Understanding our SC: Composition & Other Things

In a recent post on this blog, Abhinav Chandrachud discussed his recent study of the Supreme Court's composition (1985-2010) (published in the Economic & Political Weekly). In an article in the current issue of the Economic & Political Weekly (available here), Sudhir Krishnaswamy and I reflect upon Chandrachud's piece, how the data collected can be useful, and the ways in which one can develop an institutional sociology or realist analysis of Supreme Court decision-making.

Neoliberalism etc.

Frontline's latest issue on the price-rise makes a substantial contribution to the field reports on neoliberalism across the country. Neoliberalism, as an academic subject, has attracted considerable literature in recent past. It may be of interest to readers, who wish to understand the subject, to consider India's experience in this regard.

My contributions to this issue include two pieces, one on the Income Tax Appellate Tribunal's order on why Bofors' then representative in India is liable to pay income tax on the commissions received by him, and the other on redefining torture, a comparison of the Rajya Sabha report and PLBS report on the anti-torture Bill, approved by Lok Sabha.

Public Appointments: Nolan Principles

Those following the debate on the appointment of PJ Thomas as the Chief Vigilance Commissioner may be interested in the Nolan Committee Report on Standards in Public Life, submitted to the British Government in 1995. The Report has come to have much currency in British public life, and is relied upon by agencies such as the Commissioner of Public Appointments. The Report set out “The Seven Principles of Public Life”, often described as “the Nolan Principles”, which are:
1. Selflessness – Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends.
2. Integrity – Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.
3. Objectivity – In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
4. Accountability – Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
5. Openness – Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
6. Honesty – Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
7. Leadership - Holders of public office should promote and support these principles by leadership and example.

Consultation on Sedition Laws

A consultation organised by the Centre for the Study of Social Exclusion (CSSE), National Law School of India University (NLSIU) and the Alternative Law Forum (ALF), Bangalore

In the wake of the conviction of Dr. Binayak Sen under Section 124A of the IPC and charges of sedition filed against Arundhati Roy, Varavara Rao and S.A.R. Geelani, the debate on the relevance of the law on sedition has found a new and urgent voice. The particular injustice of convicting a person who has merely exercised his constitutional right to freedom of expression has focussed the nation's attention on the colonial legacy of the sedition offence.

Section 124A was introduced by the British in 1870 and amended in 1898. It was one of the many draconian laws that were enacted to stifle any voices of dissent at that time. Gandhiji was prescient in recognising the fundamental threat it provided to democracy when he called it the 'prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.' What the law does is to criminalises those who “bring into hatred or contempt, or excite or attempt to excite disaffection” towards the state. The law, however, carves out an exception for disapprobation or criticism of the government that does not lead to exciting hatred, contempt, or disaffection. Some of the most prominent persons charged with sedition under this law include Bal Gangadhar Tilak and Mohandas Gandhi. The Supreme Court of India in the Kedar Nath case has upheld the constitutional validity of the law, but clearly distinguished between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence. The judges also observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality. However, in practice, the sedition law continues to be used against dissenting voices including journalists, writers, intellectuals, and human rights activists across the country.

The time seems apposite to have a discussion on this outdated offence and move in a concrete sense towards repealing or amending the law. By so doing we would be ridding Indian democracy of a provision that has no place in a country that prides itself on a Constitution that guarantees to all its citizens the fundamental right to dissent.

The objective of the Consultation is to discuss
• The experience with the sedition law in India and how it is being used to target journalists, intellectuals, writers, human rights activists and critics of the government
• Analyse the sedition offence within the framework of the Constitution
• Engage with comparative jurisdictional experiences on sedition and law reform
• Examine the sedition law within the frame of international law

Based upon these viewpoints, the consultation will aim to make out a case for either the repeal or the amendment of the law through a policy paper which can serve as the basis for a law reform effort by concerned parliamentarians or members of civil society.

