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

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

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

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

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

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

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

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

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

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

The impact of this decision

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

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

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

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

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

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

The Three Orders

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

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

The Interim Applications

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

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

A Bench only For Interim Applications

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

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

Review in Disguise

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

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

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

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

Last week, the Delaware Supreme Court issued, what the New York Times termed as an “unusual rebuke” to Chancellor Strine of the Delaware Court of Chancery, arguably one of the most influential corporate courts anywhere in the world. For decades now, corporate jurisprudence emerging from Delaware has shaped corporate law in the United States and influenced corporate policy and commercial courts across the globe. Last week though, Chancellor Leo Strine, Jr., the first amongst equals on the Chancery Court bench came under heavy fire from the Delaware Supreme Court for using one of his opinions as “a platform from which to propagate individual world views on issues not presented.” In a no-holds-barred attack, the Delaware Supreme Court criticised the Chancellor for abusing the purpose of a judicial opinion by using it to express his ruminations on the proper direction of Delaware law, an act better reserved for “law review articles, the classroom, continuing legal education presentations, and keynote speeches”. While at least one news network attributed the hectoring stricture to the personal differences of opinion between Chief Justice Steele of the Delaware Supreme Court and Chancellor Strine, the move, apart from spotlighting Chancellor Strine’s colorful courtroom persona, raises important issues on the extent to which judges may use judicial dicta to comment on legal policy.

Of the many illustrious judges to have served on Delaware’s famous court, Chancellor Strine justifiably lays claim to being amongst the most visible and recognised chief judge in recent memory. Having started his career as a corporate litigator at Skadden, Arps, Slate, Meagher & Flom, he became Counsel to Delaware Governor Thomas R. Carper, who appointed him to the Chancery Court where he eventually rose to become Vice-Chancellor before rising to the top spot. Known for his sharp wit and sharper analyses, Chancellor Strine lays claim to authoring more than one landmark decision in a relatively short span of time, including the decision IBP v Tyson Foods where he crafted a holistic (read deal-friendly) review standard for determining when undisclosed adverse financial information qualifies as having a deal-breaking material adverse effect. But apart from his meteoric rise, this isn’t the first time Chancellor Strine has expressed his world views in a judicial opinion.  In Cox Communications, another outstanding decision, he attempted to make sense of the two divergent standards frequently invoked for reviewing transactions involving takeovers by controlling shareholders. That digression, in a case which was actually concerned with the appropriate quantum of legal fees to be paid in such deals, now forms the basis for most contemporary discussion on the issue and is regarded as an outstanding contribution to legal doctrine. Notwithstanding the strategic implications of the Supreme Court’s unmitigated diatribe therefore, Chancellor Strine’s reputation as one of America’s foremost corporate minds is firmly secure and deservedly entrenched. And as someone who attends his marquee Mergers and Acquisition class at Harvard, I can attest, that his incisive legal analysis combined with a quirky sense of humour make for an outstanding classroom experience.

But behind the more interesting story of Chancellor Strine lies a less snazzy legal issue of comparative importance. In publicly hauling up the Chancellor of the country’s most celebrated corporate court, the Delaware Supreme Court has sent out a clear message – dicta, even when judicial, is not appreciated. The Supreme Court would much rather have Delaware judges express their personal views in law review pages and classroom presentations, than in their written opinions. As a relative outsider to the American legal world, three thoughts immediately come to mind.

First, the Supreme Court’s advice is testament to the extent to which the law review culture is entrenched in American legal thought and training. As a rule, the best American legal minds appear to write extensively. Academic writing in general and writing by judges in particular, far from being frowned upon, is welcomed as being the apposite place for discussions on legal standards as against judicial opinions, which must express clear, actionable legal rules.

Second, a statement by the Delaware Governor’s official spokesman reiterating his faith in Chancellor Strine was immediately after the Supreme Court’s rebuke. That the Governor should comment on what is essentially an issue of judicial discipline, is an indication of how closely the political class appears to follow the judicial process even in the case of tenured appointees.

Third, the robust and incisive news reporting that followed, indicates an informed and a fearless media, which apart from being accurate, is not hemmed in by fears of being in contempt of arguably two very powerful courts. The day when knowledge of individual judicial predilections, will inform non-legal news analysis, seems a disconcerting distance away in India. But there are important lessons of institutional checks and balances, for our legal system in each of these trends. Lessons, on what a well functioning polity should look like, even when the real issue at hand perhaps stems from little more than a principled difference in opinion.

