Thursday, November 19, 2015

Virtual Police Station and Thoughts on Design and Communicating Law

For those interested The Commonwealth Human Rights Initiative has a new website called Virtual Police Station that provides a detailed tour of an Indian police station including what victims, accused, and witnesses should expect when they visit. The information provided may not be new to lawyers, but I do think formats like this provide a valuable training tool for law students, the police, and others as a quick tutorial of what proper expectations of the police should be. The idea of placing one in an actual police station is compelling, even if this high definition format may limit the reach of this tool to those in India without very fast internet connection speeds. One could see someone creating a similar tool for explaining court processes.

One of the more interesting academic fields right now I think is about how to communicate legal information most effectively to different types of audiences. Sometimes multi-media experiences like the Virtual Police Station may be most effective, while in other situations simple symbols may be more appropriate. In the U.S. Stanford has a Legal Design Lab, which is a collaboration between its law school and design school.  Much of the US work is looking at how technological changes provide opportunities to interface with customers and populations with legal needs in new ways.  In India you already see this taking off for small business customers with sites like Vakil Search which provides a relatively clear interface for its customers online. The simplicity and approachability of the interface is undoubtedly an attraction to this site and similar ones like LegalZoom in the US. 

Going forward, I think answering design questions will be critical to how the law is explained to and understood by citizens, law students, bureaucrats, and even lawyers and judges. High constitutional theory is interesting to discuss, but most legal problems are more mundane and the question is rather how to communicate what the law is and meet people's legal needs as efficiently and effectively as possible.

Friday, November 06, 2015

Reforming the Collegium: Issues at stake

As the Supreme  Court's Constitution Bench continues its unusual consequential  hearing on the question of reforming the Collegium to recruit Judges on November 18, the doubts and misgivings expressed by the bench as well as the counsel on November 3 and 5 on the scope of reform itself stem from interpretations placed on the judgments in the Second and Third Judges cases.  Do the judgments in these cases, decided by a larger bench, give scope for reforming the collegium by a smaller bench of five judges?   

It was because Justice Khehar, the presiding Judge, emphasised the need to reform within the broad parameters laid down by the previous nine-Judge benches in these cases.  One question is whether it is permissible to expand the area of consultation, so that the Collegium can be asked to consider the inputs of an advisory committee comprising the key stake-holders, such as representatives of the bar, the civil society, retired Judges etc. 

On November 3, there were divergent views among the counsel who made submissions on this question, and the bench did not reveal its stand on it.      On November 5, the uncertainty continued with no clarity on whether the Court will be within its competence to lay down a guideline constituting a committee of consultees, with which the Collegium could seek guidance, which is not binding on the Collegium.
The answer to this question perhaps is available within the October 16 judgment delivered by Justice Madan B Lokur.  In it, Justice Lokur refers to the AG, Mukul Rohatgi’s reliance on an interview given to Frontline (to me) by the former CJI, and the presiding judge and author of the Second Judges case, the late Justice J.S.Verma in 2008 to suggest that even he favoured reconsideration of the judgment written by him.  
Rohatgi found my interview  with Justice Verma useful to persuade the bench that there is indeed a case for referring the matter for reconsideration of the 1993 judgment by a larger bench.  That he was not successful in doing so was due to the different interpretation placed by Justice Lokur on the same interview.
The remarks of Justice Verma as reproduced in Frontline, and relied by the AG, are as follows:
My 1993 judgment which holds the field, was very much misunderstood and misused. It was in that context that I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable.  Therefore, some kind of rethink is required”.
According to Justice Lokur, the misunderstanding which Justice Verma referred to in his interview to Frontline, is not due to any lack of clarity in the decision rendered by the  Supreme Court in the Second Judges case, but due to the discomfort in the “working of the judgment”.   

