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

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

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

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

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

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

It is here that we find the problem of accountability.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

]]> http://www.criticaltwenties.in/lawthejudiciary/using-question-with-the-wolf-or-enforcing-accountability-from-the-bcci-with-the-law/feed 3 http://www.criticaltwenties.in/lawthejudiciary/clerkships-in-the-indian-supreme-court-some-reflections-and-suggestions http://www.criticaltwenties.in/lawthejudiciary/clerkships-in-the-indian-supreme-court-some-reflections-and-suggestions#comments Tue, 17 Apr 2012 21:58:45 +0000 Sidharth http://www.criticaltwenties.in/?p=4829 In recent years, the Supreme Court of India has gradually scaled up the practice of recruiting recent law graduates to serve as research assistants under the sitting Justices. The notification inviting applications for these ‘Law Clerk-cum-Research Assistant’ positions is usually sent to law colleges in December each year and students in their final year of legal studies (both LL.B. and LL.M. programmes) are eligible to apply for the same. As per the present practice, the Registry of the Supreme Court invites the short-listed applicants for an interaction with a committee consisting of two sitting Justices (usually in April or May) and the chosen applicants are then assigned to work under a sitting Justice. While law clerks usually serve for nearly a year (the cycle running from July to May) there have been instances where some have worked for longer or shorter periods with the consent of their supervising Justice. To take my own example, I served as a law clerk under the then CJI K.G. Balakrishnan for nearly two years, i.e. between July 2008 and May 2010. In this note, I would like to offer a few reflections on my clerkship experience with the hope that they might be of some use to those considering this as a transitory option before making definitive career choices. Towards the end of this note, I have outlined some suggestions that may be considered for streamlining the recruitment of law clerks.

From the perspective of law students, one of the main incentives for applying for clerkships is to boost their chances of pursuing higher studies at prestigious foreign universities. Some others apply with the hope that the clerkship experience will enable them to gain a better understanding of the judicial process before making a foray into litigation. While it is an oversimplification to view this option in purely instrumental terms, the above-stated motivations cannot be dismissed since pursuing a clerkship entails some opportunity costs especially when compared to other lucrative options in the legal services market. Needless to say it is up to the individuals involved to extract the most value from their short period of service. It is undoubtedly a great opportunity to observe the nuances of appellate litigation, decision-making and the institutional structure of our apex court.

At present, the clerkship system is still in a nascent stage and many of the Justices often hesitate to entrust their law clerks with substantive research tasks. While most of the Justices have started recruiting at least one or two law clerks every year, there is a widespread feeling that the roles and responsibilities of the law clerks are not sufficiently clear at the outset. While each Justice has a distinctive style of functioning, it is important for those recruited as law clerks to have a coherent idea of what they are expected to do. Based on my own experience as well as interactions with other law clerks, the main research tasks can be outlined under three categories, namely (i) preparation of briefs on facts and legal questions in freshly instituted matters, (ii) assistance with preparation of orders and judgments and (iii) preparation of speeches, articles and notes on contemporary legal developments.

Those who are familiar with the scheduling of cases in the Supreme Court are well aware of the fact that most of the Justices’ workload is attributable to the preparation required for initial hearings in cases (‘miscellaneous matters’) that are usually listed for Mondays and Fridays every week. On average, each bench has to process nearly 40-50 freshly instituted matters every week. It goes without saying that this is a laborious task that requires immense concentration and attention to detail. A large portion of the miscellaneous matters filed in the Supreme Court are dismissed at this preliminary stage, either without assignment of reasons or by way of short orders. It is only a relatively small portion of these miscellaneous matters which are admitted for a subsequent hearing on merits (‘regular hearing matters’). Even though the decision-making at this stage is made after hearing brief submissions by the lawyers appearing in Court, the Justices usually make up their minds about the merits of the case during the preparation time itself. It is in this context that the law clerks can be relied upon to prepare summaries of the materials on record and short memoranda on the contentious issues. Furthermore, the written submissions made by the parties at this initial stage are usually not very well fleshed out and hence the Justices can profit from able research assistance, especially to verify and search for applicable principles and precedents. While most Special Leave Petitions (filed under Article 136 of the Constitution) are easily dismissed for raising frivolous questions, occasionally the Justices encounter cases that frame important legal questions. It is mostly the cases of the latter variety that are admitted for hearings on merits.