A new constitution for Nepal seems more distant than ever. After much deliberations among the political parties, the election to the Constituent Assembly (CA) was finally held in April 2008. This heralded a new dawn of optimism among us, which, however was shattered when the CA, mired in deep malaise, was suddenly killed before the deadline set by the Supreme Court. Each political party—the Maoists, NC, CPN-UML and Madhesi Morchas—have presented their alibi for the death of the CA. Amid this, a second election to the CA was also declared for November 22 by  PM Baburam Bhattarai. The  NC and CPN-UML are against a second election to the CA. Both have firmly opposed what they see as an unconstitutional declaration and have raised concerns about the possibility of holding a free and fair election under a Maoist-led government. In this stalemate, consensus among the major political parties might seem like the only sane option. But steps to execute this political consensus will require extra-constitutional measures if notunconstitutional ones.

Interim Constitution

The framers of the Interim Constitution of Nepal faced a deep paradox when they were entrusted with the duty to draft a constitution to effectuate the will of the Nepali people to frame a constitution through a CA. Because of an unclear mandate the drafters were unsure whether to write  only a statute of transition or a comprehensive statute for governance. When it was finally promulgated it received fair share of criticism for being an organic law suitable for a longer-term goal of a stable state rather than a transitional document. This oft-critiqued feature of the Interim Constitution has however proved to be a boon for the nation, preventing the country from sinking into a governance void.

But on part of completing its transitional task, it has become equally doubtful whether the bridge-gap constitution will deliver a final constitution to us. Although the framers of the IC intensely negotiated the issues of inclusiveness, modalities of CA elections, state restructuring and fate of monarchy, they however unequivocally agreed to allow the CA to mirror the role of the legislature-parliament. Cost-saving, efficiency and minimum legitimacy of the legislature-parliament in comparison to t he CA were the primary reasons behind the agreement. The twinning of the roles of the CA and legislature-parliament not only affected the constitution-making process but has left us now with a powerful executive without a parliament to limit it.

Because the drafters of Interim Constitution did not sufficiently debate the twinning of the roles of CA and legislature-parliament, they failed to preempt the demise of the CA and its implications. If only, akin to the South African Interim Constitution, the members had agreed to give more importance to the parliament and allowed it to sit as a Constituent Assembly, and not the other way around, the present scenario would perhaps be different altogether. However there is no point mulling over the mistakes made in the past. The drafters have valid justification though: the mandate as demonstrated by the public will was election to CA and only the CA.  But lessons can be learnt from past mistakes and if the next election is to be held it should be to a parliament, which can have a dual role to sit as the Constituent Assembly for drafting, preparing and adopting a new constitutional text. This might go against the Supreme Court’s judgment, but it can be argued that this parliamentary election is ipso facto (by inevitability) an election to the Constituent Assembly.

Constitutional hurdles

Constitutions can be amended legislatively by acts of parliament and to a limited extent judicially by court interpretations. But constitutional amendments through ordinances are unprecedented. The alternatives floating among political parties—revival of CA, second election to CA, instead an election to parliament, ratification by an elected parliament a constitutional text prepared by constitution drafting commission, adoption by referendum of constitutional text prepared by an expert committee—require invocation of the Interim Constitution’s provisions relating to “power to remove difficulties”. Article 158 reposes the power to remove difficulties “in connection with the implementation of [the] constitution” upon the President who is supposed to act only on the recommendation of the council of ministers.

A similar provision was found in the Constitution of the Kingdom of Nepal and was destructively used by ex-king Gyanendra. In it, however under Article 127, the entire power was vested solely on the king. The Supreme Court had the opportunity to interpret “power to remove difficulties”, when it was exercised by king Gyanendra in the seminal case of Rajeev Parajuli v Royal Commission of Corruption (2006). In the stated case, the establishment of the Royal Commission of Corruption was under challenge and was declared unconstitutional. Speaking for the bench, Justice Min Bahadur Raymajhi observed that the objective and purpose of “power to remove difficulties” under the constitution is only for enabling the implementation of any constitutional provision facing obstacles in application. Further it was held that it can only be exercised within limits prescribed by the constitution and cannot be resorted to for changing the constitutional mechanism altogether.

Thus, any exercise of power under Article 158 of the Interim Constitution by the President and the council of ministers can come under Supreme Court’s scrutiny. It may only clear the Supreme Court’s examination if it emanates from broader political consensus and is supported by larger public will.

