Studying the Constitution Bench

In this piece in the most recent edition of the EPW I and my co-authors - Anjana Agarwal, Vrinda Bhandari, Ankit Goel, Karishma Kakkar, Reeba Muthalaly, Vivek Shivakumar, Meera Sreekumar, Surya Sreenivasan, and Shruti Viswanathan - systematically examine all constitution benches since independence. It is well known that the frequency of constitution benches have been in decline for some time (the highwater mark was an average of 134 such cases a year during 1960-64, which has dropped down to a low of 6.4 a year during 2005-2009). Further, as has been mentioned on this blog, several important matters that deal with a substantial question of constitutional law are no longer heard by a five judge or larger bench, seemingly violating this constitutional requirement.

This article verifies the decline in constitution benches in real numbers for the first time in any place that I know of. Further, it looks at how these benches have changed over the years: with opinions becoming longer, more split, and more difficult to determine the victor. Some findings are a bit mysterious - like why appellants/petitioners are doing substantially better in the last couple decades in these cases. Other results seem at first counter-intuitive, but make sense upon further reflection, such as the most foreign citation happening by the Court in the first decade of independence (far before our "globalized" era, but in the fledgling first years where there was little Indian precedent to rely on except colonial era cases). Finally, still other findings were already known, but this study gives more detail and weight - such as Chief Justices disproportionately not being in dissent (we only found a CJI in dissent 10 times since independence), which perhaps indicates they are choosing these benches to their liking (for more on this see this article I wrote in July in India in Transition).

Such quantitative studies as this one have clear drawbacks. One can't get a sense of the importance of individual cases without reading them through and placing them in their context. One can't tell the history of the court in numbers - without narrative, without invoking the values that run through it. And yet, I think such studies are still useful. They give us hard numbers (or relatively hard ones) upon which we can make grounded statements about certain developments we have seen on the court. We can better understand it as an institution. We can say constitution benches are becoming less frequent, we can say opinions are getting longer. This might not be much, but we can say it on solid ground. And that is more than what one can hope for in most discussions about the law. Why the court is hearing fewer constitution benches or writing longer opinions. Or whether it should. Those are questions numbers can't answer, but which they can inspire debate about, and hopefully will.

Of the State and Beyond the State

I wanted to flag two articles that both provide important ways of thinking about law the state and our colonial legacy.

Siddharth Narain in EPW traces the history of sedition laws and asks pertinent questions about the role that it plays in the Indian republic.

Jeff Redding in "Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems" examines a Supreme Court petition that challenges the constitutionality of the mushrooming Shariat courts and Dar-ul-Qaza courts in India to highlight what he describes as the institutional turn in Indian legal pluralism.

Both articles ask key questions about the role states should play in regulating lives of its citizens.

Annulling a contract

The Indian Government's resolve to annul the Antrix-Devas 2005 agreement must mark as the most mysterious Executive decision taken in recent years.(Use this link to access the contents of the recent issue) In this article, I examine the issues involved, and the likely consequences.

In another piece, I reflect on the Supreme Court's recent decision in Arup Bhuyan case, and compare it with the Chhattisgarh High Court's judgment rejecting Binayak Sen's bail plea.

Articles by A.G.Noorani (Lobbyists and the law) and by Justice Krishna Iyer (Time for change) are worth reading.

Which Books Changed You?

The advance access page of the International Journal of Constitutional Law (I-CON) has a fascinating article by Pratap Bhanu Mehta describing the ten books that have most influenced him. The piece makes for a remarkable read not simply because of the range of books covered (the list includes the Mahabharata, Burke's Reflections on the Revolution in France, Rawls' Theory of Justice, Constituent Assembly Debates, Montaigne's Essays, Max Weber, Smith's Wealth of Nations, Tocqueville's Democracy in America, Nehru's Discovery of India, and Hazari Prasad Dwivedi's Kabir) but also because we are exposed to Mehta's amazing ability to read books in an almost meta-theoretical way, as if to ask - what does this book uniquely do that no other book does.

Submission to Parliament on the Sexual Harassment Bill

The Oxford Pro Bono Publico (OPBP), a group of law postgraduate students and Faculty members dedicated to the practice of public interest law on a pro bono basis, has submitted this report to the Rajya Sabha Committee scrutinising the Protection of Women against Sexual Harassment at Workplace Bill 2010. In this report, OPBP conducted a comprehensive survey of the law relating to sexual harassment in Australia, Canada, the European Union, the United Kingdom and the United States of America. Based on these provisions, it set out recommendations for changes to the Bill. The main aims of the project were to suggest changes to the definition of sexual harassment and to the mechanism for remedies provided in the bill as well as to recommend the insertion of an anti-retaliation provision.

