I.                

The reason for writing this piece is the feeling of utter failure to comprehend the cultures of rape that engulf us. Even as the horrors of December 2012 Delhi gang rape continue to haunt public consciousness, the incident of the brutal rape of a five year old child has put our sense and sensibilities to an extraordinary challenge. How to evoke sensibilities and make sense of the images, narratives and news of the horrific rapes hurled on to us by newspapers, visual media and other allied sources, including judicial discourses, political statements and state interventions? How do we diagnose the foundations of our society that becomes instrumental in the production of such depravity and inhumanity that even a child is not spared from the acts of such horrific atrocity? So much so that the sadistic infliction of inexorable pain, with candles and plastic bottles inserted into the private parts, can become a form of decadent human expression?

Another facet of the sense of failure is the question to our own self? Do we write this paper today with such unease because of the gruesomeness of the incident or because the news is taken seriously and appeared on the first page of leading daily newspapers? We ask this as the atrocious rape encounters are spilled, though in smaller fonts, all over in the print as well as visual media after December 2012. Why did we need yet another horrific story to evoke a similar sense of failure of contemplation or the urge to write? Is it the post traumatic incident of institutional insensitivity and indifference, as the police not just attempted to hush up the matter (by offering the parents Rs. 2000) but also violently attacked a woman protesting against the police callousness? It seems that the sense of failure to think about the problem of rape, and for us, as legal academics, from a limited canon of law, prompts us to ask the reverse question framed in Nietzschen terms: how not to think about rape and cultures of rape.

The one thing that we certainly do not want to do in this discussion is to make specific policy recommendations as to how to interpret or change the law relating to rape. Perhaps, a trap too easy and too tempting to fall into especially for those trained in the discipline of law. This consequentialist, policy-oriented turn of the present legal scholarship can at times hamper the proper structural issues of decoding the culture of rape. We are certainly not opposed to policy recommendations in principle. As teachers of law we have had occasions in classrooms as well as in doctrinal scholarship to take that route. However, we need to question the frantic activity of policy recommendations and churning out changes in laws that blinds us to the sensibility that must inform us in the very framing of issues relating to rape, which reduces humanity to mere objects of consumption to be used and then thrown away.

  II.              

 “Two sex maniacs libidinously ravaged a tiny female tot like wild beasts and finished her off. Police after investigation found that the two respondents herein are those two fiends.”                                                                                                                                                                                                                                                                                                                                                 – State of NCT v. Sunil

“The remnants of extensive mangling of the tender body of the child would reflect the possibility of more than one rapist subjecting the child to such beastly ravishment.”

                                                                                                      State of NCT v. Sunil

 “Accused Saleem who offered custard apple to the little girl when they reached the graveyard suddenly turned himself into a demon and made a forcible attempt to ravish her.”

                                                                                                            State of A.P. v. Sheikh Mazhar

“It seems that Manoj Kumar’s father had an inkling of the demon in his son.”

HT, Rapist’s father had disowned him from his property (20th April, 2013)

The discourse of rape emanating from cultures of rape remains entrenched in the dehumanization of the rapist. The TV images show the accused handcuffed, surrounded by cops with cameras desperate to catch a glimpse of what lies beneath the face covered accused. These projections stimulate the imagery of devils/ beasts concealed behind the mask. When the mask comes off- as it did for Ajmal Kasab, another “demon”- the responses are of astonishment at the visible humanness of the demon. The same flesh, same skin and an innocent young human face! Clearly that is not what demons look like. This is not what such “demons” should look like.  And thus starts the project of dehumanization of these visible humans.

