Miscarriage of Chief Justice, Sri Lanka Edition

Earlier this week proceedings were initiated in the Sri Lankan Parliament to impeach the Chief Justice of Sri Lanka, Dr Shirani Bandaranayake. The allegations against Chief Justice Bandaranayake are of personal misconduct and failure to disclose her income and her foreign exchange . However, most media sources widely agree that the impeachment proceedings were triggered by an adverse judgment given by her striking down the Divenguma Bill. The judgement required that the bill had to be enacted with a two thirds majority and needed a referendum for one of its provisions.

The bill would have centralized development funds which were previously devolved to local authorities, and would have granted greater discretionary powers to the Minister of Economic Affairs. Devolution has been a long standing demand of Tamil parties and was brought as part of the peace process. However, ethno-nationalist Sinhala politicians want to nullify even the limited devolution that has been introduced. Basil Rajapakse, the Minister for Economic Affairs, is the brother of the President Mahinda Rajapakse. The Speaker of Parliament, who initiated the impeachment proceedings and heads the Parliamentary Select Committee, is Chamal Rajapakse, another brother of the President.

The first two hearings have begun before the Parliamentary Select Committee. Chief Justice Bandaranayake's request to have the hearings made public have been refused, and her motion to two members of the eleven member committee to recuse themselves on grounds of bias (she had ruled against them or their family members) has been ignored. This is not the first attempt to impeach a Chief Justice in Sri Lanka, governments had made attempts to impeach Chief Justice Neville Samarakoon (1984) and Chief Justice Sarath N.Silva (2001). However, the stakes appear to be much higher in this case.

1) The Chief Justice has emerged as a symbol around whom a large number of groups have rallied, including lawyers, trade unions, Catholic priests and the influential Buddhist monks. The government has been forced to bus in counter protestors to demonstrate against the Chief Justice. The support extended by all levels of judiciary and opposition parties to Chief Justice Bandaranayake is worth noting.

She has been in several ways an unusual appointment. She remains to the best of my knowledge the only academic to have been appointed to a Supreme Court in South Asia, and her lack of judicial background had led to several protests by lawyers and judges at the time of her appointment. However, the judiciary as a whole seems to be coming to her defence. On Monday, all the judges of the High Courts and the Magistrate's Courts gathered at her residence and issued a statement of support for the Chief Justice.

When she was sworn in as Chief Justice in 2011, opposition parties that are rallying to her side had been extremely critical of her and made allegations of corruption against her husband. However, akin to the moves by the Pakistani opposition towards Justice Chaudhary, they are becoming increasingly vocal in her support.

2) Similar to proceedings in Pakistan and in post-Emergency India, the Supreme Court has also begun hearing a petition challenging the constitutionality of the entire impeachment process in the Constitution. The Supreme Court has summoned the entire Parliamentary Select Committee before the court to respond to petitions filed by civil liberties groups. The Speaker has ruled that these summons need not be complied with.

3) Commentators have begun to make arguments on the 'basic structure' of the Sri Lankan Constitution and held that the principle of judicial review is central to it, and the courts reserve the right to review constitutionality of any government action.

ICJ Nomination of Justice Dalveer Bhandari: Whither Indian Decision Making

Every few years, a political circus convenes at the United Nations to elect judges of the International Court of Justice. The process is politicized, and a failure to admit this would be naïve. At the same time, a running feature – common to all judges of the exalted ‘world court’ – has been a background, in the worst, and excellence, in the routine, in the field of international law, the substrate of the Court’s deliberations. Take the most recent addition to the Court’s celebrated list of members, Mr. Giorgio Gaja of Italy – previously an ad-hoc judge of the Court, member of the International Law Commission for two terms, Professor of International Law at the University of Florence and currently, Special Rapporteur for the second generation of the ILC’s work on responsibility.

I could reiterate the background of each judge presently at the Court to demonstrate a general standard of excellence in international law matters, but suffice it to say that the Statute of the Court itself labels them as the ‘highly qualified publicists’ (Article 38(1)(d)), accordingly rendering precedential value to their dissents.  

India has had its fair share of representatives at the ICJ; being one of twelve states with three of more judges at the Peace Palace. We were given the chance to build upon this impressive record a few months back, as political turmoil in Jordan led to the recall of Judge Al-Khwasaneh. This empty slot was filled by the General Assembly and Security Council in accordance with Article 4 of the ICJ Statute.

India, having offered its support to Jordan in the previous elections, was very well-placed to nominate a candidate to the ICJ, and so it did: Hon’ble Mr. Justice Dalveer Bhandari of the Supreme Court. Before I attempt to demonstrate the absolute absurdity attached to this choice, a little context would be helpful.