In comparison to freshly instituted matters, the scope for reliance on law clerks is relatively lesser when it comes to the regular hearing matters that are usually listed on Tuesdays, Wednesdays and Thursdays. At this stage, the lawyers appearing on behalf of the interested parties are involved in extensive oral arguments before the respective benches and the same are further supported through written submissions. While this is not the proper forum to comment on the inefficiencies of the current institutional practices pertaining to regular hearing matters, it will suffice to say that Justices usually gather enough material from the submissions made by the parties. In the process of writing substantive judgments, most of our Justices are also conscious about confining the basis of their decisions to the materials submitted during the hearings. Unlike Constitutional Courts in some foreign countries, most judges in our appellate courts are less likely to pursue their own research and rely on materials other than those cited by the lawyers who have argued before them. Given the heightened importance of decision-making at this stage, the involvement of law clerks is likely to be less pronounced. However, some Justices have been known to ask their assistants to prepare first drafts or notes on contentious questions. The involvement of law clerks in the preparation of substantive judgments can prove to be a game changer since they are more likely to consult academic writings as well as precedents from other jurisdictions that might have escaped the attention of those who have argued the case. In this sense, the generational difference between the Justices and their law clerks also corresponds to increasing familiarity with a wider array of resources for legal research. Law clerks are far more likely to be adept at using electronic databases for locating commentaries and precedents. At the same time, the expansion of inputs into judgment-writing can also attract the skepticism of practicing lawyers who might feel shortchanged if judgments travel beyond the submissions and cite materials that the latter are not familiar with. Regardless of such apprehensions, it must be reiterated that while the substantive decision-making is necessarily informed by the accumulated experience of the judges in each bench, the involvement of much younger research assistants in screening documents and submissions has created considerable efficiency-gains vis-à-vis preparation time as well as disposal rates. It would indeed be futile and counterproductive to point to the involvement of law clerks as a cause for concern about the quality and integrity of decision-making by our apex court.

As outlined earlier, law clerks are also frequently asked to prepare speeches or notes when Justices are invited to make presentations at academic conferences and public lectures. Most of these extra-judicial statements tend to dwell on themes such as improving access to justice, bench-bar relations, legal aid and the promotion of dispute-resolution methods such as mediation. The channels for learning are of course not confined to the tasks mentioned above. Apart from the broader understanding of judicial process, the clerkship experience also exposes one to institutional processes such as those related to filing of cases, listing of matters, the perceived impact of bench-composition on decision-making and the different methods of case-management adopted by the respective benches. The multi-bench structure of our Supreme Court has led to the creation of institutional dynamics that are quite distinct from apex courts in other countries which either tend to sit en banc (i.e. all judges sitting together to decide a case) or have fewer panels. Furthermore, there are also numerous opportunities to observe the country’s most prominent lawyers as they present arguments.

However, this note will be incomplete if I only choose to dwell on the nature of tasks assigned to law clerks. As outlined earlier, I will now turn to some suggestions with regard to the recruitment of law clerks in the first place. One of the difficulties faced at present is that the top students from the empanelled law colleges are usually not interested in judicial clerkships since they have direct access to more lucrative career options. This disparity is even more striking when one takes note of the fact that in many foreign countries such as the United States of America, Canada, Australia and South Africa among others, judicial clerkships attract the best law graduates in spite of the availability of lucrative career options. While I understand that it may be difficult to increase the stipends paid to the law clerks (for the 2011 intake the pay is Rs. 25,000 per month) some decisive steps must be taken to convince law students that undergoing a judicial clerkship can yield benefits in the long run. For starters, the notification inviting applications can clearly mention that applicants stand to gain a lot in terms of understanding the judicial process as well as improving their prospects for higher studies and professional growth. We must remember that final year law students at most of the prominent law colleges in the country are being actively pursued by leading companies and law firms, both from India and abroad. In this setting, the Supreme Court should at least make an effort to have its presence felt so as to attract the best law students. Another suggestion is that of broadening the pool of applicants by allowing recent graduates with a few years of work-experience to apply for these positions. Their applications can be accepted on a rolling-basis throughout the year. The same practice is followed by courts in many foreign nations and there is no principled reason for confining the intake to final year students. This can be easily done by uploading a call for applications on the Supreme Court website. It goes without saying that many law graduates who are unsure about their career choices may benefit from clerking in the Supreme Court in the interim. However such an expansion of the applicant pool should not extend to those who have already worked in the chambers of lawyers who regularly appear before the Supreme Court.

Since the Justices are unquestionably overburdened with the large number of freshly instituted matters each week, there is often the risk of inadequate attention being given to the preparation of substantive orders and judgments in matters reserved after regular hearing. While this observation may perhaps not be true for all Justices, there is no doubt that Justices need to be very confident about the abilities of their law clerks before delegating important tasks such as the preparation of drafts for judgments. Needless to say, such tasks require the capacity for prolonged study and rigorous analysis. However, the present method of recruitment of law clerks does not account for these skills. It is better to recruit a few motivated and competent law clerks every year rather than recruiting a large number of applicants who may be indifferent to the tasks assigned to them. While the short-listing of candidates on the basis of their resumes is a necessary filter, it would be better if the candidates are also required to send writing samples (either a term paper or a thematic essay). Questioning on the basis of such writing samples is an effective method for testing the applicant’s familiarity with a particular topic as well as the ability to defend one’s views. Such a process will enable the Committee of Judges to conduct a more meaningful interview and accurately gauge the candidates’ capacity for research and analytical writing.

It would also be useful to hold an orientation session at the beginning of the Supreme Court’s term, i.e. during the first week of July each year. As I mentioned earlier, most of the applicants are clueless about the tasks expected from them. It is only after several weeks that they are able to work out a comfortable equation with their supervisors, often through trial and error. While the specific responsibilities will depend on the individual working style of each Justice, the law clerks should at least be given a broad idea of what to expect. This entails that the applicants must be clearly told that they will be expected to prepare briefs for freshly instituted matters as well as rendering assistance in the preparation of orders and judgments. This can be easily achieved through an interaction-cum-orientation session that can be held a few days after the fresh batch of law clerks has been assigned to the respective Justices’ offices. This session can be conducted either by an official from the Registry or by those who have served as law clerks in the past. It should also be kept in mind that the law clerks mostly work at the residential offices of the Justices and are expected to maintain a high degree of confidentiality about their involvement in pending cases. This means that they usually work in an environment of relative isolation from their immediate peers, a factor that often leads to several drop-outs from the clerkship programme. An orientation session at the beginning of the service-period will ensure that there is healthy collegiality and interaction amongst the entire pool of law clerks.