On politics and constitutional institutions

Two recent, and rare, Op-Eds celebrating rather than berating our politicians (Shekhar Gupta) and our constitutional institutions (Jaithirth Rao) make interesting reading. In this context, readers may also be interested in this earlier post on this blog; Arun Shourie's lament that excellent parliamentary debates are ignored by the media; Carol Harlow's excellent article 'Popular Law and Popular Justice'; and Adam Tomkin's article 'In defence of the political constitution'.

Anti-Defection and the Karnataka High Court

A recent post on this blog covered the Karnataka High Court decision on anti-defection law. Two recent op-eds, one by C. V. Madhukar in the Indian Express and the other by Sudhir Krishnaswamy in the Sunday Guardian, present very different views on the judgment. Krishnaswamy's op-ed covers the important question about the admissibility of the petition; Madhukar's does not do so though I think it lies at the heart of the case. The other important question, which both consider at length, is of course whether an independent member who joins the government should be disqualified, what the wording implies in para 2(2) of the 10th schedule, and what kind of controlling precedent Jagjit Singh actually is.

Rethinking the UCC debate

In a recent opinion piece I argue that the rather hackneyed debate on the UCC and Indian multiculturalism needs to be reimagined given certain significant shifts in ground realities.

"Legislative reforms in Hindu and Christian law and the increasing juridification of Muslim law have created a greater degree of uniformity between the different personal laws. Secondly, there has been greater democratization inside communities and a concerted attempt to reform family law from within. Third, new social surveys have demonstrated that the differences in gender dynamics and family structures bear a greater correlation to economic class and geography than to religious identity. Finally, the focus in family law reform has expanded to address questions of domestic violence and the right to a matrimonial home which cut across community identities"

Because of the limits of the format I was not able to supply all the references that I would have liked, but for those who are interested I would recommend

-on the juridification of Muslim family law
Flavia Agnes, Law, Justice and Gender: Family Law and Constitutional Provisions in India (Oxford, New Delhi, 2010)

- on fragmentation within Muslim organizations

Justin Jones, ‘Signs of churning’: Muslim Personal Law and public contestation in twenty-first century India"

Sylvia Vatuk, “Islamic Feminism in India? Indian Muslim Women Activists and the Reform of Muslim Person Law.” In F. Osella and C. Osella, eds., Islamic Reform in India, Special Issue, Modern Asian Studies 42/2 & 3, 2008.

-on survey data on the conditions of Indian women

Zoya Hasan and Ritu Menon, Unequal Citizens: A Study of Muslim Women in India (Oxford University Press, 2004)

Gujarat High Court's stimulating interpretation of the demands of Indian secularism

On Feb 10, 2011, a division bench of the Gujarat High Court dismissed, with "exemplary costs" of Rs 20,000, a PIL filed by a Dalit activist challenging the performance of Hindu religious functions during a 'foundation laying/bhumi pujan ceremony' on the grounds of the High Court. The full text of the judgment in the case of Rajesh Solanki v. Union of India is available here (hat tip: Law-in-Perspective), and makes for very interesting reading. The judgment is strangely silent on the material facts that led to the petition: for those facts, one has to turn to media reports (such as those available here and here).

As set out in the judgment, the main ground of challenge was as follows:

“ 5. Much emphasis was given by the learned counsel for the petitioner on the aspects of the secular character of our Constitution and the word “Secular” incorporated in the preamble of the Constitution read with the relevant Articles of the Constitution provided for right to freedom of religion were pressed in service. It was submitted that as per the constitutional debates which had taken place before our Constitution came into force, there were various discussions on the said aspect, some of which are referred to in the petition and some were submitted at the time of hearing to contend that the State cannot have any religion. Any action on the part of the State to identify itself with any particular religion could be said to be non-secular activity on the part of the State. It was contended that offering prayers with the help of Pandits who spoke Sanskrit slokas at the Bhoomi Pujan could be termed as identification by the Constitutional dignitaries or the High Court with Hindu religion and such activity would hurt the religions feeling of the citizens who professes other religion and therefore, such action can be said as non-secular and deserves to be declared as unconstitutional. It was submitted that the petitioner has no enmity with any Constitutional dignitaries who offered prayers at the ceremony including the other Honourable Judges who attended and participated at the function, but such function can be said as resulting into creating adverse feeling amongst the other persons who do not believe in Hindu religion. It was also submitted that the High Court being the highest judiciary in the State should guard the constitutional rights given to all citizens and should maintain the secular character of the State. The performance of such ceremony as per Hindu religion would shake the confidence of the people who do not believe in Hindu religion and therefore, the action deserves to be declared as unconstitutional as prayed in the petition. It was also submitted that secularism being one of the basic character of the Constitution, even Parliament cannot amend the Constitution so as to alter the basic structure of the Constitution. Therefore, such would equally apply to the High Court which is the highest judiciary in the State and the constitutional body to guard the rights of the citizen in the State."

The response of the division bench, comprising Justices Jayant Patel and J.C. Upadhyaya, to this line of argument was as follows:

"19. The apprehension voiced of the alleged hurt of any religions feeling or that the impartiality of the highest judiciary of the State would be at stake on account of the foundation laying ceremony performed by offering prayers and the sanskrit slokas spoken at that ceremony, can be termed as a pervert view or ingenuine doubts self created in the mind of the petitioner or the persons whose cause is sought to be exposed by the petitioner in the present petition to a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity. Further, as observed earlier, such action of offering prayer to the earth at the time of foundation laying ceremony cannot be termed as an activity by the High Court which may result into flourishing any particular religion as sought to be canvassed. The real object and purpose is for successful construction of the building and not for flourishment of any religion. If for any noble cause, prayers are offered by any person, such would not result into an action for flourishment of any particular religion, but could be termed as for betterment of all persons who are directly or indirectly to be benefited by the successful construction of the building. If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer. The language used for offering prayer or mode adopted for offering prayer with the help of a group speaking a particular language cannot be termed as siding with a person or a group of person adopting a particular mode for offering prayers. As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.”

The ToI report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High Court’s judgment spectacularly ducks this more important and salient question. It would have been quite a different scenario if the Gujarat High Court had invited religious figures from the major Indian religions to the foundation ceremony to offer common prayers. (This is not to say that that scenario is not without problems, but to emphasise that only one religion was represented).

There is also a disturbing whiff of vindictiveness in the costs awarded to the PIL petitioner, who was, in any view of the matter, raising a basic and significant question. One hopes that he will persist with the case, and take it on appeal to the Supreme Court, which in turn should take the opportunity to clarify the state of the law on this important question which arises in Indian public life with frequency and consistency.

Feminisms of Discontent Conference

Jindal Global Law School and Australian National University will be holding a conference entitled "Feminisms of Discontent: Global Contestations" this weekend in New Delhi with a wide range of prominent speakers who promise to offer stimulating discussions on the role feminism should (or should not) play in the law today. For those interested in more information and a complete schedule please check out the conference's web page here.

Karnataka High Court: MLA Defection Case

The order of a full bench of the Karnataka High Court in the MLA defection case, dated February 14, 2011, which runs into 192 pages, is available here. The resounding proposition of the court's decision in this case is that when an independent member of a legislative assembly becomes a part of the ministry in a government dominated by a single party, he loses his independent character and becomes liable to disqualification on the ground of defection.

Five independent members of the Karnataka Legislative Assembly who had declared their support to the BJP government, and were inducted into the Council of Ministers, were disqualified by the Speaker of the Assembly under Paragraph 2(2) of the Tenth Schedule to the constitution, factually following their representation to the Governor that they withdrew their support to the government.

Paragraph 2(2) of the Tenth Schedule disqualifies an independent member of a house/assembly who joins any political party after election on the ground of defection: “2(2) : An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.”