(First published in The Kathmandu Post)

]]> http://www.criticaltwenties.in/nationalpolitics/will-to-power/feed 0 http://www.criticaltwenties.in/nationalpolitics/recipe-for-a-tussle-constitution-drafting-in-nepal http://www.criticaltwenties.in/nationalpolitics/recipe-for-a-tussle-constitution-drafting-in-nepal#comments Thu, 22 Mar 2012 08:52:25 +0000 Arghya http://www.criticaltwenties.in/?p=4730 [A guest post by advocate Semanta Dahal arguing against the recent proposal in the Nepalese Constituent Assembly for a separate Constitutional Court purely for constitutional adjudication. Heady times indeed for constitution-drafting!]

(First Published in The Kathmandu Post)

Here we are, less than three months away from the Constituent Assembly’s fast-approaching deadline to draft a new constitution, and we’re left stranded yet again with little idea about the timely delivery of the new constitution.

The question of forms of governance and state restructuring are the major bones of contention among the political parties. But even with other outstanding constitution making issues which were settled by the Dispute Resolution Subcommittee, all-embracing satisfaction is far from reality. This is especially true with regard to the compromise reached to establish a parallel to the existing Supreme Court—another judicial forum called the Constitutional Court—for arbitrating constitutional matters. Apart from a few countable constitutional scholars, all senior members of the Bar, including the President of the Nepal Bar Association, have resented this idea. Even more so, the otherwise taciturn Supreme Court justices have voiced their opinions strongly and have called this compromise a deliberate attempt at decimating the independence of the judiciary.

The agreement to create a Constitutional Court was reached in March last year. For the iconoclastic Maoist leaders, independence of the judiciary doesn’t figure in as an important element of democracy and the rule of law. The Maoists wanted a judiciary accountable to the parliament, and other higher organs of state, and were in favour of a judicial committee within the parliament taking decisions insofar as the interpretation of the constitution was concerned. The rest of the parties, including the Nepali Congress and CPN-UML, felt that this scheme didn’t fit well into the Montesquieu’s tripartite system and thus the Constitutional Court was offered as a viable solution to achieve some semblance of judicial independence.

As per the proposed scheme, the Constitutional Court will comprise of the Chief Justice of Nepal and five other judges, and it will have the constitutional jurisdiction to exposit on constitutional issues and disputes between the central government and the provinces, and between the provincial governments.

Certainly, this is a commendable proposition. A specialised court with judges with constitutional “expertise” is perhaps what the nation requires to resolve serious constitutional disputes. But I don’t agree. Constitutional law is a basic foundational course for law students and a mere post-graduate education in constitutional law is not the only yardstick for measuring a person’s knowledge in constitutional law. Further, there are other problems associated in vesting exclusive jurisdiction to special courts only over constitutional matters. Constitutional law cannot be treated as a hermitically contained body, impervious from the effects of other branches of law. Being the fundamental law of the land, constitutional law is in constant interaction with other law streams. For instance, right to fair trial in a criminal proceeding is a constitutional law question, rather than a criminal law question.

The constitution-makers ingeniously copied the idea of a Constitutional Court primarily from the much touted South African constitution and from the legal tradition of countries following the codified civil law system. But even South Africa cannot be categorised into a pure common law country; it is a hybrid legal system where there is a confluence between the Romanic-Dutch system and English common law principles. Although in our nation, a modern legal system was initially code-based, it has now fully evolved into a common law country and stare decisis (a legal principle by which judges are obliged to respect the precedents established by prior decisions) is a major doctrine influencing our court’s decisions. So is it a good idea to create a separate and special Constitutional Court in country like ours which has now firmly adopted the common law system?

My answer will be negative because all common law jurisdictions worldwide have only the Supreme Court as the highest judicial authority to interpret the constitution. Even in the South African case, a bill is tabled before parliament to make amendments to its constitution to enlarge the scope of the jurisdiction of its Constitutional Court. This is because there is no neat division between constitutional and other legal issues and lawyers will always find a constitutional issue inextricably interlinked with banking, criminal, company or even revenue law disputes. Thus a litigant may find himself or herself in a game of tennis played between the Supreme Court and the Constitutional Court.

The agreement to create a Constitutional Court was reached with blithe disregard to the views of the senior Bar leaders and Supreme Court justices and must be reviewed. Our Supreme Court has never been negligent when entrusted with the duty to interpret the constitution, although the decisions may have been controversial because leading constitutional cases have strong political overtones.