Unlike their contemporaries who begin as apprentices under established lawyers, law clerks usually do not have to face the unpredictable behaviour of clients and fellow lawyers involved in a case. While handling such uncertainties can be glorified as a rite of passage for a budding litigator, law clerks have to negotiate their way through the labyrinthine bureaucracy of the Court as they interact more closely with the personal staff at the residential offices of the Justices. Once in Court, law clerks often find themselves interacting with the security personnel and the staff at the judges’ library, often with comical consequences. Irrespective of these differences, clerkships offer the opportunity for deep and sustained engagement with cases that are heard on merits. Unlike a legal scholar who usually has to confine his/her analysis to the reading of the eventual judgment, a law clerk gets to see the records from the lower courts, the inputs made by the counsels for the interested parties, the courtroom dynamics and often gets to contribute to the decision-making process. All in all it is an experience that I would highly recommend for those interested in studying our judicial system in the long-run.

This time last year, Kim Jong Il, Muammar Gaddhafi and Hosni Mubarak were the most powerful men in their respective countries.

Anna Hazare was barely known outside the state of Maharashtra; Arvind Kejriwal probably not beyond his immediate family.

Justice Kapadia had just promised to cut down on judicial activism in favour of clearing the massive backlog of cases in the Supreme Court of India.

Most people couldn’t spell or even pronounce Kanimozhi.

How things change in 365 days.

Well ok, except for the last thing.

How do we make sense of these tectonic changes?

That these changes have been tectonic can’t be denied. The Lokpal debate and the 2G and Commonwealth Games scams and the Government’s response in tackling have fundamentally altered the way citizens view the institutions of State. It may not be evident to us now. After all, we still put up the same nonsense at Government offices, still have Parliament being repeatedly made a mockery of by its own legislators and feel the effects of ill thought out and poorly implemented policies. On the surface, nothing’s really changed. Or so it seems. But undeniably, and even the most ostrich of persons would not deny this, something has changed in the national discourse this year.

A simple answer in one word: corruption.

Or even more simply, the giving and taking of bribes by government servants for performing their functions.

It’s a partial answer and a very incomplete one at that. Corruption is about as old as the State. To repeat Chanakya’s oft-repeated quote: “…It is impossible to know when a fish moving in water is drinking it…” Yet, this saying offers us only a partial answer of what government is, and not what it ought to be.

Chanakya’s use of analogy was not just to state the obvious in an interesting manner, but to further a complex and nuanced argument. Corruption is almost a given in an institution such as the government, but that doesn’t mean no efforts should be made to minimize or eradicate it. Rather, Chanakya’s analogy was an attempt to uncover the nature of government itself that led it to corruption.

Government (like a corporation) essentially involves dealing with other people’s property and money. How you raise it, what you use it for and who gets what are the basics of governance and the answers differ on the basis of one’s ideology and the needs of a given time, but no Government can function without doing these two essential things; raising money and spending it.

So much for the “is”.

But Chanakya also answers the “ought”; government ought to mean spending the income wisely for the welfare of the people. For, as Chanakya states repeatedly, only in the welfare of the people lies the welfare of the King (or Government if you prefer). It seems obvious enough, yet only in restating and understanding the “ought” do we get to the heart of why corruption has become the issue it has now.

As citizens, this “ought” is fundamental to why we part with our money to the Government (or perhaps our property for due compensation). The compact between Government and citizen should seem so obvious that it doesn’t need restating but it is a reflection of these times that this particular compact has to be restated. What the Lokpal Bill agitation and the Commonwealth and 2G Scam highlight are the very real threats this compact faces from corruption.

For people in their twenties and thirties, it would seem that this is the first time this has happened so.

Those with longer memories would know that the unearthing of massive corruption scandals is nothing new, nor the jailing of MPs, CMs and ministers. Not even judicial activism to fight corruption.

What’s changed this time is that where perhaps corruption was seen as an aberration to the norms of governance, the brazenness and the scale at which the Commonwealth Games and 2G scams were carried out would suggest that perhaps corruption has, far from being an anomaly in the system (to use a Matrix-ism) is in fact, the system itself. That there is no concept of public welfare anymore, and that the government exists to serve its clients – those who can pay the price and no others.

This loss of faith in government explains the agitation around the Lokpal Bill but also the land acquisition agitation in UP. Where the UP agitation was aimed at one particularly egregious misuse of governmental powers to openly benefit real estate developers at the expense of farm owners, the Lokpal agitation was sparked off mainly because it seemed that far from ensuring that a scam of the scale of the 2G scam or the Commonwealth scam never happened, the Government of the day tried to protect the corrupt through a weak and ineffective institution.

It’s easy to dismiss the “civil society” and Anna Hazare as a bunch of middle class busybodies who’ve been given undue importance thanks to a hyperactive “corporate” media.