The rapist (as a terrorist) is described and projected as a “wild beast”, “a demon”, “a fiend”. Such a description puts the rapist in a class of heinous monsters, a class far removed from the ordinary human beings. This is one way of telling ourselves (the civilized and responsible moral agents) that the doers of such grotesque crimes are not in any manner like ourselves, they are too distant from us. The distancing (through which we constitute our own humanity) can only happen if the representations and descriptions of the rapist are directed to evoke the emotion of disgust in the viewers/ readers. Since, as encapsulated by Martha Nussbaum, “(o)ur disgust creates the boundary: it says, this contamination is and must remain far from our bodies. We might even say…that we call disgust to our aid: by allowing ourselves to see evil people as disgusting, we conveniently distance them from ourselves” (Susan A. Bandies (ed.), The Passions of Law at p. 51).

Evoking disgust for the rapist by dehumanizing him produces an alienation of our human selves from him. It creates a distance between our humanity and his fiendishness and thus prevents us from engaging in a self-scrutiny, of recognizing in ourselves the capacity to be evil. The distancing prevents us from confronting the fact that we are capable of turning into the diabolic evil that we abhor. And thus, induces a forgetfulness of the everyday atrocities that we may be committing (covertly) when we indulge (unconsciously) in our own perversions. Disgust induced distancing from the rapist obliterates all discussions around the normalization of everyday violence of everyday lives that goes unnoticed because we fail to look within as we situate ourselves within an imagined humanity which the rapist lacks. Otherwise, how do we begin to understand the normalization of the apparatuses and structures which legitimize violence against women in the society? When the sexist representations of women- when they are cast into strict gender roles defined by dominant heteronormative structures- go unquestioned by most of us even if such representations constitute the everyday violence (not necessarily physical) of work places, public transport, markets and even the safe bounds of our homes. What can be made of the Criminal Law Amendment Act, 2013 that completely ignored the recommendation of the Verma Committee Report exhorting for criminalization of marital rape? Is it not true that law reforms have failed to question the asymmetrical character of marriage reinforcing an object-like treatment of women and thus continue to legitimize violent structures in the private lives of women? How far then can the attempts at reforms and amendments of laws be taken seriously?

The rape discourse as a discourse of dehumanization of the rapist deepens the cultures of rape that produce emotions that oscillate between un-mindful retributive cries of anger to sheer apathy and indifference. The responses to violence against women in these cultures also swing between rhetorical law reforms that institutionalize retributive anger through aggravated punishments and death penalties, and an attitude of forgetfulness as we change the channel from NDTV news to NDTV Good Times, or for that matter shift our glance from the news of rape at the front page top column to the advertisements that promise us dream lives that we can buy with nothing but money. This point needs further explanation.

 III.            

Slavoj Zizek argues that the imaginary virtual reality, floating around through images of print and visual media, constitutes the reality of the contemporary society. It works so strongly and incessantly that the meanings of virtual reality surface as the reality of the virtual. And if that is so, then how does the reality of the virtual propagate the cultures of rape that we encounter?

Consider some images from the front page of a leading newspaper which reported the rape of 5 year old “Masoom”:

The five year old lies covered in a sheet as she is taken to AIIMS from Swami Dayanand Hospital where she underwent life-saving surgery. Three dolls on the stretcher accompany her as some helpers clear way for the stretcher. A box below lists the brutal horrific injuries that were inflicted on her: bite marks on cheeks, lips and chest, cuts on neck probably from blade like object, 200ml cracked plastic bottle of hair oil and three candles that were taken out of her vagina.

A passport size image of ACP BS Ahlawat slapping Beenu Singh who was protesting against police apathy and laxity.

A half page advertisement of workwear showing a happy couple, dressed in western attire, walking along exuding confidence and in complete equality. Skyscrapers and the modern city life set the background for this joyous and equal public space when men and women are equally successful, rich and safe. Provided they “Go Trendy. Strike Deal. Refresh. Get New Yorked”.

A real estate advertisement of a five bedroom luxury villa. It says: Opulence, Rs. 10.03 Cr. Onwards.