Candidates for the vacant post were invited by Security Council Resolution 2034 (2012), allowing recommendations to be made by National Groups in the Permanent Court of Arbitration. The Indian delegation at the PCA currently comprises retired Judges Kania and YK Sabharwal, along with senior advocate B. Sen (who themselves are required to have displayed a ‘known competency in matter of international law’). The final decision is left to this delegation, although Item 38 of the Third Schedule (under Rule 8) of the Government of India (Transaction of Business) Rules allows the Prime Minister’s Office to submit names for consideration. In this case, the PMO suggested Mr. P. S. Rao – former ad-hoc judge at the ICJ in the Malaysia-Singapore territorial dispute, member and Chairman of the International Law Commission, ex-chief of the Law and Treaties Division in the Ministry of External Affairs (as also principal legal advisor to that Ministry), member of the Insitut de Droit Internationale, Special Rapporteur for the ILC’s work on liability for a period of 9 years, agent for India at the ICJ in 2000, consultant for the WTO and so on.

Much to my shock, the Indian delegation at the PCA chose HMJ Bhandari for the post, overlooking Mr. PS Rao. At first instance, I told a friend, hoping to share my dismay. I was startled (at the time, though naively-so in retrospect) with his reply: “This is India– what did you think”. In my optimistic insistence that this was not (and could not) be the case, I began to rationalize this decision. Here’s what I found:

1.    Mr. B. Sen’s justification was this: “Looking at various criteria such as experience; a person who will be easy to get on international circle; good healthand hard-working, we found Justice Bhandari the most suitable candidate among those who were interested”. He went on, maintaining the standard of coherence displayed in the earlier remark, “I have known him for many years, I knew he was a capable man”.

2.   In response to an RTI, the MEA had this to say: India’s “lobbying efforts and electoral strategy is essential a confidential process”, and thus, the question of whyHMJ Bhandari was chosen lies outside the scope of the Act (CBSE v. Bandopadhyay, 2011, SC).

3.   Justice Bhandari’s background in international law and I quote from his profile on the Supreme Court website, which, due to the MEA’s reluctance remains our only source of information. (NOTE: appending the world ‘international’ to a domestic law project does not transform it into international law):

a.    Graduating in Humanities and Law on an internationalscholarship.

b.    Worked on an International Project “Delay in the Administration of Criminal Justice in India” sponsored by the United Nations.

c.    Executive Member of the International Law Association, India Chapter since 1994. Chairperson of the Delhi Centre of the International Law Association for several years.

d.    President, India International Law Foundation.

e.    A few references to Lectures delivered on Intellectual Property law, in “international fora”.

I will discard points (a), (b) and (e) summarily. Points (c) and (d) do seem to provide some justification for his nomination, but a closer look is more revealing: In this capacity as chairman and member of the ILA (a renowned institution engaging in the development of international law), HMJ Bhandari has neither researched upon, or written any substantive topic, discussion or paper on questions of international law through his tenure; although his count of Opening Speeches and Chief Guest mentions does merit a mention.

In fact, post-election, the Press Release by the ICJ (available here) itself, fails to list any reference to work done in the field of international law in a strong 9 page curriculum vitae. Instead, it includes references to Justice Bhandari’s judgment in Taj, several PIL matters dealt by him, an exhaustive list of lectures, and so on.  

With everything before us, the PCA delegation’s decision shocks me. We can always entertain a rationalizing exercise, to attempt to find a reason to defend HMJ Bhandari’s choice. But with an alternative in the frame of Mr. PS Rao, the futility of that exercise is evident. (this is capped by the MEA’s indefensible remark that a judge at the ICJ is to “above-all, protect national interests” (MEA, No. UI/551/06/2012)).

It pains to second-guess the choice of eminent jurists such as those currently occupying positions in the Indian PCA delegation, but the facts before us leave me no choice. For how else could one explain this absurdity? Perhaps, and I have encountered two particular replies frequently, this was a strategic decision and the final choice was based on considerations of ‘national interest’; or alternatively, the ‘Justice Bhandari is a really smart judge. He is very capable’ line of argument. I will explain why neither of these views is tenable: First, I do not deny the importance of political considerations, or larger questions of national interest. This, however, simply does not apply to this case because one, the decision here is made by the PCA Delegation (themselves in the dark about such national secrets as may influence these decisions), and not by the Government; two, the PMO itself recommended Mr. PS Rao; and finally, a Judge at the ICJ is not a national representative, but rather an independent legal functionary (a sequiturthe MEA has sadly lost sight of).

Second, I do not doubt Justice Bhandari’s legal acumen. He is indeed a brilliant judge, a Judge of the Supreme Court of India no less. Neither am I in a position to comment on a Judge’s standing. Nomination to the ICJ, however, requires a smart and distinguished lawyer, a lawyer such as Justice Bhandari, who is ‘eminently qualified’ in questions of international law. While his standing in domestic law is undeniable, Government decision must be informed by reason and demonstrable rationale. The fact that Mr. Bhandari is in good health, or is hard-working, or that Mr. Sen has known him for several years as a capable man, quite simply does not meet the standard.