Justice Lokur wrote: “The executive continues to have a vital role to play and in some cases, the final say in the appointment of a judge – the misunderstanding of the judgment is due to the completely and regrettably defeatist attitude of the Union of India and the States or their view that in the matter of appointment of Judges, it is their way or the highway.”

To quote Justice Lokur:

“The Constitution of India is a sacred document and not a Rubik’s cube that can be manipulated and maneuvered by the political suit its immediate needs”. 

Justice Lokur again relied on the same interview given by Justice Verma to Frontline, to hold that the Constitution is a flexible document, and neither the President nor the CJI is precluded from taking the advice of any person, lay or professional.    
To illustrate this view, Justice Lokur reproduced from the interview, the following answer given by Justice Verma to the question on how, during his tenure as the CJI, appointments took place: 
“For every Supreme Court appointment, I consulted senior lawyers like Fali S Nariman and Shanthi Bhushan.  I used to consult five or six top lawyers.  I used to consult even lawyers belonging to the middle level.  Similar consultation took place in the case of High Courts.  I recorded details of every consultation. I wish all my correspondence is made public.  After the appointment, why should it be secret?  If there is a good reason to appoint the Judges, then at least the doubts people cast on them even now will not be there.  And if there is a good reason why they should not have been appointed, then it would expose the persons who were responsible for their appointment.”

As someone who recorded that interview and transcribed it, I was amazed, after reading Justice Lokur's judgment,  that two different interpretations of that interview were advanced during the hearing. As the CJI, Justice Verma was the head of the Collegium beween March 1997 and January 1998, and the opinion in the Third Judges case was delivered after his retirement.  It was clear that he did not find the 1993 or the 1998 judgments as limiting the scope of consultations by the CJI to only the Collegium members.  

More important, the Bench should use this opportunity of consequential hearing on collegium, to open the collegium records between 1993 and 2015 to public scrutiny, and not wait for 30 years to expire, to release it to the archives, as suggested by some counsel.  That will be consistent with Justice Verma's views which favoured release of his correspondence as the CJI to the public scrutiny. 

In fact, I am somewhat puzzled by the headline in one of the newspapers, which said, "SC throws open collegium system to public scrutiny".  Nothing of that sort has happened yet.  The SC has only invited suggestions for reform from the public.  It may be unusual. But by itself, it does not suggest any indication of willingness to carry out drastic reform.  The invitation to the public, to make suggestions, is an after-thought, to meet the criticism that the bench has chosen to consider only the views of a select few counsel, that is, the legal eagles in the Supreme Court.  A genuine scrutiny of collegium is possible only if the minutes of the collegium from 1993 to 2015 are made available to the public or to scholars.   After all, what justification can be there to keep them under wraps for 30 years, if the contemporary records of the collegium, after the proposed reform under the category of transparency, are to be made available to the public under the RTI or on the website?   

Thursday, November 05, 2015

Call for Submissions: The Indian Journal of International Economic Law

The Indian Journal of International Economic Law is now accepting submissions for its upcoming issues – Volume 8(1) and 8(2).

The Indian Journal of International Economic Law (IJIEL) is a law journal published by National Law School of India University, Bangalore (NLSIU) under the patronage of the Indian government sponsored chair on WTO Law. The Journal is oriented towards publishing academic work that considers the legal issues in the field of international economic law from a comparative perspective and/or the perspective of the developing world. The IJIEL accepts academic submissions in the form of articles, notes, comments or book reviews. The Journal is already indexed on Manupatra and will be available on HeinOnline by April, 2016.

Volume 8(1):

Continuing with the past tradition, Volume 8(1) will be a general edition dealing with a host of legal issues in the field of international economic law, which includes multidisciplinary research concerning the WTO, trade laws at various levels of government, financial institutions, regulatory subjects such as taxation and competition policy, various services sectors such as banking and brokerage, linkages to human rights and cultural problems and international commercial arbitration.