There are some issues that need to be examined here. Whether there exists a relationship, worthy of exploration, between the cultures of rape that thrust upon us an unwanted reality and the cultures of consumerism that we want to be immersed into in order to live our dreams? If yes, then how can that relationship be conceived? What does it say of our vision of progress? When images of reality and images of unreality confront each other what impact does it have on real lives? What is the relationship between the dominant images/ narratives of rape/ rapist with the other virtual images that we confront every day in our lives? What happens, as John Berger puts it, when images of reality confront the images of unreality? How can words that express anguish and agony of the feeble cries of a 5 year old victim be understood when they are juxtaposed with words and images that promise us lives of happiness and equality as we progress, as we prosper?

Juxtaposition of publicity images of products of globalization and their consumers (take for example, the images of workwear wardrobe bringing in happiness and equality in sexes at the workplace; mobile phones and cheap call rates bringing radiance into relationships; clean RO water assuring security from all fatal disease and so on) with the images of horror and agony stimulates a similar distancing as mentioned above. What happens in the images of unreality- the happiness, the dreams, the pleasures- is something that we think would happen to us (provided we gather enough money to acquire these possessions); while what happens in the images of everyday reality- rape, harassment, state apathy, perversions- is something that is far from us and cannot happen to us. Just as the rape discourse distances us from our own perversions (by producing a false distance between our humanity and rapist’s monstrousness), the culture of consumerism distances us from the reality that demands serious deliberation and well thought out political and social action. The publicity images that astound us create for us alternate lives where living in dreams and for dreams becomes our only life.

All the images mentioned above look real (virtual imaginary reality reflected in images cannot be convincing if they do not look as real, if not more, than the real images). But there is clearly a disconnect and an incoherence between the rape/ molestation image and the image of equality in workplace/ public sphere which figures prominently on the same page of the newspaper. While reality decries the position of women in society- as means to an end, as tools that can be used for one’s own interests, as bodies that can be violated because they lack bodily integrity- the virtual images make the reality of the former unrecognizable. The urgency of deliberative action to correct the injustices that surround us (that is evoked by Masoom’s tiny body covered in a white sheet), is diluted as we see our dreams depicted in advertisements that exhort us to consume more if we are to become more equal and more happy. Images of dreams are the required distraction for the sustenance and flourishing of the culture of consumerism that reduces everything to an object of consumption. While on the one hand they yield an ineffective response to violence (Criminal Law Amendment Act, 2013 has been nothing but a knee-jerk reaction, presented as a quick fix solution to rape which has failed to foreground the larger issue of the relationship between sexism that is a part of everyday lives and rape), on the other hand, they cement the attitudes that look at women as objects to be used and consumed like other objects on sale.

What is then required is an urgent emphasis on the cultural patterns of objectification of women especially the ‘culture industry’ which thrives to reduce everything into a consumable commodity. This includes women as well as men. In doing so we inadvertently create paradigms where women and men are not organic individuals who think, love, have dignity and suffer alike but as body-parts to be displayed for market campaigns. Such crass market logic reduces human bodies as the only attribute of being human and that attribute being best used as a consumable commodity. This by no means suggests that one should take a fascist turn against the market forces but certainly makes one re-think the way we are socialized into behaviors and patterns that reduce human beings into human bodies and human bodies into marketable and consumable commodities.

The relationship between cultures of consumption and cultures of rape (that thrive on objectification of women) is direct. The culture of consumption is founded on the ideas of use (of products) and domination (one who has money has the power gets to consume more). The attitude this breeds is that all things are meant for usage and they can be acquired and controlled with money. Then, is it appropriate to ask: Whether Delhi has become the rape capital because it is one of the global cities basking in the glory of consumerism, where status of a person is determined by his/her wealth and ability to acquire and consume? Is it the attitude of consumerism (which also trickles down to those who cannot consume right now because of lack of money, but nevertheless have the desire to consume because consumption defines happiness) that has conceptualized all our relationships and our entire world view? Have women become the targets of this attitude when they are looked at, gazed and used as nothing but interchangeable bodies or as means to an end, rather than ends in themselves? The objectification of women is then not about sexual perversion only; it is about a culture that values money as the only end and turns everything else into an object for consumption.