On page 76, the court states the object of Paragraph 2(2): “While electing a person as an independent member of Legislature, the majority of the voters of the constituency would reject the candidates from the political parties contesting from such constituency. As such, it is expected and it is incumbent on the elected independent member to retain his independent character without joining any political party and without imbibing or following the policies or ideas of any political party. The electorate while choosing to vote for the independent would be aware that if elected, their representative would not be a part of the Government which in any event will be formed by one or the other political party.” (emphasis supplied)

The question was whether the five petitioners in this case had “joined” the BJP. The court held that they had, for the following reasons:

(1) Becoming Ministers:

Citing Jagjit Singh’s case [(2006) 11 SCC 1], it was held that giving “outside support” to a government does not constitute "joining" a political party. However, joining the ministry in a government formed by the single largest political party does not constitute mere “outside support”:

“The general perception of understanding the act of outside support means, supporting the Government from outside without being a part of the Government but adding to the number to have majority in the Assembly, meaning thereby if an elected representative joins the Ministry, he is not giving the outside support to the Government, but is a part of the Government.” (emphasis supplied)

The court held that while electing an independent candidate, the electorate would be aware that their representative would not be a part of the government. Accordingly, by becoming a minister and thereby a part of the government, the representative becomes liable to disqualification. To address the concern that this holding may have far reaching implications for coalition governments, the court chose to distinguish between a coalition government and a government formed by the “single largest party”:

“In this regard, the contention of Sri Ravivarma Kumar, appearing on behalf of the petitioners, also needs to be considered. He contended that in case the view of the Speaker that the conduct of joining the Ministry amounts to joining the political party is accepted, then, there would be far reaching consequences on the concept of coalition Government. Such apprehension cannot be accepted since in the instant case, it cannot be considered as a coalition Government. The coalition Government is different from the Government formed by a single political party. Coalition Government is the Government by a coalition of political parties formed when political parties unite to secure majority in the House over the other groups. In the coalition Government, all the political parties which form a coalition will retain their independent political character as a heterogeneous combination and they will stick to their own ideologies. One political party of a coalition Government will not impose its ideology on other parties. However, there would be common understanding or common minimum programme to run the Government. No member of such political party which is a part of the coalition will be able to take independent decisions to either join or withdraw from the Ministry, but would be the collective decision without surrendering itself to the other political party which also results in the stability of such Government. Coalition Governments are formed in order to avoid repeated elections or elections at irregular intervals and basically they are formed in the interest of the State and not for individual benefit. But here is a case where the Government is formed by a single largest political party to which the independent members have supported unconditionally and have joined the Ministry.” [paragraph 48] (emphasis supplied)

Does this holding discredit the resolve of independent members generally, by assuming that they will not “retain their independent…character” or “stick to their own ideologies” when they become ministers? Further, does this paragraph seem to imply that in a coalition government, an independent member who joins the ministry may not be liable to disqualification on the ground of defection?

(2) Attending Party Meetings Otherwise than as Independent Members:

The petitioners in some instances signed the register of party meetings without distinguishing themselves as distinct from other party members: “Since the petitioners have attended and signed the Register relating to BJP Legislature party meetings, it can be inferred that they have treated themselves as members of the House belonging to BJP as a continuing act after joining the Ministry.” [page 171]

(3) Receiving the Whip sent by the Chief Whip of a Party:

“If really the petitioners were not the members of the Legislature party of BJP, they would not have received the `whip’ sent by the Chief Whip of that party. There is no reason as to why the petitioners should receive such a direction issued by the Chief Whip of BJP if they had retained their independent character and identity, more particularly, when they were described as the members of ruling party.” [p. 174]

(4) Participating in Rallies:

The petitioners also participated in rallies conducted by the BJP under its banner and symbol. [p. 174]


The fact that their names were not changed in the register maintained by the Speaker under Rules 3 and 4 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 was held to be irrelevant, since the petitioners had not expressly joined the party by paying membership fees and filling up the form [p. 155]

Interestingly, it was also held that voters can file complaints against defection despite Rule 6(2) of the Rules, since: “The voters of [a] constituency should not be placed in a helpless situation if none of the members of the House complains about the illegal defection. Therefore, every voter of the constituency should have an opportunity to oppose the illegal defection by bringing it to the notice of the Speaker. Since Tenth Schedule of the Constitution does not debar filing of the complaint seeking disqualification of a defected member, every voter in the concerned constituency has got right to file application seeking disqualification since a Rule should not be permitted to bar the remedy which is not barred by the Constitution.” (emphasis supplied) [page 97]. This holding adds to the court’s jurisprudence on the formulation of a general right to a remedy: courts seem to be increasingly unwilling to create situations in which citizens do not have access to official redress.