Volume 8(2):

This year, considering the contemporary relevance of the Trans Pacific Partnership, IJIEL is coming up with a special issue on the “Implications of Trans-Pacific Partnership”. The Trans-Pacific Partnership is expected to reshape business practices and trade law regime across the world. We have already received a very enthusiastic response to this edition and hope the student community would also want to contribute to the scholarship on this contemporary topic.

IJIEL is now accepting submissions for both the issues under the following categories:

1.     Articles (5000 to 12000 words) must deal with a theme of interest or importance comprehensively and are expected to show an extensive coverage of existing literature and a high level of analysis.                

2.     Essays for the Law in Focus section (3000 to 5000 words) must concisely analyse contemporary legislations, landmark treaties or other specific issues in international economic law of a contemporary nature.

3.     Case Notes, Legislative Comments and Book/Article Reviews (2000 to 7000 words).

The Editorial Board invites submissions for Volume No.8(1) and 8(2) of 2016. The Journal follows a rolling submissions policy and the deadline for the forthcoming volume is 25 March 2016.

The submissions received after this date shall be considered for the next volume. The submissions must relate to any of the broad themes mentioned above or any other aspect of international economic law, with a focus on developing country perspective.

For any queries, contact

Chief Editor: Shimal Kapoor                                        
Convernor: Lavanya Chawla

Tuesday, November 03, 2015

Closure of private schools and the right of children to education: A Rejoinder

(Guest Post by Professor Geeta Kingdon)

A post on Law and Other Things by Dolashree Mysoor on 12th Oct 2014, commenting on my Opinion-Editorial in Times of India (TOI) of 26th August 2015, claims that my article advocates deregulation of private schools. Since my article does not advocate deregulation, Mysoor has set up a straw-man argument.

While my TOI article alleges that, in name of the RTE Act, state governments are imposing infeasible recognition norms and undue interference on private schools, it calls the fulfilment of infrastructure norms “desirable”, and advocates that government pays “subsidies to low-fee schools to help them become RTE compliant”.  What it asks for is lighter-touch regulation, and for sheltering private schools from over-regulation, in order to preserve whatever quality of education exists in private schools.

Mysoor has listed the infrastructure norms of the RTE Act, such as office room and all-weather class rooms, furniture, playground, books, water, girls’ and boys’ toilets, etc., and all will agree (as does my article) that these are desirable for the comfort/well-being of children.  By calling the RTE recognition norms “highly contested”, Mysoor’s post is making two errors. Firstly, it shows a lack of analytic clarity between the desirability of the recognition conditions (on the one hand) and their implementability given the reality of private schools (on the other).

The second error is: not realising that the difficulties of norms-compliance spring not so much from the physical infrastructure norms stipulated in the schedule of the RTE Act itself but from a plethora of other, more difficult, recognition conditions foisted on private schools in the name of the RTE Act in states’ Government Orders.  It is unfortunate that Mysoor has not paid attention to the careful wording in my op-ed, which says: “Many state Rules and Government Orders­ issued in the name of implementation of the RTE Act prescribe norms, standards and conditions for private schools' recognition which are overly restrictive or infeasible, especially for low-fee private schools, which are the vast bulk of private schools in the country”. In a 900 word article (only one-third of which was on the consequences of the recognition norms) – it was not possible to elaborate, but this point can be substantiated here.

Consider the example of Uttar Pradesh. Its two Government Orders (GOs) both dated 8th May 2013 (for English Medium schools; and for Hindi Medium schools) prescribe about 40 different conditions that a private school must fulfil in order to obtain government recognition, and most of these are difficult for existing schools and for new low-fee schools to fulfil, e.g. for rural private unaided schools in Uttar Pradesh, where the median fee is Rs 150 per month.