(The authors are Assistant Professors at Jindal Global Law School of O.P. Jindal Global University)

[The cover photograph is in the public domain and is sourced from the US National Archives and Records Administration]

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.

Naturally this has raised the hackles of many, none more so than the Delhi High Court Bar Association which found no better way to express its outrage and apoplexy than by calling a strike on, what assumes was sheer co-incidence, the day of the World Cup Quarterfinal featuring India and Australia (as others have also noticed) Inspired by their noble example, I have begun a one-man campaign to get the Supreme Court Bar Association to call for a similar strike on, to pick a day at random, oh say, this Wednesday.

My hopes have been raised thanks to this wilfully ignorant and blatantly silly statement issued by those guardians of India’s legal services, the Society of Indian Law Firms and the All India Bar Association. [I wasn't able to find the full statement myself, but the Hindu report linked seems to have more or less the entire statement (as do the other newspaper reports of the same)]

“The legal profession is an integral and important part of our system of administration of justice, so much so that a lawyer is considered as an officer of the court. A lawyer renders service to the court as a vehicle for effective administration of justice. He provides his expertise and assistance to clients as a part of over all service to the court. Can a Service Tax be legally and justifiably levied on services rendered to the court?”

“lawyers in India historically and traditionally have been spearheading initiatives in the field of politics, justice—social and economic, and human rights, etc. Lawyers played a pivotal role in our freedom struggle and lawyers have been Presidents, Prime Ministers and Speakers. Even today lawyers are represented in the Union Council of Ministers and as Leaders of the Opposition. Our Head of State belongs to this profession.”

“by no stretch of imagination it could be said that legal assistance provided by lawyers to their clients would amount to rendering a ‘service’ to warrant imposition of ‘service tax.’ He said “lawyers only assist the court in dispensation of justice and such assistance cannot be described as a service.”

It’s a wonderful example of how to hold an ignorant opinion about pretty much anything really. One needs a ritual invocation bestowing oneself with a false halo of importance or righteousness, a pinch of doublespeak, a dash of disingenuity and topped off with a coating of mendacity, and voila! your statement is all over the newspapers and you get to appear pompous and feel self-important.

First comes the ritual invocation. Leaders of the freedom struggle were lawyers, and therefore all lawyers must be automatically invested with a halo of righteous superiority. One wonders if the freedom fighters gave up ALL their earnings, their freedom and their bodily integrity to ensure that lawyers in the future could whine and throw a tantrum to avoid paying taxes.

It’s also a delicious bit of doublespeak really. On the one hand, the statement waxes eloquent on the many fine qualities of Indian lawyers and in the same breath encourages lawyers to throw every one of those ideals into the ditch by going on a strike; something which the Supreme Court hasheld to be a serious breach of professional ethics and morality.

Of course, while we are on doublespeak, disingenuity shouldn’t be ignored. As any lawyer capable of reading will tell you, the Act only imposes the service tax on legal services provided by individual lawyers to business entities and all legal services provided by law firms. Where the common man figures in all of this is a little hard to fathom, unless, like the present dispensation in New Delhi, the common man is in fact code for “those with enough money to afford law firms”.

Finally, we have mendacity. The enormous lie that lawyers provide no “services” but are just merry little elves trained in the law helping judicially-minded Santa Clauses dole out the Christmas goodies throughout the year.

Please.

The burden of the service tax will not lie on the lawyer in the mofussil dealing almost exclusively with individuals as clients. It will not fall on the lawyer starting out in the profession depending the odd brief sent his way by a generous senior. It won’t affect in the least those genuine professionals who tirelessly turn out for true public causes in fora, big and small, not for the glamour of the spotlight but because it’s the right thing to do.

Nor will the burden fall on the clients of such lawyers.

Anyone who can read can tell that the burden lies exclusively on lawyers whose practice depends on business entities who pay large fees, and of course on such business entities whose legal fees are going to go up by 10.3% from the next financial year.