Date: January 29th, 2011 (Saturday)

Venue and Address: Training Centre, National Law School of India University, Nagarbhavi, Bangalore 560072

Schedule:

9.30 a.m.- Registration

10.00 a.m.: Introductory Remarks: Dr. S. Japhet (Coordinator, Centre for the Study of Social Exclusion, National Law School of India University, Bangalore)

Session I: 10:15 a.m. to 11.30: The Historical Context of the Offence of Sedition

Chair: Professor Hasan Mansoor, People’s Union for Civil Liberties, Karnataka

Speaker: Ujjwal Kumar Singh (Professor, Department of Political Science, Hindu College, University of Delhi. Prof Singh is also the author of two highly acclaimed books “Political Prisoners in India” and “The State, Democracy and Anti-Terror Laws in India”)

Title: Rajdroha in Colonial and Postcolonial Times

Speaker: Siddharth Narrain (Legal Researcher, Alternative Law Forum, Bangalore)

Title: Disaffection and the Law: A History of Sedition Laws in India


Session II: 11-45 – 1.30 "Will the Law of Sedition be the Death of Free Speech?"

Chair: Chair: Arvind Narrain, Alternative Law Forum

Speaker: Jawahar Raja (Advocate, Delhi)

Title: Criminalising Speech: Suspect Communities and Excepted Persons


Speaker: Jagadeesha B.N. (Advocate, Bangalore)

Title: Dissent and the Laws of Sedition: The Karnataka Experience


1.30- 2:30 pm - Lunch

Session III : 2:30 pm- 3:30 p.m.- Comparative Jurisdictions: The Status of Sedition in Other Countries

Chair: Siddharth Narrain, Alternative Law Forum

Speakers: Kalyani Ramnath and Akila R.S. (Visiting Faculty, National Law School of India University, Bangalore)

Title: Sedition Laws: Global Trends, International Experiences

Final Session

3.30- 5.30 - The Way Forward

Tributes: For and by KG Kannabiran

The Hindu recently carried a tribute to KG Kannabiran by Menaka Guruswamy which draws on her personal encounters with the activist lawyer. In her tribute, Guruswamy refers to the passing of K. Balagopal and the work that Mr. Kannabiran and Mr. Balagopal did together in many fora, including the PUCL. When K. Balagopal passed away, Mr. Kannabiran wrote a moving obituary (published in the EPW in November 2009) that also documented many significant milestones in the history of the human rights movement in India. Re-reading Mr. Kannibiran's tribute, strikingly titled "A One in a Century Rights Activist," one finds many examples of how these two activists joined forces to combat the forces that they felt were vehicles of injustice.

Social Rights in India

It is widely believed that the Indian Supreme Court adjudicates social rights. The familiar narrative, about the rise of the Court during the post-Emergency years and the innovations of the PIL era, requires no elaboration. In a new article, available here, and forthcoming in the International Journal of Constitutional Law (I-CON), I challenge this narrative and present a detailed study of the social rights jurisprudence of the Indian Supreme Court. Before embarking upon my own thesis, I show why the literature on social rights in India is deeply flawed and has presented an inaccurate account of our jurisprudence. I then introduce a new distinction in the social rights debate between what I call systemic social rights and conditional social rights. This thesis goes against the literature on social rights in India, and suggests that the paradigm that constitutional lawyers currently adopt to study the South African experience with such rights (weak v. strong form review) cannot adequately grasp the Indian experience. The conditional rights approach is, I argue, a new form of social rights adjudication, and is a rare private law model of public law adjudication. I also discuss in detail what implications follow from the conditional social rights thesis.

The abstract is as follows:

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This Article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This Article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.

I would be extremely grateful for comments.

OBITUARY: Former Chief Justice of India, A.N.Ray [Guest post by K.N.Bhat, Senior Advocate, Supreme Court]

A.N.Ray CJI – an unwitting visionary?