Two parallel courts at an apex level can convolute the country’s legal system. Hence the more amicable solution the constitution makers can adopt to reform the nation’s constitutional jurisprudence is a bench of judges within the Supreme Court, who can sit in a group, or larger benches to hear the issues which emanate substantially from the constitutional text and require interpretation. This will avoid jurisdictional overlapping and a consequential turf tussle between the Supreme Court and the Constitutional Court.

[Semanta tweets @the3rdbranch and can be contacted at the3rdbranch@gmail.com]

[Image Credit: Samsujata under the Creative Commons CC-BY-3.0 License]

]]> http://www.criticaltwenties.in/nationalpolitics/recipe-for-a-tussle-constitution-drafting-in-nepal/feed 1 http://www.criticaltwenties.in/corporatelawandbusiness/blame-the-indian-government-a-response http://www.criticaltwenties.in/corporatelawandbusiness/blame-the-indian-government-a-response#comments Sat, 17 Mar 2012 12:15:14 +0000 Arghya http://www.criticaltwenties.in/?p=4710 [A guest post by Prateek Andharia in response to Arghya and Umakanth]

This is in response to Arghya’s previous post, indicating the various angles to the Bhopal-Dow-Olympics controversy. While I believe that in reality, whether Dow sponsors the “greenest Olympics yet” or not is hardly an issue for genuine legal debate/discussion, it is nevertheless one that possesses unique moral dimensions, highlighted by various insightful comments on the original post. To truly comprehend the issue at hand, we must divorce the legal from the moral in this matter.

Dow, as indeed British Prime Minister David Cameron too, has more than adequate grounds in law, as highlighted by this response to the original post by V. Umakanth, to defend itself from the taint of being involved with the Bhopal disaster (Wasn’t the owner when the disaster happened, full & final settlement by the State, etc.). Nevertheless, there is an aspect of the settlement and the law laid down by the Court subsequently on the settlement which too few people seem aware of, or which too many people choose to ignore. The Court, for two reasons, 1) anticipating future variance in the actual claims or disbursements and 2) to “cure” the defects arising out of an apparent violation of the principles of justice (that the principles of natural justice had been violated had already been declared by a Constitution Bench in Charan Lal Sahu’s case 1990 (1) SCC 613), held that any deficiency in the settlement fund was to be made up by the Union of India.

Justice Venkatchaliah, in his leading judgment for the Constitution Bench sitting on Review, declared, in 1991 (4) SCC 584 at para. 198, that:

“After a careful thought, it appears to us that while it may not be wise or proper to deprive the victims of the benefit of the settlement, it is, however, necessary to ensure that in the-perhaps unlikely event of the settlement-fund being found inadequate to meet the compensation determined in respect of all the present claimants, those persons who may have their claims determined after the fund is exhausted are not left to fend for themselves. But, such a contingency may not arise having regard to the size of the settlement-fund. If it should arise, the reasonable way to protect the interests of the victims is to hold that the Union of India, as a welfare State and in the circumstances in which the settlement was made, should not be found wanting in making good the deficiency, if any. We hold and declare accordingly.” [Emphasis supplied]

This aspect of the Court’s decision is especially important given that most of the ire of civil society and the victims has been directed at the Company (first UCC and now Dow), with a mere passing admonishment of the Government. The fact of the matter, as far as the law is concerned, is that any deficiency of funds, be it on account of the injured, the dead or environmental damage (this last, a head of expense completely ignored), is to be paid by the Government. When we talk of the civil curative petition pending before a Constitution Bench, the State is arguing there, not for the victims but for itself – for relieving itself of the liability to pay and to pass on this liability to Dow Chemicals. Needless to say, the claim is on shaky ground, given the stringent standards required for the SC to reconsider its reviewed decisions (on that aspect, interested readers may see this) and inordinate delay on the part of the Government. If the victims are not getting their due, it is because of the State preferring to spend its money on the Commonwealth Games and not because of some big, bad corporate wolf running away from liability. Therefore, the legal issue of liability begins and ends with the State – any re-examination on the liability question will be done soon enough, by the apex Court.