When the impost of service tax is being passed on, almost exclusively, to balance sheets of India’s leading corporates and other business entities, one wonders why such furious opposition to a tax that will not demand a single extra rupee from the pocket of an individual practicing lawyer?

Are the distinguished legal luminaries of AIBA and SILF incapable of discerning the difference between a direct tax, like the income tax, and an indirect tax, such as the service tax?

Are they worried about loss of business?

Hardly.

I don’t foresee the heads of major companies suddenly calling Dawood Ibrahim or the local thug to settle disputes just because the cost of legal services has gone up by about 10.3%.

Or more pragmatically, are they now worried that there is one more Government department that might, just might, take a closer look at the Supreme Court parking lot and wonder how much tax the owner of that Audi SUV paid last year?

One can understand that there are genuine concerns about the machinery provisions to enforce this tax, especially the requirement to pay the tax as soon as the bill is sent to the client. But surely, that is a matter to be taken up with the Central Board of Excise and Customs to clarify through a circular or a notification to ease these concerns. Some clarifications are also genuinely needed on issues such as service taxes on opinions, filing fees, clerkage, et al.

Yet, these seem to be the least of AIBA’s and SILF’s concerns. As far as they are concerned, practicing lawyers in India have some divine right (because it can’t obviously be a Constitutional Fundamental Right) not to be taxed by the State for the services they provide.

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.

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". ] ]

The facts of the Glanrock Estate v. Tamil Nadu, (the details of which are not necessary for the discussion here) concerned land reform legislation. By virtue of a constitutional amendment, a statute which had been held to violate Article 14 of the Indian Constitution was added to the Ninth Schedule. By such inclusion, the statute was put beyond the scope of judicial scrutiny, subject only to the basic structure challenge. It was this argument that was made by the petitioners- arguing that the amendment, adding a law violative of Article 14 to the Ninth Schedule, went against the basic structure of the Constitution and should be struck down. [This was also challenged as being in violation of the separation of powers under the Indian Constitution. However, this contention was rejected on the basis that there was no such direct assault on the judicial function, and the separation of powers model was in no way affected. This left only the Article 14 challenge standing.] On the face of it, this argument seems persuasive. The law was discriminatory and hence violative of Article 14; Article 14 has been held as being one of the basic features of the Constitution; by virtue of the amendment, the law was being given a new lease of life. These factors taken together made a strong case for the amendment being struck down as violative of the basic structure.inflatable abominable snowman

However, the Court rejected this contention- issuing a very important and, it is submitted, appropriate clarification regarding the scope of the basic structure doctrine. The Court noted that challenges to Constitutional amendments should be treated with far more circumspection than “ordinary law(s) of the land” (¶ 8, Justice Kapadia), going on to express its view on what the function of the basic structure doctrine is. In the words of the Court, “The  doctrine  of  basic structure is brought in as a window to keep the power of  judicial  review  intact  as  abrogation  of  such  a power would result in violation of basic structure” (¶ 8, Justice Kapadia). Thus, possibly influenced by the historical origins of the doctrine, the Court observes that its primary function is to safeguard the judicial review of legislation, and “overarching principle(s) in the Constitution” (¶ 8, Justice Kapadia). What then are these principles? The Court suggests that these are principles which, if changed, would require a large-scale rewriting of the Constitution (¶ 8, Justice Kapadia).

When an impugned  Act  creates  a  classification  without  any rational basis and having no nexus with the objects sought  to  be  achieved,  the  principle  of  equality before law is violated undoubtedly.  Such an Act can be declared to be violative of Article 14.  Such a violation  does  not  require  re-writing  of  the Constitution.  This would be a case of violation of ordinary  principle  of  equality  before  law. Similarly,  “egalitarian  equality”  is  a  much  wider concept.  It is an over-arching principle.