Countermajoritarianism, the Court and the Capital

Unelected courts in constitutional democracies are described as “countermajoritarian” fundamentally because they carry the power to invalidate law enacted by the directly elected representatives of the people. However, in a purely formal sense, is the Indian Supreme Court countermajoritarian? In order to answer this question, I compared the Supreme Court’s composition between 1985-2010(published in the EPW, and available here) with the composition of Parliament: particularly, with the seats that are allocated under India’s constitution to the Lok Sabha (Article 81 read with the first schedule to the Representation of People Act, 1950) and the Rajya Sabha (Article 81 read with Schedule 4 of the constitution).

The results of this comparison are set out in the table attached to this post. Columns 1, 3, and 5 set out the total members of the Rajya Sabha, Lok Sabha and, for the sake of convenience, both houses of Parliament, respectively for each state. Columns 2, 4, 6 and 7 reflect the percentage-wise voting power belonging to each state in the Rajya Sabha, Lok Sabha, both Houses of Parliament, and the Supreme Court of India respectively. Column 8 measures the difference in the voting power of each state between Parliament and the Supreme Court of India respectively (essentially, Column 7 - Column 6). Accordingly, if the figure in Column 8 is positive, it means that a state has a higher representation on the Supreme Court than it does in both Houses of Parliament, and if the figure is negative, then the state has a lower representation on the Supreme Court than it does in Parliament.

Perhaps the most striking result of this comparison is that while Delhi has less than 1.3% voting power in each House of Parliament, it has on average over the last twenty five years had 6.4% voting power on the Supreme Court of India. To put this into perspective, consider that the following states have on average had lesser representation than Delhi on the Supreme Court of India over the last twenty five years, although they enjoy significantly greater voting power than Delhi in both Houses of Parliament: Gujarat, Punjab & Haryana (each state taken separately), Kerala, Madhya Pradesh, Orissa, Rajasthan, and Jammu & Kashmir.

Besides Delhi, the following states have a >0.5% difference between their voting power in Parliament, and their voting power on the Supreme Court (not counting the newer states of Jharkhand, Uttaranchal and Chhatisgarh): Gujarat (+), Haryana (+), Kerala (+), Maharashtra (+), Karnataka (+), Orissa (+), Punjab (+), Uttar Pradesh ( - ), Jammu & Kashmir (+), Himachal Pradesh( - ).

This comparison does not seek to establish or even argue that judges or Parliamentarians vote according to the geographic region that they represent. What it does seek to do is to determine whether the court's state-wise composition mirrors the constitutional scheme for majoritarian representation.

[Methodological Note: since the states of Punjab and Haryana have had 6.6% representation on the court on average, and since it is difficult to conjecture how this figure splits between Punjab and Haryana separately, each state has been attributed half the total figure of 6.6% for the purposes of this comparison].

A new era begins in Egypt

As Egypt begins its post-Mubarak era, the successful revolution is sure to leave many bewildered. Till recently, political scientists hardly considered Egypt a possible candidate for a successful revolution, with many characteristics of historical revolutions being absent there. Even as Indian observers debate the question of why and how Egyptian revolution cannot be replicated in India, the unique characteristics of Egyptian revolution will be of interest to the readers here. Frontline's latest issue, published before the revolution became successful, explores the protest movement in Cairo and what it signified.

My contributions to this issue include an article on the Supreme Court's recent judgment and its partial modification in the Graham Staines murder case in the wake of civil society's outrage against some remarks of the Judges. I argue that the modification of the judgment, still leaves one dissatisfied.

The second one is a review article, dealing with Durga Das Basu's Commentary, and Shorter Constitution's latest editions. The article also discusses two more books of interest, trying to find the answer to the question why and how the Indian Constitution is resilient.

Prior sanction: Torture's recipe for corruption?

I recently noted the recommendations of the Rajya Sabha Select Committee on the Prevention of Torture Bill with respect to the impunity clause which required prior governmental sanction in this article in the Hindu. The Committee recommended three changes:

1. All requests for prosecution must be dealt with within 3 months - if no decision is taken, sanction will be deemed to have been granted.
2. Any refusal to grant sanction must be accompanied with reasons.
3. Refusal can be appealed by an aggrieved party (currently, it can only be reviewed, not appealed).

Now, the Group of Ministers appears to have made similar recommendations with regard to prior sanction requirements in corruption cases. But can we count on our political class to give up such a powerful tool of patronage and punishment?

An Injudicious Fraud

Guest post by B.N. Suchindran, an advocate of the Madras High Court.