It’s also demonstrably false.

The crowds streaming into Jantar Mantar and Ramlila Maidan in the middle of the year were not bused in and promised money and food (as many political rallies are wont to). You couldn’t classify and categorize them all under one neat socio-economic or religious label.
Yet, as if almost on cue, when Anna couldn’t “deliver” on the crowds (read “spectacle”) the media turned on him. Hardly the hallmark of a media driven campaign.

Still, what relevance does all of this have to the events of the past year in the law and the judiciary?

It has, I think, fundamentally changed the contours of the judicial activism debate. If one of the underlying premises of the institutional competence argument (as opposed to constitutional competence, more of which in a separate piece perhaps) is that government is capable of doing some things “better”, and therefore the Courts must not “meddle”, the actions of the government over the last year have called this assumption very much into question. The sorry saga of inaction, incompetence and just plain mendacity on the part of the government that was revealed in not just the mega scams but also in such issues as the right to food litigation, the black money litigation and the tax waivers for the F1 race. In the face of such a sorry state of affairs, the option is between institutional encroachment and complete and utter breakdown of the rule of law.

What has happened is that when the citizen’s faith in the government’s ability to act in the public welfare (as opposed to his or her individual welfare) itself stands questioned, the Court has, on the instance of such citizens stepped in to ensure that government acts in such a manner. In one sense, and this merits much more scrutiny than this post can possibly hope to provide, a very discernible shift is obvious in the manner in which the Supreme Court goes about its activism. No longer is activism about merely issuing writs and directions enforcing rights (howsoever defined, and yes I’m aware there’s nothing “mere” about enforcing rights, but bear with me) but also at ensuring that the government complies with its duties and obligations to the public at large.
Two very different cases, the Bellary Mining ban and the CVC case are possibly the best indicators of this (though a more comprehensive study would also include all the PILs not entertained at the threshold itself but this is not the place for it). The dominant discourse in the decisions is about protecting larger public interest and welfare in the face of State and Central Government failure to do the same. A State Government had failed to check the rampant illegal mining and ecological destruction of Bellary. The Central Government had cynically appointed an officer who faced a criminal charge of corruption as the head of the anti-corruption body. These were not instances of the Government choosing a good or bad course of action – it was a case of complete and total dereliction of duty that could not be justified with anything more than a bland ipse dixit.

In that sense, this year has probably set off a subtle yet significant shift in the Court’s understanding of its own role and the manner in which it articulates its role. Apart from being a defender of rights (fundamental, legal and constitutional) and upholder of the rule of law, it has also adopted the role of protector of the public welfare at large. Not that this is a new legal argument that is being made in Courts or that we are speaking of a new and hitherto unseen aspect of judicial review, but in terms of the Supreme Court’s role in the larger polity this is perhaps a significant (and not a few would say, welcome) shift that could take us down new and interesting paths in the history of the Indian judiciary.

Yet, this is no time for the Court to rest on its laurels (hard won though they may be). Although the battle against delays seems a Sisyphean labour at best, the spectre of large scale judicial corruption has never hung heavier over the judiciary. Though the cases of Soumitra Sen, PD Dinakaran and Nirmal Yadav came to light last year, serious action has only taken place this year.

It is no longer a case of black sheep here and there. There is a flock of dark fleece threatening to taint the whole judiciary. Indeed the illegal land allotment to judges, past and present, in Bangalore has exposed more than a few skeletons in closets. The distressing silence on the part of most of the judges involved has only fuelled further doubts about their integrity. The malaise Justice Markandeya Katju outlined with much anguish earlier this year with reference to Allahabad High Court threatens to engulf the entire upper judiciary if not stopped adequately. For the Court to retain its credibility as the foremost defender of the rule of law in this country, it must, to use a Biblical proverb, “remove the speck in its own eye.”

What does the New Year hold for us lawyers and the judiciary?

Definitely a new Chief Justice of India in September (Justice Altamas Kabir according to seniority). The Vodafone verdict, the Right to Education ruling and perhaps most importantly, the order deciding whether or not Home Minister P Chidambaram should be investigated in the 2G scam. The trial will of course continue in the Patiala House court in Delhi and we’ll all receive breathless reports of the proceedings from over-keen reporters some of whom may even have legal training!

The Lokpal Bill will probably be introduced once again in Parliament in April but no one really believes that the Government genuinely wants to tackle corruption at the highest levels. Parliament’s alleged “supremacy” already a hollow doctrine in Constitutional law, has been stripped of even more legitimacy in the light of today’s events.

As the old Chinese curse goes, we are living in interesting times. Despondence seems to be the national mood, despair a national pre-occupation and disappointment (for cricket fans and Sensex watchers alike) leaving a bitter aftertaste at the end of the year.

With all the bleakness above, perhaps I should end on a positive note.

As it turns out, the Mayans were wrong! The world won’t end in 2012.

Happy New Year to all!