Admittedly, the Court goes on to elaborate a larger view of the principle of equality, suggesting that the amendment is not, in fact, a violation of ‘egalitarian equality’. It also observes that the “essence of the challenge” (¶ 6, Justice Kapadia) was in the context of the right to property, and that this right had been repeatedly diluted and enjoyed far from an exalted status in the Indian Constitutional framework. However, while this may make these observations obiter, they are still relevant, because of the Court’s repeated emphasis that the only function of the basic structure doctrine is “a constitutional limitation against parliamentary autocracy” (¶ 12, Justice Radhakrishnan). The right to equality does form a part of the basic structure, but only in its role as a facet of the rule of law. Thus, when the violation of the right to equality results in a breakdown of the rule of law, or the separation of powers, thus allowing the Parliament unbridled powers over governance and the Constitution, only then will the Court step in and strike down the actions of the Government.

What implications, if any, does this decision have for the future application of the doctrine? It was always accepted that not all fundamental rights form part of the basic structure. However, some rights like the right to equality and the right to life had been recognised as being more fundamental than other fundamental rights. This may have led one to believe that any law/amendment which violates these special rights also violates the basic structure of the Constitution. The Court has rejected this belief, holding that a mere violation does not suffice, unless the violation strikes at the rule of the law, the power of judicial review, or has the trimmings of Parliamentary autocracy. In other words, one may have thought earlier that the decision about whether a said amendment violates the basic structure is arrived at in two steps-

a)      Is the provision a part of the basic structure?

b)      Has the provision been violated?

Now, the Court has replaced (a) with the question- does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review? This change, though in most cases an inconsequential one, may go a long way towards narrowing down the application of the basic structure doctrine. Also, it may also please the critics of the doctrine, who see it as giving too much power to the judiciary as the protector of an undefined and unclear ‘basic structure’ of the Constitution. This is not to deny that ‘rule of law’, ‘judicial review’ and ‘Parliamentary autocracy’ can also be easily expanded. However, the decision, and the conservative stance adopted by the Court [a stance more than amply evidenced by Justice Kapadia’s opening line- “Some doctrines die hard.  That certainly is true of the doctrine of basic structure of the Constitution”], may just provide some fetters on the extent to which these inherently vague limitations on the powers of the Parliament may be interpreted expansively by the judiciary.

I recently learned that when the Universal Declaration of Human Rights [UDHR] was being drafted in the 1940s, UNESCO commissioned a project which asked the world’s best-known philosophers the following question: How is an agreement conceivable among men who come from the four corners of the earth and who belong not only to different cultures and civilisations, but to different spiritual families and antagonistic schools of thought? While the existence of the UDHR might make us believe that these philosophers managed to find some common ground, the sad truth is that the report submitted was ultimately shelved because (surprise!) no agreement could be reached on what ‘common convictions’ and ‘universal values’ the world shared. Gandhi was one of the philosophers consulted by this project.

Even in the 1940s, when the world was obsessed with the emerging ‘rights-discourse’, Gandhi’s contribution is unique because of its emphasis on duties. Gandhi disagreed with the rhetoric of rights – at a national and international level – and much preferred a discourse couched in the language of duties. What is most fascinating is that he went beyond the obvious correlation between human rights and state duties, and emphasised the duties of individuals. In other contexts Gandhi argued that the “Rights of Man” be replaced with a “Charter of Duties” and said that “a duty well performed creates a corresponding right”. Of course, the UDHR is testament to the fact that his suggestions were not popular at that time.

The idea of duties in the international human rights discourse has gained great currency in recent times. Most obvious is the emergence of the norm of the responsibility to protect, which suggests that states may act to prevent gross violations of human rights within the boundaries of other states. Interestingly, even Gandhi’s emphasis on the duties of non-state actors in the context of human rights protection is becoming more relevant. International law is progressively realising the inefficacy of promoting global human rights without regulating the conduct of crucial non-state actors. We hear noises about corporate accountability for rights violations, individual criminal liability for rights violations, the responsibility of armed groups and ‘belligerents’ in times of war, duties of peacekeepers and human rights defenders. Recently adopted regional instruments – such as the African Charter for Human Rights – provide for clearly delineated individual duties. The InterAction Council recently went so far as to suggest a draft ‘Universal Declaration of Human Responsibilities’.