“It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge.”

-        Bhagwati J., in D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378.

 Self restraint and recognition of the one’s own limitations are the need of the hour. In our constitutional scheme, the Supreme Court and High Courts are essentially courts that are meant to declare the law. Of late, too much of the “individual predelictions” of judges have been allowed to seep into the constitution. Hidden in the frequent praise for judicial activism, lies the spectre of an aristocracy of the robe. The judiciary is capable of subterfuge as much as any other organ of the state. Unfortunately, judges have become in Cardozo’s famous phrase, ‘knight errrants of the law.’

Certainty in the law is important for its development. It is the bedrock of true justice. As Seervai noted, “The greatest danger to the administration of justice and constitutional interpretation arises from the genuine desire of judges to do justice in each individual case.” The doctrine of precedent is itself an important check on the freedom of the judicial power.

And this uncertainty has been encouraged by the judicious ignoring of an important constitutional mandate. Article 145 (3) of the Constitution of  India states that the minimum number of judges who are to sit for hearing any case involving a substantial question of law as to interpretation of this constitution or for the purpose of hearing any reference under Article 143 shall be five. The use of the word ‘shall’ is clearly indicative of the mandatory nature of the constitutional mandate.

In the early years, the Court interpreted this to mean that it is only the constitutional question in a case that has to be decided by the constitutional benches and any other questions could be decided by a smaller bench. As the workload of the court grew the practice of having smaller benches has become the norm under the ruse that the law once having been declared a smaller bench is merely applying it. However, in many cases, the observation of smaller benches have substantially altered the interpretation of the provision.  In Union of India v. Raghubir Singh, (1989) 2 SCC 754, the Court had suggested that for the purpose of imparting certainty and authority to the judgement of the Supreme Court, it would be preferable if all judgements are rendered by Division Benches of at least three Judges unless it is not conveniently possible for compelling reasons.

A classic example is Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, where substantial changes to the law of standing and the interpretation of Article 32 were brought about by a 3 judge bench. In Mohini Jain v. State of Karnataka, (1992) 3 SCC 666, a two judge bench of the Supreme Court made substantial changes to the interpretation of the Article 21 by including the right to education within its ambit. A more recent example is Selvi v. State of Karnataka, (2010) 7 SCC 263 where are a 3 judge bench of the court considered the question of whether narco-analysis is violative of the right against self incrimination embodied in Article 20(3) of the Constitution.

I would submit that these judgements are passed without jurisdiction. Hence, they would effect, be a nullity, since the benches which decided them were not constituted in accordance with the mandates of law. This defect could only have been remedied if the judgement purports to follow a clear statement of a previous constitution bench in which the exact same substantial question of law was raised.    

The reason for this rule is specifically that the decision of the elected representatives of the people should not be lightly set aside by the different predilections or opinions of individual judges. Judicial review is meant to act as a check on the majoritarian tendencies that can often sway democracies. It was the understanding, rightly, of the framers that a larger bench would promote greater objectivity and clarity in the statement of the law declared. Today, the increasing pusillanimity of puisne judges ensures that really speaking it is the senior judge who writes the judgement entirely.

The higher courts must declare the law with clarity and authority in order to ensure that their orders get the respect they deserve from the people and the courts below. In the long run, this will minimise the necessity for an appeal or ‘taking a chance’. It will have the salutary effect in the long run of reducing cases that are filed in the hope that they may find a sympathetic judge. Neither justice nor the development of the law is meant to be a game of dice!

A Tribute to Ram Anand -- Upendra Baxi

A guest post by Upendra Baxi in honour of R.P. Anand, former president of the Indian Society of International Law, who recently passed away. 

Finitude is a fact that makes us all coequally human; even so, the demise of Professor R. P. Anand constitutes a loss of an entire social world for his students, colleagues, readers, and friends.

He nurtured inaugurally traditions of postcolonial reconstruction of international law. In doing this Ram always interlocuted the ‘Eurocentric’ progress narratives. However, Ram goes beyond a critique of the erstwhile eras; rather, he rigorously addresses thus the international-law- in-the making, the innovative normative regimes of ‘law’ governing the UNCLOS (the Convention on the Law of the Sea.)