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2. It has been something of an unprecedented year for the Supreme Court of India (pun intended!) with major decisions, important PILs and large scale retirements and appointments of judges. Over at livemint, Nikhil Kanekal takes a look back at the ten most important cases heard or decided by the Supreme Court of India in 2011. The PJ Thomas case finds mention of course, but it is a list more geared to the general reader than to the lawyer. http://www.livemint.com/2011/12/09011809/Supreme-Court-the-balancing-a.html

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3. The inner workings of Indian law firms are suddenly under scrutiny once again as the proposed merger of Fox Mandal and Little & Co. has ended in acrimony. For Fox Mandal, already struggling in the face of some mismanagement and the global economic downturn, this could not have come at a worse time. It is a good time perhaps to re-plug this full length article on Amarchand & Mangaldass & Suresh A Shroff & Co, perhaps India’s most well known and influential law in Forbes Indiaand the sibling rivalry that underpins the firm. http://business.in.com/article/boardroom/indias-biggest-in-law-amarchand-mangaldas/15382/0

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4. The Supreme Court’s monitoring of the implementation of the PDS scheme has made the headlines repeatedly this year, mostly for Governmental failure to tackle the problems adequately( remember the infamous 32 rupees a day affidavit?). The Food Security Bill, seeking to end the spectre of malnutrition and hunger among India’s poorest has been cleared by the Cabinet and will be introduced in the 2011 Winter Session of Parliament itself. It’s not without its critics such as Jean Dreze who’d written some time back about the structural problems with the Bill (as it stood then). http://www.thehindu.com/opinion/lead/article2042980.ece?homepage=true

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5. Insiders know that transfers of High Court judges these days in “public interest” is a polite euphemism for “Too many allegations of corruption, but not enough material to start proceedings.” So when Justice Mohinder Pal of the Punjab and Haryana High Court was transferred in “public interest”, the matter would have passed with a few nudges and winks in the Bar library and quickly forgotten. Except, Indian Express broke this story about the possible link between a controversial order passed by Justice Pal and his transfer. Stunningly, the Chief Justice of Punjab and Haryana High Court, Justice Ranjan Gogoi (a fine and outstanding judge who was destined for the Supreme Court this year but for a serious illness) has gone on record about the exact link between the order and the transfer. All hell naturally broke loose (both in the P&H High Court and the Gujarat High Court) and Animesh Sharma gives us a closer look at these events in Scandal Season”. http://mylaw.net/Article/Scandal_season/.

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2. Dahlia Lithwick takes aim at two controversial provisions of the National Defence Authorization Act as approved by the United States Senate that effectively allows indefinite detention of anyone in the US in military custody. A Presidential veto is likely but the “War on Terror” is once again taking the US down a dark and dangerous road. Read: “Military Police State“. Also, Shiv’s piece echoing some of Lithwick’s concerns on “us” and “them” and the language of terror is here.

3. The very conception of a lawyer in India is impossible without him or her wearing a gown and bands. Yet, the UK Supreme Court is doing away with the mandatory requirement of gowns and the wigs for lawyers appearing before it. In contrast, the Bombay High Court, after a recent incident, now requires litigants also to dress “soberly” and “modestly”. Dhananjaya Mahaptra explores this in “Dress code for litigants? Bombay high court believes so” Personally, I can’t see why the Supreme Court or the High Courts cannot do away with the Black Gown and Black coat requirement during summer months though some High Courts don’t require gowns during the summer months.

4. The Internet is ablaze with outrage over the entertainment industry promoted “Stop Online Piracy Act” or SOPA that threatens to cut off large chunks of the internet in the interests of stopping “piracy”. Naturally, the best take-down of the legislation has been done by supreme satirist Stephen Colbert (that’s pronounced Coal-bear for the uninitiated) in this video.

5….and finally, Parliament does not have the sole prerogative on law making or heated debate descending into name calling and wild personal allegations – apparently senior counsel of the Supreme Court are just as capable of the latter. For a vivid eyewitness account of Ram Jethmalani, Indira Jaising and Gopal Subramanium engaging in verbal duel (or is it a truel?) during a hearing, read “SC Brickbats“

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.

Almost as I write this, another Karnataka-related crisis turns up out of nowhere to torment the BJP.

In this case, Sushma Swaraj couldn’t be more wrong about who’s responsible for the rise of the Reddy Brothers. We have pictorial evidence as well.

(c) Outlook Magazine

The story goes something like this.

Circa 1999, in a moment of empty bravado, Sushma Swaraj decided to challenge Sonia Gandhi in the Lok Sabha elections when the latter contested from the hitherto Congress safe seat, Bellary. While the announcement sounded grand and daring, it slowly dawned on the BJP that they risked humiliation for one of their national leaders by letting her contest elections in what was essentially a Congress family fiefdom. She couldn’t obviously back out from this, so a solution had to be found.

Around the same time, the Reddy Brothers (G. Janardhana Reddy and G. Karunakara Reddy) were looking to enter politics in Karnataka, to help expand their growing iron ore mining business. They had been rebuffed by the Congress already, and the Janata Dal really did not have a significant presence in North Karnataka. So, they went for the next best thing. The BJP.

The Reddy Brothers bankrolled Sushma Swaraj’s 1999 election campaign against Sonia Gandhi. It was a losing cause, but the 50,000 vote margin was actually considered respectable given that it was Bellary, Sushma Swaraj was a nobody in Karnataka, and one of the Gandhi family were standing elections. More importantly, the Reddy Brothers had found a way into State politics in Karnataka and they’ve never looked back since. Nor has the BJP. It has since won every election in Bellary, Lok Sabha and State Assembly.