Yes, some of these developments are problematic. Some aim to subvert the central principle of state sovereignty while others raise concerns about a new-age imperialism in international law. It is also possible that the impact of these developments today will be far removed from what Gandhi envisaged in the 1940s. Nevertheless, the interest in this field demonstrates that while Gandhi’s emphasis on the duties of the individual may have been ignored in the 1940s, there is no doubt that it is a ‘hot’ topic in international human rights today. As is true in many spheres of human activity, it is evident that Gandhi understood the stakes and debates in the project of universalising human rights better than most.

First, the problem that ails most sectors in India also ails the mining industry – flagrant violation of laws and standards. Even though several environment and human rights’ protection statutes technically exist on the books, these are rarely enforced or followed – a few examples being the Forest Rights Act, general principles of reasonable compensation for land acquisition, the Environmental Protection Act, etc. In fact, only last month, a bench of the Supreme Court cautioned the central and state governments to strictly enforce laws related to the mining industries. Given that none of these laws are being enforced or followed, there is really no reason to believe that a new law will suddenly be hugely efficacious. It is equally probable that that there will be speedy clearances, but no corresponding transfer in equity. Second, government-owned mining companies themselves have terrible records when it comes to spending money on local community rehabilitation. Just recently it was reported that the government owned mining companies in Chhattisgarh spent less than .5% of their profits on any kind of corporate social responsibility. Third, there is lot wrong with the mining industry in India over and above its obvious violation of the rights of local communities living on the mined lands – a concern this new Bill has not even touched on. The health hazards mine workers are vulnerable to is an oft ignored subject, and there is a need for greater regulation and standard setting in this field. Finally, the environment impacts of surface and underground mining are often un-accounted for. There is a lot of lost soil, land that is improperly and insufficiently reclaimed, and wildlife migration (just recently, the Forest Department asked coal companies for Rs 7.17 crore for a wildlife plan to compensate for the large scale destruction of forest cover due to mining) – all of which impacts the life of local communities just as much as the land-grabbing for mining projects does. Again, the Bill ignores a lot of these concerns.

This new revamping suffers from the same problem that has characterised a lot of recent legislative activity in India – catering to the need for symbolism. The State proposes legislation to show that something is being done about a perceived problem, instead of improving the functioning of laws and measures already on the statute books. In the present case, the need for State action certainly exists. On the one hand, there have been reports of law and human rights violations by mining companies. On the other hand, mining is an almost essential component of India’s energy security strategy, and incentivising private participation in the mining industry is crucial for the State. The wisdom of such reform is, however, questionable and the mining industry could definitely be better regulated through better enforcement of existing law.

So you think you’re too good for the law firm. You’ve turned down offers with a snort of derision and an email, barely hiding your contempt for the corporate law world. The grime and dirt of litigation in the lower courts are way beneath you and you shudder at the thought of being in a classroom again, so teaching’s out of the question. You think you can tell the difference between the doctrine of legitimate expectation and promissory estoppel (better than the Supreme Court for that matter). So the only career option for you is the highest of the high, the most important of the most important-est, the Supreme Court of India itself. Naturally, since you just finished law, you’ve got to start at the lowest level at the highest level… junior to Senior Advocate.

So you join a Senior who actually pays cold hard cash (in the form of tax deducted cheques every month) for your “services”. Your “services”, you will realize very quickly, involve following him around on Miscellaneous Day in the Supreme Court; Monday and Friday every week.