Justice Ajit Nath Ray, who retired as Chief Justice of India on 28.1.1977, died on December 25, 2010 at the ripe age of 99. On the date of his retirement when memories of his tenure as CJI were fresh, he was not a popular man; the Bar decided not to offer him a customary cup of farewell tea. Why recall him after 34 years of his uneventful retired life? I, having been part of those tumultuous days, feel that the little that is recorded of those days do a lot of injustice to truth. At any rate one honest version should be recorded for posterity’s sake - may be as an invitation for another honest contradiction.

Justice Ray was a stickler to convention and etiquette and a no nonsense judge. He was no respecter of faces. Needless to say that he was scrupulously honest and hence universally respected. He did not hesitate to record his dissent even when he was a loner as he did in the Bank Nationalisation Case (1970) and in the Privy Purse Abolition Case (1971) – both – 11 judge Benches - and in the historic Kesavananda Bharati case he was one of the six dissenters.

To the surprise of all, in April, 1973 Justice Ray, the consistent dissenter, in favour of the Government, was appointed Chief Justice of India superseding three Judges senior to him. Protests from the Bar were spontaneous and overwhelming. Though seniority as a criterion for appointing a CJ was not part of the Constitution nor of any law, it was a convention followed since 1950 – a sort of home made device to minimize executive interference. Whether that contraption with a conveyor-belt morality of ensuring the first to be placed reaches the destination first – is good for the judiciary has for long been a controversial question. Perhaps, with a more satisfactory machinery of selection in place ‘seniority’ should be dispensed with in favour of suitability as it is in the rest of the civilized world.

However, no one accused Ray J of scheming. And no one ever doubted that if he were to decline the offer many down the line would have grabbed the chance – the Government’s move to supersede would not have been frustrated.

Mr.B.Sen, the senior most among the living Senior Advocates of India in his recently published memoirs recalls, “Chief Justice A.N. Ray was an able and upright judge, quick in decision making and an able administrator. During his tenure as Chief Justice, a good deal of prevailing malpractices concerning listing of cases were sought to be removed. As a man, he was humble, scrupulously honest, deeply religious and a loyal friend. He was somewhat reserved and he made no effort to placate the vocal members of the Bar who were critical of him.” Such of us who were eye witnesses to that era endorse Sen.’s views fully.

With that great Jurist Judge K.K.Mathew as his constant companion, Ray CJ was a party to many landmark judgments. Sample excerpts from a few of his judgments – as a puisne judge and as CJI - may help shed light on his judicial personality.

Bennett Coleman & Co. v. Union of India & Ors. (1973) 2 SCR 757, 759
“It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.”

K. Ramadas Shenoy v. The Chief Officers, Town Municipal, Council, Udipi & Ors. – (1975) 1 SCR 680
“It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by municipalities in such cases.

The Courts enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.”

In this statement of law lies the genesis of PILs of the future.


Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Anr. (1975) 2 SCR 674
“The Government is a government of laws and not of men. It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. This privilege arises because it is the Government which is trading with the pubic and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. Hohfeld treats privileges as a form of liberty as opposed to a duty. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with any one but if it does so, it must do as fairly without discrimination and without unfair procedure. Reputation is a part of person’s character and personality. Blacklisting tarnishes one’s reputation.”

His judgments during the emergency also highlight the importance of the principles of natural justice.

Unfortunately however he is remembered for the judgment in ADM, Jabalpur v. Shukla,(1976) a case in which the crucial issue was whether the source of right of a person to life and personal liberty was Art.21 of the Constitution and if so when that Article stood suspended during an emergency, whether a person’s life or liberty was solely at the mercy of the executive?.