As for the moral issue of whether or not Dow should be allowed to sponsor the games – well, I’m sure most agree that Dow’s relationship to the Bhopal tragedy is unique, and while legally distant, in terms of perception it is seen as the new avatar of the corporate baddie, whether or not it likes it. As has been pointed out, it is profiting from the purchase of UCC, owing to the product line as well as (believe it or not) goodwill, and consequently cannot choose to erase, unilaterally, the perception of it as the adoptive father of a delinquent corporate. But the solution to the problem is hardly a boycott of the Games, that really would be tantamount to cutting off the nose to spite the face – a black armband or boycott of opening ceremony would be far more reasonable as well as enduringly visible.

The Bhopal saga is indeed tragic, but the answer to the wrongs committed is hardly blaming of the corporate entity, an introspection of our own Government’s role is indeed far more apposite.

]]> http://www.criticaltwenties.in/corporatelawandbusiness/blame-the-indian-government-a-response/feed 3 http://www.criticaltwenties.in/lawthejudiciary/turning-the-tide http://www.criticaltwenties.in/lawthejudiciary/turning-the-tide#comments Mon, 12 Sep 2011 05:20:40 +0000 Alok http://www.criticaltwenties.in/?p=3767

I must have presented quite a sight.

Running full tilt past through the gates, past the barriers, the lawns and finally up the stairs towards the Chief Justice’s Court in the Supreme Court. Wearing my black robes, black coat and lawyer’s bands. Sweating profusely, even in the milder heat of March, huffing, puffing and gasping as my legs and lungs protested at the sudden exertion.

It wasn’t even because I was late for a hearing. It was past 10:30 in the morning, but hearings wouldn’t begin for a while because a judgment was to be delivered first thing in the morning. It wasn’t just a judgment, it was the judgment. A most anticipated and eagerly awaited judgment.

The CVC case.

********

2011 will probably go down in the history books as the year of the mega scams. Or more precisely, the year when the mega scams of Governments, State and Centre came to light and a pitched battle was fought over the future of governance in India.

Yet, Anna Hazare, the Lok Pal and fasts-unto-death were still a month away on that warm day in March

What had gripped the nation was the appointment saga of PJ Thomas as the Chief Vigilance Commissioner by the Government, overriding the objections of the Leader of Opposition on the appointment panel and ignoring the pending chargesheet in the Palmolein Case.

As the skeletons from Thomas’ cupboard started falling out, the Government was in a bind. Should it accept responsibility, annul the appointment and admit a mistake? Or brazen it out in the hope that it will all die down quickly and no one will notice that the head of a Government anti-corruption agency is charged with having aided and abetted corruption.

If you know a thing or two about Governments, you will know which course they took.

Of course the appointment was challenged in the Supreme Court. That relentless crusader/charger-at-windmills — sometimes both on the same day — Prashant Bhushan invoked Article 32 and challenged the appointment in the Supreme Court.

The legal case against Thomas was cut and dried. The CVC was created to tackle corruption. To appoint a man facing corruption charges flew in the face of 150 years of administrative law laid down repeatedly by Courts. Any lingering doubts about the illegality of the appointment would be removed on a plain reading of the Vineet Narain judgment. The Government’s case was about as airtight as a colander.

And yet, and yet.

So many times before, the Supreme Court, when given this opportunity to strike a firm blow for citizen’s rights and against governmental corruption had faltered. Most notorious perhaps were the ADM Jabalpur and the PV Narasimha Rao cases. Of more recent vintage, the Lalu Prasad Yadav case.

Recent history didn’t bode well for this case either.

Prashant Bhushan was still facing contempt charges for having accused Justice Kapadia (as he then was) of “financial corruption”, though he has since attested to Kapadia’s integrity and accepted that the accusation was incorrect. They probably didn’t exchange very cordial New Year’s Greetings.

Kapadia himself had made his skepticism of PILs loud and clear. Costs had been imposed ruthlessly, and intolerance for roving PILs grew.

What would happen to this PIL when Bhushan was arguing before the Chief?

The legal case was crystal clear, but would the Supreme Court interfere all the same?

*********

We got the answer that 3rd of March, 2011.

I thought I had missed the judgment, but when I walked in, the Chief was still reading out the main arguments. Then he discussed the cases cited. The tension rose in the courtroom. He was drawing the distinction between “judicial review” and “merit review”.

The Vineet Narain case. The facts against Thomas.

Then comes the kicker we’re all waiting for.

“..the institution is more important than individuals…”

Oh yes! No wait… wait a second.

“For the above reasons, it is declared that the recommendation made by the HPC on 3rd September, 2010 is non-est in law.” (a pause and an aside) “that is void and non existent in the eyes of law”.

Oh Hell yeah! Kapadia’s put this one in the stands!