It was no surprise that when the Reddy Brothers sought to rid themselves of BS Yeddyurappa, they went to the friendliest face in Delhi: Sushma Swaraj.

So why did this “crisis” suddenly crop up in the middle of May, with no apparent trigger?

The “trigger” as it were, was actually pushed sometime back, by the Supreme Court of India. This was in fact a delayed reaction, an attempt to minimize losses and a damage-containment exercise on the part of someone who’s being spoken of the next Prime Ministerial candidate of the BJP.

This “crisis” is just another instance of the truism that in politics, success has many parents, but failure is an orphan.

Contrast this though, with something quite the opposite when Yeddyurappa faced a grave threat to his position. As he was summoned to Delhi, ostensibly to be removed as Karnataka’s CM for the corruption charges levelled at him, Yeddyurappa received staunch support, from what would, to the untrained observer, seem like an unlikely quarter; the heads of the Lingayat mathas (pronounced muTT-HA in the singular) or monasteries who came out expressing total confidence in his leadership. Even when it seemed that the RSS itself had washed its hands off one of its own, the Lingayat mathas came out in full strength to back Yeddyurappa.

The message was clear. And it worked.

It is important to understand that the gesture was more than just a symbolic show of support. It was rather, a show of strength and commitment that could not be taken lightly by the mandarins in Delhi. The reasons why lie in the nature of the Lingayat community and the manner in which they have been courted by Yeddyruppa.

Strictly speaking, Lingayats are not a “caste”. They do not fall under any of the four varnas, and are more properly a sect, started by the 12th century socio-religious reformer, Basaveshwara. Veerashaivism (which is the correct technical name for the set of precepts he preached) emerged in opposition to the caste system and was part of the larger Bhakti movement active in various parts of the country then, challenging the rigid, Brahminical view of Hinduism. Basaveshwara’s teachings sought to impress upon his followers the importance of worshipping one God and the equality of all before the one God. His idea of the one God was the ishtalinga or the linga of one’s choice which everyone was free to wear as a mark of devotion, irrespective of caste or for that matter, religion. Mathas were started by his followers across the length and breadth of India to spread the teachings of Veerashaivism and a lot of them grew into influential bodies in their local communities. In that sense, Lingayats tend to belong to a matha, in somewhat the same sense as Christians can be said to belong to a certain parish or diocese.

Part of Yeddyruppa’s strategy in consolidating the Lingayat vote in North Karnataka has been the consistent courting of the Lingayat mathas. Himself a Lingayat, he has also assiduously kept the Mathas happy with generous grants from the coffers of the State and elsewhere. The flow of money from the State Government to the mathas started when Yeddyurappa, as Finance Minister in the ill-fated coalition with the JD(S) in 2007-08, increased the grants made to the mathas manifold. 130 crore rupees was earmarked for the mutts, from the State Government budget last year itself.

Aha! So Yeddyurappa worked his way up by bribing the swamijis of the mathas!

Not quite.

Mathas are not just centres for religious learning and spiritual education but also the providers of vital social needs in communities forgotten by the State. Mathas run schools, colleges, hospitals and nursing homes in the most backward of areas in North Karanataka and the swamijis wield enormous power and influence in the lives of people, not just as religious or spiritual potentates. The mathas are, in effect, a tool to distribute patronage on behalf of the State.

Such caste/religion based distribution is, of course, hugely problematic, but in the context of South India, not unprecedented. Renowned South Indian historian Burton Stein has shown how rulers of all religious persuasions, from Krishnadevaraya of Vijayanagara to Tipu Sultan of Mysore, routinely donated money to temples and mathas to achieve two goals; firstly to enhance their prestige as rulers who command great wealth, and secondly, to give a boost to the local economy around the temple. (for more details and instances, see Burton Stein’s excellent book on Vijayanagara)

It is important to understand that mathas and temples in South India served many vital secular functions, apart from their religious and spiritual roles, as Burton Stein points out in his work. They were of course, centres of learning and preserving knowledge, but they also functioned as strongholds to keep the treasury in, markets for the exchange of goods over a large area, and as important landlords providing employment, food, and economic security to thousands. Donations to temples were not necessarily in cash, but also included grants of lands that only increased the role of the temple in the local economy. It is not surprising therefore, that the Tirumala Venkateswara Temple in Tirupathi in existence and receiving grants for centuries now, is one of the richest religious bodies in the world.

[An aside: Regulation of the administration of temples by South Indian state Governments (i.e., Kerala, Andhra Pradesh, Tamil Nadu and Karnataka) has been the subject of litigation and challenge in Constitutional courts and an interesting jurisprudence, Constitutional and statutory, has evolved out of the same. It is a fit subject for a lengthy piece in the Law and Judiciary section, but alas, not in this series.]

To conclude the point, BS Yeddyurappa has followed the path that rulers of South Indian states have done over the last few centuries to build up their strength and consolidate their position; donate to the temples and spruce up the local economy. His strategy has also been to tie up the Lingayat mathas in a network of patronage to consolidate the Lingayat vote in North Karnataka. His support among the community, is not just based on pure identity and socio-economic factors, but a combination of the two that have been adroitly exploited to attain the top post in the State.