Hah, miscellaneous day, you think. Been there and done that, you tell yourself like an old pro. In fact the sum total of your experience of miscellaneous day has been the naps you took in the visitor’s gallery in the various courtrooms while you interned with another Senior. It was mostly fun too, watching lawyers of all shapes, sizes, accents, stages of hair loss and sense of self importance attempt to convince judges in 2 minutes or less, the need to admit their particular case for further scrutiny. That didn’t seem so hard. Or complicated. This seems like a particularly easy piece of lemon cheesecake with soft icing and a cherry on to… ahem. Very easy. Yes.

On your first Saturday in Delhi you see the Qutb Minar… on your desk. Except it turns out to be the pile of matters for Monday. Prepare notes on everything by tomorrow and be ready with all the facts. By tomo. This is an unusual miscellaneous day right? I mean not every weekend is gone thanks to miscellaneous day, right? The more “experienced” juniors titter among themselves and give each other knowing smiles and just as you’re wondering what intra-office sexual innuendo you’re missing out on, one of them helpfully clarifies that this is every miscellaneous day…. Ever.

As you cry silent tears for your weekends lost, and work your way through the pile of poorly drafted SLPs, you console yourself with the fact that at least, this is “real” lawyering work. At least you’re using legal skills and not just your proficiency at Microsoft Word 2007 ™.

You spend the weekend on carefully crafted and well researched notes. On Sunday evening as you help your boss prepare for Monday, there comes a crushing realization. All your notes are entirely useless. Your boss has his own notes. Handed written with all the citations in his own short hand. You make yourself marginally useful by picking up the cases from the office library for tomorrow.

On the day itself, you feel all important and lawyerly in your lawyer robes, stride confidently into the Supreme Court… and join the long, long queue of lawyers waiting for a photo-identity pass. By the time you fill out the form and wait for your turn to come, you sport the dirtiest look and it shows on your pass. The poor light and low resolution webcam make you look like more like a convicted criminal and less like the appellate court litigator you imagine yourself to be. You stand in line again at the gate and quietly curse the lucky few who managed to get the proximity card before the SCBA’s internecine warfare put a sudden end to the process. You’ve got a mentioning matter in Court 1 and it is 10:29:45 already.

You rush into court 1… and get shoved right out. There’s a solid wall of black blocking your way. Lawyers jammed in tight into the passage leading upto the Bar. To the sane and rational mind, there is no way in. But this is Miscellaneous Day. Sanity and rationality were stopped outside the court for not having proximity cards. You adopt the path of least resistance and most privacy invasive. You start by identifying the tiniest gaps, non-obvious to all but the most discerning eye, and like a particularly skilful octopus, insert yourself into these gaps. Soon, enough of you is trapped between the bodies and gowns, and the natural churning and movements of human bodies trapped in an enclosed space sees you getting spat out somewhere in the direction of the Bar. Mentioning has begun and you barely catch enough breath to mention your matter, and turn around to repeat the process, only this time trying to get out of the court. Before you know it (no, actually it’s like a particularly tortuous eon, but you want to block it out of your mind) you’re in the corridor, all ready and set to begin the Miscellaneous Day Run. 14 matters, 11 courts… all likely to reach at approximately the same time. So it begins.

Two matters down and you’re gasping for breath and losing liquid mass faster than an icecube in the Thar. You run to the cafeteria, toss money in the general direction of the cashier, grab bottles of water and chug them down as you hustle off to Court with renewed vigour to the next matter.

The clerk’s there, outside court. Evidently looking for you. He tells you what you don’t want to hear. Pass-over lena padega. Saab high court gaya. You groan. Not this matter, not this court, not this judge. Once more you contort yourself, intercept others’ sneezes and coughs in the process and finally land up close to the Bar, just as your matter is being called out. “Passover” you gasp, hoping that the judge is too overworked, harassed or just too annoyed to bother you with further questioning.

Or he could just be too overworked, harassed or just too annoyed to indulge the juniors of over paid senior counsel. Shit.

He glares at you, narrows his eyes, and says the one thing you did not want to hear.

“Why?”

(to be continued)