There’s a sigh of relief that goes around the courtroom. A senior counsel shakes his head in admiration. “Fantastic judgment” he mutters.

He’s setting out guidelines now, but the main deed’s been done.

I can distinctly remember feeling euphoric as I walked out of the Chief’s Court that day.

****

It is easy to be cynical when it comes to corruption. The range of responses runs from “if I don’t do it, someone will” to “Nothing happens without corruption in India” – all encompassing cop outs for personal non-action.

Let’s be clear about this: the institutional nature of corruption notwithstanding, there is always scope for individual action. Ultimately, it is a matter of choice. One chooses to take the bribe. One chooses to offer a bribe. One chooses to look away instead of acting against either bribe giver or taker.

When someone claims “they had no choice”, what they mean to say is, “I don’t want to face the consequences of not giving a bribe.”

It is what Prime Minister Manmohan Singh means when he says “coalition compulsions”.

History will judge PM Singh much more harshly in light of Kapadia’s judgment.

The underlying premise of Kapadia’s judgment is clear; it is no use calling yourself “clean” or “honest” if you are unable or unwilling to defend an institution from corruption. A man accused of (even if ultimately found innocent of) corruption will have neither the credibility nor the authority to function as the head of anti-corruption body. Likewise, Kapadia also seems to be saying (though obviously not in so many words, but the import is clear), anyone who claims to be personally honest is not fit to hold a position of authority or power within an institution if he is not able to stop corruption therein.

Personal action against corruption comes with its consequences. Not all of them benign. From conscientious officers whose lives and careers are shredded by their superiors for not looking away to the RTI activists who are routinely murdered for asking inconvenient questions, fighting corruption is a dangerous affair.

A high Constitutional functionary is not entirely immune to consequences either. It is hard to imagine Justice Kapadia having won too many admirers within the Government for his strong and uncompromising stand against corruption. A post-judicial appointment to a plum and prestigious position, the pot-of-gold at the end of the Supreme Court rainbow for many judges, is unlikely to be offered to him by the ruling dispensation.

The choice before Kapadia was clear, just as it was to Manmohan Singh. Kapadia made his choice. So did Manmohan Singh.

History will judge one far more kindly than it will the other.

]]> http://www.criticaltwenties.in/lawthejudiciary/turning-the-tide/feed 5 http://www.criticaltwenties.in/nationalpolitics/in-praise-of-parliament http://www.criticaltwenties.in/nationalpolitics/in-praise-of-parliament#comments Thu, 18 Aug 2011 18:22:54 +0000 Arghya http://www.criticaltwenties.in/?p=3710 [I have always been a fan of The Guardian’s ‘In Praise of...’ column on its editorial page. This is a personal attempt  inspired by it]

At a time when it has become the norm in civil society, large sections of the media and the judiciary to criticise Parliament and politicians, it was refreshing to see Parliament serve a strong reminder to the nation as to what it is capable of. The impeachment motion against Justice Soumitra Sen of the Calcutta High Court had all the makings of a dramatic spectacle— the dramatis personae- a judge accused of corruption being brought to ‘the bar’ of the Rajya Sabha for the first time in its history, the legislators determined to mete out justice, amongst them several legal eagles with sharp minds and sharper oratory; the setting- the hallowed halls of Parliament, the cornerstone of Indian democracy, the context- in the midst of unprecedented popular protests against corruption in governance, challenging the legitimacy of Parliament itself.

In such heady and tumultuous circumstances, witnessing the equanimity with which the MPs of the Rajya Sabha conducted themselves during the impeachment proceedings was heartening. There was no playing to the galleries, no hyperbole, little superfluity- instead, the speeches arguing both for and against the impeachment were measured, the scrutiny of the legal points, rigorous, the assessment of the Justice’s character, balanced, the reactions to his impassioned plea of innocence, honest, and the humour, refreshing. At its very root, the debate was essentially human—a coming together of divergent points of view that sounded very much like what the average Indian on the street would have said regarding the consequences that ought to be faced by a judge of a High Court who had been accused and twice found guilty of corruption.

