have been factually beneficial- Vishakha being a case in point. It also cannot be denied that such orders make for very good headlines. However, neither of these answer the fundamental question of whether these orders are in keeping with the proper exercise of the Court’s judicial function.

Access to justice, the content of justice and the mode of delivery of justice, are inter-connected, but essentially different things. Yes, it is justified to allow reduced formality in approaching courts for the protection of one’s fundamental rights. Indeed, that is what has been done with the concepts of PIL and epistolary jurisdiction. A massive step has already been taken in relation to the content of justice by the incessant expansion of Article 21 of the Indian Constitution, in the face of arguments by the like of Mr. Seervai. However, the ways in which the delivery of justice is being taken over by the judiciary, seriously threatens the very notion of a judicial function. In other words, if Courts have unbridled freedom over access, content and delivery, there is practically nothing that falls outside the scope of the judicial function.

Admittedly, there are cases where some remedy is better than no remedy. But that temporary relief should not be allowed to colour the grave institutional damage that such over-reach results in. And this is not to mention the diversion in focus from addressing real concerns in other areas of governance, by championing the never-ending expansion of the judicial function.