Appeals against anti-emergency Judgments by over a dozen High Courts were about to be heard by a five-member Bench consisting of A.N. Ray, CJ, M.H. Beg and three other junior judges. The Bench was obviously hand picked. Late Nani Palkhivala reportedly refused to appear for the citizen before this Bench – he felt that it would be a futile exercise. Fali Nariman in his memoirs recounts how late C.K. Daphtary, a doyen of the Bar persuaded Chief Justice Ray to reconstitute the Bench on some acceptable basis like seniority. The implication was that in the Bench of senior most five, Khanna Chandrachud and Bhagwati JJ would also be included - the expectation of Daphthary, Palkhivala and others being that the trio would decide against the government. “Show me the judge and I’ll tell the law” was as valid a saying then as it is believed to be now.

If the original formation of the Bench was for securing a verdict for the emergency regime, why did the CJ agree to radically change the composition? Was it because in reality he was indifferent to the out come (– hard to concede -) or was he confident that the substitutes were also ‘safe’ fielders? As it turned out to be, Khanna, J. was the sole dissenter for the citizen.

Constant ostracism coupled with stage managed inducers like fake attempt on his life, made Ray CJ to feel hounded and paranoid. He was lead to believe that outside the government, he had no friends. Obviously at the beckoning of the government he embarked upon a mission impossible to over turn the ‘basic structure’ theory established by the 7:6 majority in Keshavananda case; that verdict would be an impediment to the grandiose mutilations made and proposed to the Constitution. He was accused of allowing the executive to transfer ‘inconvenient’ judges. At a time when all freedoms were in limbo, even rumors could add up to make Ray CJ the judicial face of the hated emergency - unworthy of a farewell tea.

A brief recounting of the important events and developments after the declaration of emergency on 25th June, 1975 would be useful.

The electoral laws were amended drastically with retrospective effect to nullify the disqualification of Mrs. Indira Gandhi. In addition, in August, 1985, the Constitution (39th Amendment) Act was passed under which a new Art.329A was added. According to this Article, election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election shall be called in question except before “an authority”. Any pending Election Petition would abate. On November 7’ 1975 the Supreme Court set aside the judgment of the Allahabad High Court disqualifying Mrs.Gandhi. On 1st September, 1976, the Constitution (42nd Amendment) Bill was introduced with the provisions, inter alia, to amend Article 368 dealing with the power of the Parliament to amend the Constitution. The amended provision would remove all restrictions on the parliament’s power of amendment -.in effect Kesavananda Bharti’s basic structure principle would be no longer good law. A new chapter for the constitution of new Tribunals, though innocent-looking were sinister in design; they were to render the existing judicial system completely ineffective. The concept of All India Judicial Service introduced by that amendment was to have the Judiciary entirely under the control of the Executive as was the case in respect of other All India Services. The amending Bill was passed and it became a law.

This was the scenario when the year 1976 ended. In January, 1977, the emergency regime became smug enough to announce general elections to the Lok Sabha. The elections were expected to be sham and the programmes of total demolition of a democratic set-up were postponed to an era after elections – all to give a colour of legitimacy. The complacence was generated partly by the ‘jee huzoor’ intelligence wing that had no option but to please the masters and supported by the confidence that the Judiciary also stood subjugated.

What would have happened if the ADM Jabalpur case were to be decided against the Government? Sanjay Gandhi was known to be ruthless and rash. Was there anything anybody could do if the Courts were to be shut down? The answer was No. Perhaps the pliant judiciary unwittingly contributed to the end of the illegitimate regime though none of the judges – not even A.N.Ray CJ - could be accused of ‘stooping to conquer’ by feigning surrender.

On retirement Ray, CJI, dedicated his life to the service of Sri Rama Krishna Mission, with whom he had long association. It is said that in 1980, after Mrs. Indira Gandhi returned to power, A.N. Ray was asked if he would agree to be our Ambassador to the USA or High Commissioner to the U.K. following the precedents of other worthies. Ray CJ declined the offer – to him the office that he last held was the ultimate.

Why remember him now? One of the many answers is, while skeletons start tumbling the day after a Chief Justice retires, Ray CJ had ‘nothing to declare’; the second one is his story is in reality the history of our Supreme Court – of the entire judiciary during the emergency – which is worth recording.