This was especially creditable given the setting and the circumstances. To be sure, there was nothing ordinary about a judge being brought into Parliament, eloquently and passionately pleading his innocence, claiming he was being made a sacrificial lamb to protect a higher judiciary that was rotten at the core. In fact with allegations flowing thick and fast against a former Chief Justice and other judges, Parliament would have been very much out of its comfort zone, in the awkward and unfamiliar position of having to form an opinion and pass judgment on the higher judiciary, an institution, that has of late, assumed a halo of immunity. Equally there was nothing ordinary about the protests a few kilometres away outside Tihar Jail, where one man had captured the popular imagination by challenging the supremacy of Parliament itself. Parliament could scarcely have risen to the occasion better and served a more fitting riposte to its detractors than by discharging its constitutional obligation of impeachment wisely and responsibly, in a manner that would have made both the drafters of the Constitution, and the people of India proud.

Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both. [emphasis supplied]

The provision cannot be simpler, or clearer in what it renders an offence. The membership of a terrorist gang or organisation (as defined in the act) is all that is needed for the purposes of section 3(5). In a disturbing exercise of judicial overreach, the Indian Supreme Court in Arup Bhuyan v. State of Assam, has seen it fit to toy with this clear expression of the Parliamentary intent.

I do not wish to enter into a debate on the moral or ethical validity of the TADA; I take issue solely with what the Court has done, and how it has gone about doing it. First, what has been done is that the words ‘who personally resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence’ have been added to the provision. Three possible explanations for this apparent exercise of legislative power emerge from the brief judgement-

(a)    Confessions are unreliable since “under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture”. However, under section 15 of the TADA, confessions made to the police are admissible. Hence, the conviction under the TADA for being a member of the ULFA, based solely on the confession, is based on shaky foundations.

(b)   A decision of the US Supreme Court in Elfbrandt v. Russell (1966), which the same Bench had approved a month earlier in State of Kerala v. Raneef as being authority for the proposition that a person cannot be held guilty by association.

(c)    The provision violates Articles 19 and 21 of the Indian Constitution.

Let us consider each of these in turn.

As to the inadmissibility of confessions, the Court is absolutely right as to the possible infirmities confessions can suffer from. However, once that provision has been held to be constitutionally valid, as it has, suspicions about it cannot besmirch another provision of the same Act. What may have been open was to argue that the evidence was insufficient to conclude that the accused was the member of the terrorist organisation. However, that would require a detailed examination of the evidence, which the Court chooses not to engage in. It instead prefers to focus on section 3(5) of the Act, proceeding on the assumption that the accused is a member of the organisation.

As to the decision of the US Supreme Court, while much may be said for not proving guilt by association, if the Parliament in its (deemed) wisdom has chosen to depart from that principle, there is precious little the judiciary can do about it. The reference to the earlier decision in Raneef is also misleading, since that was an appeal from a rejected bail petition, where the learned judge had observed, “at this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations”. That certainly is insufficient to constitute an approval of the US doctrine in the Indian context, especially when it flies in the face of the express statutory language.

Finally, the only potent arrow in the quiver is the challenge to the constitutionality of the provision. The Court chooses not to hold the provision unconstitutional, but to use to potential unconstitutionality to ‘read down’ the provision. For starters, adding a clause to a provision which is at odds with the clear Parliamentary intent cannot be called ‘reading down’ in any sense of the term. However, even if it can (since precedent may be cited of similar instances of reading down), there must be an examination of what the infirmity with the provision is. Unfortunately, the Court contents itself with saying, “In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”. This statement does little more than identify what the applicable provisions of the Constitution are. We are left in the dark as to whether the provision fails on grounds of ‘reasonableness’ under Article 19, which clause of Article 19 it breaches, why it is not saved by the ‘established by law’ clause of Article 21, and similar questions.

Technically, it may be incorrect to refer to this decision as an exercise of judicial activism, since it can be justified as an exercise of judicial review. However, what is alarming is the nonchalance with which clear expressions of legislative intent are ignored, which cannot augur well for a balanced separation of powers between the institutions of governance.

Courting Controversy

The Court’s order on rotting foodgrains presents the latest in a series of instances when the Supreme Court has waded into raging contemporary controversies. While in this post I will not comment on this trend generally, intervention in this current instance when the Court ‘ordered’ that the government distribute foodgrains to the poor, is illegitimate, detrimental to the reputation of the Court and brings into question the competence of the Court in pronouncing on such questions.

Illegitimacy

First, the question of what should be done with the rotting foodgrains is clearly not a legal question. While the Court has read in a fundamental right to food in to the right to life under Article 21, this does not imply a right to the foodgrains rotting in FCI godowns. On the contrary, this expresses the constitutional mandate that there is an obligation on the state to ensure that no Indian citizen goes hungry. How the state chooses to fulfil this obligation is outside the remit of the courts. It is a policy question, since it has budgetary ramifications, decisions involving a number of ministries, and an issue of prioritisation of goals which the government, being the elected representatives of the people, can legitimately take a call on. The Court pronouncing on a policy question is contrary to a whole host of precedents of the Supreme Court itself, besides being clearly contrary to common sense.