The TWAIL (Third World and International Law) movement, while offering a more fully-fledged ideological critique of contemporary international law, relations and organizations, continues to acknowledge Professor Anand’s work (especially concerning the ‘sovereign equality of states.’) In an era of contemporary knowledge-production based on practices of the massacre of ancestors, this TWAIL gesture of gratitude towards Ram’s foundational work signifies a high tribute, also eminently deserved.   

Professor Anand nurtured and nourished a fine tradition of Indian teaching and research and international law. Many of his students benefited by the active presence of Ram Anand in the classrooms, conference halls and  the theatres of intensive research guidance; a few among them have chosen to remain in the academia and have emerged as leading scholars in their own right and light. Some have contributed, via Foreign Service assignments, to the making and the conduct of India’s foreign policy. And some others have made their mark in the UN system. There can be no greater cause for satisfaction for a teacher than the achievement of his pupils, colleagues, and associates.

Most crucially, Ram nourished, among significant others, the Indian Society of International Law and contributed significantly to its academic presence in the world. In the last two decades, Ram together with Professor Rahamtuallah Khan continued to lead the Society to new heights. Only a   few weeks ago, I suggested that we rename it as ‘Ram-Rahmat Indian Society of International Law.’ We all heard the soulful laughter of Ram—an experience that we cherish but also shall now miss for ever. 

Ram was a quintessential teacher. Secure in his belief that that international law must remain accessible for intelligent grasp by all, he spoke and wrote in a simple style that resisted the lure of Yale Law School-- especially the great Gharana of Myers McDougal and Harold Lasswell. Knowing full well that international law is a mighty arena of power, politics, and policy, Ram believed in the relative autonomy of the discipline.

Doctrinal study/exploration remained thus for him a primary task of pedagogy and scholarship. In so doing, he displayed a virtuoso resistance to reductionist practices of teaching and researching the expanding spheres of international law as a mere handmaiden of power politics. Despite the subsidiary role accorded by the Statute of the International Court of Justice to ‘publicists’  as  a ‘source’ of international law, Professor Anand remained committed to the view that juristic expositions and enunciations play a coequal role in shaping, and at times even determining, its  future itineraries. And he nurtured this perspective further by his remarkable inaugural, as well as sustained association with the Indian Society of International Law and the Afro-Asian Legal Consultative Committee, amidst other fora.

For him remained crucial the scholarly tasks of understanding international law as fashioning normative restraints on the worlds of sovereign power. Ram was increasingly bewildered by modes of critical and postmodern approaches to international law. As an inaugural figure critiquing the Eurocentric modes of its production, he still resisted these approaches because he believed that the pursuit of ‘demystification’ of the discipline encoded also some new forms of –re-mystification.’

Not that by any means I exemplified some postmodern narrative virtues, in many a conversational moments between us, Ram provoked me by saying in his earthy ways:  ‘Yaar, ye meri samaj ki bahar hey!—meaning ‘Dear Friend, all this remains outside my grasp!’ He affectionately reproached on many occasions by saying: ‘tum siddhi bat kui nahi kar sakete ho’ (why can’t you speak simply!) 

Siddhi bat is an enormously complicated virtue, which he perfected with luminous eminence.  Yet, I used to caution him, even as admiring his unflinching insistence on doctrinal narratives, that these may at best present a part of the story, as TWAIL scholarship now continues to reminds us so fully.  Even as I agree that the batchit (talk/discourse) about international law ought to accord a fuller dignity to doctrinal/blackletter lineages, the question always remains about  alternate constructions of international law – whether in the metaphor of Wilfred Jenks as  a ‘common law of humankind’ or with more contemporary Rawlsian metaphor of the ‘law of peoples.’  These frame some appropriate concerns now-- as it sadly turns out-- for a posthumous Festschrift for Professor Anand.

My most recent memories of Ram relate to his presiding over my 2010 Krishna Menon Memorial Lecture at the Indian Society of International Law, the Society-sponsored’ refresher course’ for international law teachers,  and December 9 JNU critical celebration of Human Rights Day.  On each occasion, Ram was seen by all as ‘taking notes.’  For me, at the very least, this recall exemplifies his ceaseless attention to whatever others may have to say—a full testimonial to scholarly life and modes of being.  

Beloved Ram, I shall continue to miss your down-to-earth ways of understanding the life of international law. Yet, in what may still remain of my own individual life, I shall stand guided by your friendly and robust critical accent and voice. So will remain other friends touched by the gift of your earthly presence amidst us.

A reluctant Alvida/Adieu, dearest Ram.