Most private schools would face problems in complying with many of these norms. To take a few examples, many low- and high-fee private schools run in rented buildings, and it is rare for a landlord to agree to a 10 year lease, and many school landlords also do not agree to sell their building.  To have separate rooms for Principal, office and staff, is infeasible in many small private schools and even the government schools frequently do not have these or have furniture for students despite the mighty financial backing of the government. To require schools to open themselves to inspection by any government official at any time will lead to an Inspector Raj. Forbidding private schools from raising fees by more than 10% once in three years is imposing an inequitable rule which allows govt teachers’ salaries to rise generously each year but restricts private school teachers’ salaries to rising only once every 3 years. The requirement that all schools be non-profit is well-intentioned but theoretical. It relies on the charity of rich philanthropists to establish schools, who are willing to give free land and resources (e.g. to build schools, buy furniture, etc.) all for free. Disallowing profit in education will either lead to largescale school closures or, more likely, spawn another source of corruption and hypocrisy: the pretense that all schools are running as non-profits.

If the recognition conditions are seriously implemented, scores of thousands of low fee private schools are likely to close, leaving the burden on state governments to provide education to millions more children, for which the state governments have scant financial capacity, especially since the per-pupil-cost of providing education in the govt schools is many times that in the private sector, mainly because average teacher salaries are about 20-25 times as much in govt schools as in private schools (Rs. 1500 pm in rural private schools in some states and Rs 40,000 pm in govt schools (see Vimala Ramachandran’s NUEPA study of teachers in 9 states in 2015).

In order to understand the impact of the RTE norms on private schools in India, it is necessary to understand the nature of such schools.  31% of 6-14 year olds in rural India are studying in private schools (ASER, 2015) and the evidence on their average size – total enrolment 191 students from class 1 to class 8 (DISE, 2014) – and their median fee levels (Rs. 300 per month in rural areas, in NSS 2014 data) suggests that the majority of private schools are small scale, low revenue and low-budget operations, that can ill-afford the cost of compliance with the laid recognition conditions.

Does this mean that government should allow schools to run in unsafe buildings, or without fire-fighting appliances, as in the past, and as many govt schools currently run? My Times of India article appeals that, instead of closing down the very large number low-fee schools that do not have the resources to comply with the norms, the government “needs to take a facilitative rather than a punitive approach, perhaps with subsidies to low-fee schools to help them become RTE compliant”. 

Some states are very dependent on the private sector to deliver basic education. For example, private schools cater to 52% of the children of rural Uttar Pradesh (ASER, 2014) and thus are an indispensable partner in imparting education.  If these lakhs of low-fee schools close down, the burden of providing education to displaced children will fall on the government which it could not easily shoulder, especially as the per-pupil-cost in the govt school system is far greater, due to teacher salary being 20-25 times higher in government than in private schools. These realities must temper the idealistic fervour of purists.

Far from establishing neighbourhood primary schools, as they are legally obligated to do under section 6 of the RTE Act, many states are closing down govt schools where total enrolment has fallen below 20 students due to parents abandoning govt schools: according to newspaper reports, in 2014-15, about 31,000 schools in Rajasthan, Maharashtra, Chattisgarh and Orissa were closed down (or merged with secondary schools) due to being economically unviable.  In the context of large-scale closure of govt schools and a rapidly increasing child population, closing down private schools for non-compliance with RTE norms is doing worse than throwing the baby out with the bath-water – it is denying children their right to education, paradoxically in the name of an Act that avows to secure children’s Right to Education! 

Mysoor and others who are genuinely concerned with securing children’s right to education must work to prevent such a terrible outcome, by persuading governments to financially help the low-fee private schools become RTE-compliant.

Professor Geeta Kingdon holds the Chair of Education Economics and International Development at the UCL Institute of Education, University College London. She is also President of a registered society non-profit secondary school in India.

Monday, November 02, 2015

Who Will Save Us from Judicial Recusal? -- Upendra Baxi

Such is the gravitational pull of the issue of the constitutional validity of the NJAC decision, replete with surprise, that the issue of judicial recusal in certain situations is not discussed at all. But we should recall that NJAC decision is made possible only by a primary ruling concerning when and indeed whether individual Justices should recuse themselves. 