**********

Bookanakere Siddalingaiah Yeddyurappa has come to the Chief Minister’s post in Karnataka after twenty years of painstaking effort, make no mistake about it. His path has been anything but smooth, but the progress has been steady. Along the way, he’s picked up friends, enemies and frenemies galore.

I remember distinctly, a few days after he was sworn in as Chief Minister in 2008, a family friend and someone with his ear to the ground on political developments, confidently predicted that Yeddyurappa will not last six months in office as Chief Minister. I disagreed, eyeing BJP’s success in the polls and the disarray in which the opposition Congress and JD(S) found themselves in at that moment. We were both partly right and partly wrong. Yeddyruppa has survived, so far, but not without an attempt being made to remove him from office, every three months or so.

While his weaknesses, namely the Reddy Brothers, corruption allegations, a terrible temper and a poor track record of administration are quite evident for all to see, the sources of his strength, as I’ve tried to make clear in this series of posts, have not always been so obvious, at least to those outside Karnataka.

As of now, the momentum is with BS Yeddyurappa, and by extension, the BJP. Election results at every level from Taluk Panchayat upwards have been good for the BJP and from the looks of it, despite himself, BS Yeddyurappa will complete his first term of five years. If the disarray in the Congress ranks continues, expect a second term as well.

What does this mean for national politics? or, why is an ostensibly regional issue finding so much space in the “National Politics” section of Critical Twenties?

Strong regional leaders are the order of the day in India’s bigger States. Yeddyurappa is just one example. To him, one can add J Jayalalithaa, Mamata Bannerjee, Tarun Gogoi, Narendra Modi, Mayawati, Nitish Kumar, Raman Singh, Naveen Patnaik, SS Chouhan, Sheila Dixit, and till recently, the Late YS Rajashekhara Reddy. The only exception to this seems to be in Maharashtra (I’m not sure either way about Ashok Gehlot in Rajasthan.) A different combination of factors have contributed in each of their ascents to power. They are not just leaders of regional parties, but also regional leaders of national parties. Their appeal is non-transferable to any other State. Their success or failure is not determined solely by their relations with Delhi (party High Command or Central Government). In many instances, Delhi’s success depends on their success and support. And not just in the narrow coalition-politics sense. Yeddyurappa is one example of that.

“National politics” (and not just the C20s category!) maybe becoming a bit of a misnomer. We are moving towards a phase in India’s political history when political power at the national level is wielded by those who enjoy the favour of regional satraps, and not the other way around. It is likely that in the next stage in coalition politics, the coalitions are within parties and bottom up, and not just those outside parties and top down, as they are now.

Will it be a good thing or a bad thing?

I could tell you, but my palantir just ran out of battery power, so I guess I’ll have to do what everyone else is going to do:

Wait and see.

Part I | Part II | Part III

BS Yeddyruppa (File Photo from the Hindu)

That makes it the 11th such attempt in the last three years. When it comes to staying in the Chief Minister’s gaddi, he’s got the tenacity of a mongoose and the survival skills of a cockroach. How he manages to do it is a wonder. Fevicol’s ad managers would be well advised to sign him up to promote their product while he adheres to his seat against almost all odds (including his own MLAs and party leadership).

The most recent attempt orchestrated by Karnataka Governor (and devout Congressman) HR Bharadwaj was basically D.O.A. Even if the Central Government had gone ahead and imposed President’s Rule under Article 356 of the Constitution, it would have been shot down quickly by the Supreme Court of India and worse, for the UPA, ensured a two-third majority for the BJP in Karnataka on election day. For a party that seems to be entirely on the brink of collapse or breaking, the Karnataka BJP has managed to win almost every election and by-election at all levels from Zilla Panchayat upwards by comfortable margins. Going by the recent electoral track record, it would have been no surprise if the BJP has played the “attack on the Kannada pride” card and got home with a landslide. Yet, cooler heads prevailed at the Centre and the Governor’s report was politely tossed into the bin.

Yeddyurappa:11 Rest of the World:0.

How does he do it?

He can hardly boast of a squeaky clean image ala Nitish Kumar. He’s not even got political pedigree ala Naveen Patnaik. He’s not even a big enough political player that the bigwigs in Delhi kowtow to. What accounts for his survival as Chief Minister of Karnataka against all odds?

In this short series of posts, I’ll try and explain why in light of the political situation in Karnataka and how it came to be so.

*

Karnataka doesn’t always figure in the news headlines in the “Delhi bubble” that traps our major news channels and think tanks, and which is possibly why you won’t find much by way of analysis or explanation from those sources. Karnataka is often reduced, at best, to Bangalore and Mysore, inevitably followed by a ritual invocation of the IT miracle. Only recently, in a political context, has it figured as BJP’s “gateway to the South”; a BJP slogan uncritically repeated in the mainstream media.

A quick look at the other southern States will tell you how laughably stupid that “analysis” is. In recent Assembly elections in Andhra Pradesh, (in 2009), Tamil Nadu and Kerala (in 2011), accounting for a total of 668 seats, the BJP won exactly 2 seats. It did worse in the 2009 Lok Sabha elections; out of 101 Lok Sabha seats from the other three southern States, the BJP did not win a single one. They don’t have a single ally from the NDA with any significant all-State presence in any of these three States either. Karnataka is therefore, the last post of BJP’s electoral territory and hardly the “gateway”.