This is however not to suggest that the Court should have no role to play in this matter at all. The Court is itself under a constitutional obligation to ensure that the other organs of government, i.e. the legislature and the executive fulfil their respective constitutional obligations. Since intuitively, rotting foodgrains could provide a channel to fulfil the government’s constitutional obligation with respect to the right to food, the Court certainly can legitimately ask the question as to why such steps to distribute these foodgrains are not being taken. However it cannot order such a move, as it had purported to do, since that would be tantamount to policy formulation itself, which would be illegitimate for the Court to do, being an unelected, unrepresentative and relatively unaccountable institution.

Lack of Competence

Second, the Court is incompetent to pass such an order. Contrary to the common perception prevalent in large sections of media coverage of this issue, distribution of rotting foodgrains is not an open-and-shut case. As the Prime Minister pointed out, this is a multi-faceted problem which involves providing the right incentives for farmers to produce. In addition, there are budgetary implications of distributing such foodgrains, the impact of such distribution on markets and the channels through which such distribution is to be effected. These are necessary questions which must be taken into account before any such policy measure is effectuated. The Court, being an adjudicatory institution, with neither information, nor expertise in food grain distribution is not competent to answer these questions in any satisfactory manner. In addition, there is the thorny principled question of who among the poor should be entitled to the rotting foodgrains? Should it be poor who live near the godowns? Or should it be the poorest of the poor? Or should it happen on a first-come-first-served basis? Isn’t there a question of justice involved regarding criteria by which people should be entitled to the food? I fail to see as to how the Court can pass a blanket order to distribute such foodgrains, saying it’s better that that they get distributed than they get wasted, without enumerating the principles on which such distribution is to take place. Ambiguity in this regard, is a pointer perhaps to the Court’s lack of information and expertise in this matter.

Detrimental to the Reputation of the Judiciary

This order, and other such similar orders, certainly have great symbolic value and earn the Court some popular brownie points. It expresses a public sentiment powerfully and the media hails the Court as a caring institution, responsive to the needs of the people. However in the long run, I believe, orders such as these, which the Court cannot legitimately and competently pronounce, and which will be observed by the government only in their breach, will be damaging to the reputation of the judiciary. This is because, given the nature of these orders, their speedy implementation will be excessively onerous. To ensure their implementation, the Court can either resign itself to the fact that the government will attempt in good faith to follow its directions, or adopt a course of supervisory jurisdiction by which it continues to monitor the enforcement of its orders. While the latter course is certainly an option, at a time when the Court exercises such jurisdiction in a number of matters- forest rights being the classic example, which has been litigated for 14 years before the Court, taking on an additional burden is a questionable strategy. Given its existing workload and backlog, fighting the government’s battle may not be worth the court’s while. If this is not done however, the orders may well not be complied with or result in compromises with the government as happened in this case. The Court then risks being transformed into an institution whose intervention is public controversies is well-meaning and sympathetic but ultimately fruitless. This, needless to say, will raise questions regarding the efficacy of the courts and the enforcement of its orders, an aspect which till today is largely taken for granted. The Prime Minister may in fact have done the Court a great service by checking the extent of its sympathy with the poor of this country.

So what happens to the foodgrains?

The Court, I believe must ensure that the government takes all necessary steps to fulfil its constitutional obligations which include being made to answer as to why it allowed the foodgrains to rot in the first place and why it cannot distribute the rotting foodgrains now. However, the exercise must be deliberative and involve the government having to state its reasons before the Court. It must not extend to forcing the government to take specific measures for the reasons outlined above. At the same time, the Prime Minister himself must not remain content with telling the Supreme Court not to dictate policy; he must ensure that his government autonomously does all it can to ensure foodgrains do not rot and storage capacities are adequate which is clearly something it has not done thus far. Only extreme insensitivity would not suggest this course of action in the future and extreme incompetence fail to ensure it.

The wastage of foodgrains is unfortunate. Equally, the Court’s sympathy with the poor is a sentiment which, as the Prime Minister said, deserves the highest respect.  But rectifying one wrong with another is rarely sagacious. Certainly not for the Supreme Court of India.