The law is a precise endeavour they say, and the same applies here – a judge may be well-versed with domestic legal traditions, but one assumes that a Judge at the International Court of Justice, the principal judicial organ of the United Nations, responsible for adjudicating on questions of international law (Article 38), would possess knowledge of international law! My tone, here, is not sarcastic, but one of exasperation, one that is repulsed by the closed-mindedness of the decision making process.  

But all set and done, I was asked a few days back: ‘Why do you care! As long as India has someone there …’ The question, here, is not just consequential – but rather, a thought that applies equally to all sectors of bureaucratic decision making in India; of focussing on the man, rather than his actions; his name, rather than his credentials; the form, rather than the substance. What strikes me is that such considerations are so overtly evident in the upper echelons of power, in decisions that expose India to the world.

India’s nomination was not uncounted though, with the Philippines nominating its Judge Feliciano – an international law jurist (to no one’s surprise, but perhaps the Indian PCA delegation) having chaired the WTO Appellate Body, and participated in several awards at the ICSID, ad-hoc investment arbitral tribunals amongst similar achievements. Oddly, I was glad that the Philippines had nominated an expert. In fact, a part of me hoped (against hope) that the Indian nominee is not elected, in the hope that this would reform, to whatever extent, the flawed fundamentals of decision making.

As I said, the process is political, and the General Assembly and Security Council were voting for the Indian candidate, rather than the particular individual. Indeed, given India’s recent resurgence in the international political sphere, the Indian candidate was extremely well-placed, and the record voting margin (122 in the GA, 13 in the SC) stands testament to this fact. In that sense, my post here serves no consequentialist purpose – but rather, is a thought of what could have been. 

I wish Justice Bhandari the best (as would all Indians), and look forward to reading his Separate or Dissenting Opinions. At the same time, his future actions as an ICJ judge should not exonerate the PCA delegation for its choice, and neither should his election.

In fact, in all probability, what compelled the delegation to disregard Mr. PS Rao’s nomination will remain a mystery. The only hope remains that this acts a wake-up call for the government, to introduce some coherence in its functioning; to infuse some logic into this madness.

(Guest Post by Raag Yadava, who is a student at the National Law School of India University, Bengaluru.)

Rahul Srivastava v. Union of India

Supreme Court yesterday dismissed the PIL filed by Rahul Srivastava, a student, questioning the continuance in office of  Justice Dalveer Bhandari, who has been nominated for the post of a Judge of the International Court of Justice. The hearing of the case has been covered in some newspapers today. (Another report is here.) The following is one more version of the proceedings, which is slightly different from what has been reported in the papers today. It may be read in addition to the newspaper reports. 


When Justice Kabir asked what was the public interest in the case, Prashant Bhushan, counsel for the petitioner explained that independence of the judiciary, according to the Advocates-on-Record judgment, required that there should be no interference from the executive in the matter of appointment of Judges. If that is so, how could a sitting Judge accept the help of the Government in actively canvassing support in the international fora for his judgeship in the ICJ was the question posed by Bhushan.  


When Justice Kabir did not agree with this argument, Prashant Bhushan said he realised that it was too late in the day to challenge Justice Bhandari's nomination, as the ICJ election was scheduled to take place the next day.  Therefore, he said he was keen on the second prayer of the petition, which wanted the court to lay down the norms for the future.  When Justice Kabir suggested  that he should then move a proper petition for the same, Bhushan insisted it was indeed a proper petition for that purpose.  If he moved a proper petition later, then the Court might say it was just an academic question; therefore, it was the right moment to examine this issue. Bhushan further suggested that the Court could adjourn the matter, rather than dismiss it.  At this point, it appeared as if Justice Kabir was favourably inclined to consider it. 


However, Justice Kabir made up his mind to dismiss it, when the Attorney-General Vahanvati reminded the Bench what signals it (the admission of the matter even for the future) would send to our efforts to elect Justice Bhandari the next day.  Bhushan then offered to withdraw the petition, because its dismissal would close the option of its being heard again later.   

The Seniority Norm

Once appointed to the court, Supreme Court judges in India enjoy security of tenure. They cannot be removed except by a strenuously difficult impeachment process, their tenures cannot be shortened or renewed, and their salaries cannot be altered to their disadvantage. For this reason, the second and third “Judges Cases” arguably did more for the structural independence of the judiciary in the High Courts, than for Supreme Court judges. Between 1973-78, the government tried to tamper with this independence by interfering with the “seniority norm” on the Supreme Court of India and superseding judges. Supersessions were used to punish judges who had decided against the government by overlooking them for promotion to the post of Chief Justice of India. The seniority norm has been obeyed ever since, and is a vital unwritten norm which safeguards the independence of the judiciary.

In a paper published in this week’s issue of the Economic and Political Weekly, I examine the historical origins of the seniority norm, and find that there was only weak evidence of its existence before the creation of the Supreme Court of India. In the 1950s, the successive appointment of six Chief Justices of India by the seniority norm was an aberration that had little historical precedent, and the seniority norm is probably a contemporary development.