On liberalism and politics

Pratap Bhanu Mehta's thought-provoking piece analyses the tensions between multiculturalism and liberalism. This comes in the backdrop of David Cameron's recent call for 'muscular liberalism' in stead of multiculturalism in Britain. The tension is ever-present in Indian politics as much as in British politics - Mehta mentions the personal law debate. Our political establishment's wavering position on freedom of speech is yet another example (discussed previously on this blog).

Mehta's insight that 'liberal politics globally has been curiously susceptible to being taken over by right-wing nationalists' is noteworthy. Notice that he talks about liberal, rather than neo-liberal, politics. I find the right-wing's takeover of the liberal agenda curious too. Unlike neo-liberalism, recent liberal thought not only recognises but also mandates redistributive justice (and not necessarily based on identity). Liberal philosophers from John Rawls to Joseph Raz to Martha Nussbaum are more likely to be classified as belonging to the 'left' than to the 'right'.

On a related note, much is being made of 'efficiency' in the public sector in British politics these days. Again, like liberalism, I fail to see why efficiency should find a natural home in right wing politics. Surely, the left can make a positive case for a redistributive (big?) state which is also efficient as easily as the right makes a case for a small and efficient state? Appropriating liberty and efficiency as values of (at least parts of) the political left may also help expose those politicians who use them as pretexts for another agenda.

Constitutionally Defective Tribunalisation of Justice

Aggrieved by what we saw as the establishment of a constitutionally defective IP tribunal (IPAB), we challenged it through a writ petition before the Madras High Court. On the very same day, a writ was filed by advocate Ananth Padmanabhan on behalf of SIMCA challenging the constitutionality of the copyright board.

As some of you may recall, the Supreme Court took indiscriminate tribunalisation to task when it upheld the challenge to the constitutional validity of the National Company Law Tribunal (NCLT). Abhinav had blogged some of his preliminary thoughts on this case here.

We were fortunate enough to have the same team (senior counsel, Arvind Datar and upcoming IP litigator, Anand Padmanabhan) that won the NCLT case to argue this IPAB case pro-bono for us.

Prashant Reddy has a detailed explanation of the writ that we filed here. It also finds mention here and here.

Despite clear guidelines by the Supreme Court in NCLT to ensure that tribunals are manned by independent and competent adjudicators (not those under the control of the executive), the government continues to flout these norms. A case in point is the Electricity Appellate Tribunal, the constitutionality of which was challenged by Saptak Sanyal, an ex-student of NUJS who is now clerking at the Supreme Court. This case is being heard by the Supreme Court at the moment.

Similarly, I believe the constitutional validity of the Green tribunal (discussed by Namita) was recently challenged by a law student from the Ambedkar School of Excellence in Law, Chennai. What next? The Cyber Appellate Tribunal?

1st Annual SLR-Sage Essay Competition

The Socio-Legal Review, the student edited peer reviewed interdisciplinary journal published annually by the National Law School of India University, Bangalore in collaboration with Sage Publications, is organising the 1st Annual SLR-Sage Essay Competition. The topics are as follows:

1.John Milbank argues that, "Liberal principles will always ensure that the rights of the individual override those of the group.” For this reason, he concludes, “liberalism cannot defend corporate religious freedom.” Discuss the 2010 Babri Masjid verdict in light of this statement.

2. The Bhopal Gas Tragedy: On Whether and How the Indian Companies Act, 1956 can be used to make a case for imposing social responsibility on corporations?

3. Are Whistleblowers the New Age Journalists? Critique in Light of WikiLeaks.

First Prize: 10000 INR
Second Prize: 5000 INR
Third Prize: 2500 INR

All three essays will be published on SLR’s website: www.sociolegalreview.in.

SUBMISSION DETAILS

1. Submissions should be sent as soft copies to "essay@sociolegalreview.in" in .doc or docx format only. Please state your name and contact information, including your university and year of study,on a separate page and not in the text of the essay. The title of the mail should be “Essay Submission 2011”.
2. The deadline for submissions is 1st April, 2011.
3. The length of the essay should be between 2500 and 3000 words.
4. Any clarifications should be sent with the title “Essay Competition Query” to
essay@sociolegalreview.in. Joint submissions are not permitted.
5. The competition is open to any student anywhere in the world pursuing an undergraduate degree during the course of this event. It is open to students from all streams, including law.