Yet, to understand Yeddyruppa’s continued survival one has to grasp how Karnataka, one of the last States to have a non-Congress Government after Independence, has come to be a bastion of the BJP.

For the longest time, Karnataka was Congress territory. Karnataka, like Andhra Pradesh, was a Congress bastion continuously till 1983, and even in the elections immediately after the Emergency in 1977, it was one of the few States to re-elect the Congress in the Assembly elections. By general consensus, this was also in no small measure due to the men who governed Karnataka as Chief Minister with a rare combination of sagacity and wisdom. Kengal Hanumanthaiah, Kadidal Manjappa, S Nijalingappa and Devaraj Urs were giants on the political scene, combining caste arithmetic with fairly progressive land and social reforms.

The only real challenge to the Congress was the Janata Party, which in 1983 became the first non-Congress party to govern the State with Ramakrishna Hegde , its first non-Congress CM.

Over the next twenty years or so, the Congress and the Janata Party (later the Janata Dal) would trade majorities in Karnataka forming the Government with greater or lesser majorities. In the middle of course were some controversial bouts of President’s Rule, one of which led to the famous SR Bommai v Union of India judgment of the Supreme Court of India, which sort of put an end to such things. It was still, essentially, a two horse race, not complicated that much by the periodic splits in the Janata Dal, and less frequently, the Congress. Somewhere in the middle, the Peter Principle applied and HD Deve Gowda wormed his way into the Prime Minister’s post.

It was around the turn of the millennium that a third force started to rise in North Karnataka: the BJP.

The BJP’s start was steady, with 16 seats in the Assembly elections of 1983. It slipped however to 2 in 1985 (following the Rajiv Gandhi wave) and 4 in 1989, but recovered remarkably to 40 in 1994, and 44 in 1999, becoming the second largest party (but by a significant distance) in each instance. It was only in the 2004 elections, the BJP finally confirmed that its position as one of the big players in Karnataka’s polity. It emerged the single largest party with 79 seats (its National Democratic Alliance partner, the Janata Dal (United) had five).

Yet, it could not form the Government. An ostensibly “secular” coalition was formed between the Congress and the Janata Dal (Secular) to keep the BJP out of power, and N. Dharam Singh became Chief Minister of what would become a fractious, hate-hate relationship between the two.

The reasons for the coalition were not hard to find. While on the surface, much was made of the “secular” nature of the coalition, it would beggar belief to think that the two biggest players of Karnataka politics formed a coalition only for the sake of a principle.

One could perhaps take them for their word. The memories of the 2002 Gujarat pogrom were fresh in the mind, and the BJP’s later track record in this front hasn’t exactly been exemplary.

The major concern dominating this particular “alliance” was how to slow down the BJP’s momentum in the State. With the exception of Uttar Pradesh, in any of India’s major states, there is “political space” for only two parties. Smaller parties tend to coalesce around the two biggest parties in a state and one sees the emergence of two broad alliances as in Tamil Nadu and Kerala. The Congress, and more so the JD(S), realized that the rise of the BJP would inevitably push one of them out of the big league in Karnataka. For 20 months this arrangement stood, but ultimately, the mutual hostility and the classic prisoners’ dilemma got the better of the two. After a series of shenanigans for which Karnataka has now become famous for, the collapse of the Dharam Singh Government led to a power-sharing “agreement” between the BJP and the JD(S) where the CM’s post would be shared between HD Kumaraswamy and BS Yeddyurappa for 20 months each.

It was a complete sham.

There was absolutely no reason for the two parties to be in a coalition save for the fact that it was convenient at that moment. The JD(S) was a rapidly weakening force in the State, and the BJP, a growing one. The JD(S) needed the money that comes from being in power to make a decent fist of the next election and the BJP was desperate to have something to show for being the single largest party. Another shotgun wedding ensued. And ended. In a predictable manner.

In the 2008 elections, the BJP played the “betrayal card” to the hilt. The JD(S),was almost universally seen to be the party of the backstabbers, and the Congress was in complete disarray with infighting among its leadership. The BJP managed to form a government on its own, winning 110 seats out of 224, but with the help of 6 Independents, going past the half way mark; it was slender majority (bolstered later by the dubious “Operation Kamala”) and formed the first BJP led Government in the State.

The BJP’s electoral victory in 2008 was no historical accident or numerical freak. It wasn’t won on the basis of one single, hot button issue or a hugely charismatic leader with broad appeal. A survey of the BJP’s assembly election performance in the 80s and 90s leading upto the noughties would show a slow but steady accretion of seats over the years, in both State Assembly and Lok Sabha elections. From being a sub-regional party with something of a base in North Karnataka, it managed to not only sweep North Karnataka, but make significant inroads into Congress bastions in Coastal and Southern Karnataka, especially in cities such as Bangalore, Mysore and Mangalore.

The spread of saffron in Karnataka can be attributed to a curious mix of genuine socio-economic concerns and peculiar religious factors that the BJP (along with the RSS) were able to exploit to come to power in the State.

I’ll elaborate upon this in the next post.

Part I| Part II| Part III

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.