By a long standing convention, recusal whether by the concerned Justice or at the instance of the Bar, is an individual affair; the Court as an institution is not involved. The institutional interest becomes of course engaged when there is allegation of pecuniary bias or any other possibility of conflict of interest. Lawyers may exonerate, however, the possibility of even pecuniary bias by stipulating that they have complete faith in a Judge, as happened when Justice J.C. Shah disclosed the puny shareholding he had in the affected banks in the 1970 Bank Nationalization Case. Does this stand for a wider proposition of law/convention: when parties unanimously so stipulate, there is no pecuniary bias or conflict of interest?

But it was never a matter of lis or constitutionality, till the advent of the 2014 decision in Subrato Roy Sahara; there Justice Khehar (in which Justice Radhakrishnan agreed) took the lead to confront the convention with the judicial oath of office under the Third Schedule of the Indian Constitution. His Lordship) strongly deprecated the recusal convention as the essence of “[C]alculated psychological offensives and mind games” which needs “to be strongly repulsed” and recommended a “similar approach to other Courts, when they experience such behaviour". They further held that: “… not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will”. 

Justice Khehar followed his own logic in the NJAC Case: “A Judge may recuse at his own, from a case entrusted to him, by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified”. The irony is lost in the NJAC decision whose strength lies in a robust defence of the judicial collegium reinforced by a rigorous approach towards respecting conventions (following judicial precedents is held to be a convention) in constitutional interpretation and change!

There a three judge bench referred the matter to a five judge Bench, which was constituted by the CJI (on 7.4.2015) comprising Anil R. Dave, Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, JJ; Justice Anil Dave recused himself and the CJI substituted Justice Khehar as presiding judge (on 15.4.2015). Apparently, Justice Dave recused himself because he became an ex officio Member of the National Judicial Appointments Commission, on account of being the second senior most Judge after the Chief Justice of India. Thus arose a piquant situation: as Justice Khehar demonstrates, Justice Dave was a member of the Judicial Collegium when he was on a three judge Bench and became a member also of the NJAC; and so was the constitutional destiny of Justice Khehar and indeed all seniormost justices of the SCI! In fact, all Justices whether or not potential members either of the Collegium or the NJAC, could be said to be officially interested in the outcome that retained the power of elevations ( and transfer of High Court Justices) unto themselves! 

To reiterate: recusal was denied by Justice Khehar in Subrata Roy Sahara where (speaking for Justice Radhakrishnan and himself); he ruled that it is an appropriate remedy when pecuniary bias is demonstrated but aside from this exception the Third Schedule does enjoin a constitutional duty to adjudge all cases and controversies coming before the SCI without ‘fear and favour’. Was a constitutional convention thus made subject to judicial review process and power?

In the NJAC decision, Justice Chelameswar and Goyal were further somewhat baffled by the petitioner’s submission: was it the “implication of Shri Nariman’s submission” that Justice Khehar “would be pre-determined to hold the impugned legislation to be invalid”? But if so, “the beneficiaries would be the petitioners only” as the respondent government of India had no objection to the continuance of the Justice.

On the wider question of institutional or official bias, enshrined by the Supreme Court itself on the Indian administrative law, Justices Chelameswar and Goyal ruled that “Judges of this Court are required to exercise such “significant power”, at least with respect to the appointments to or from the High Court” with which they are associated. If accepted, the argument of Shri Nariman, they said, “would render all the Judges of this Court disqualified from hearing the present controversy”. This was not a “result” legally permitted by the “doctrine of necessity”. 

Agreeing with 1852(Dime) and 1999 (Pinochet) House of Lord Opinions, Their Lordships drew a distinction between ‘automatic’, considered (non- automatic), and conscientious recusal. Justice Kurian, however, specifically urges that “a Judge is required to indicate reasons for his recusal” to promote transparency and accountability which stem from the “constitutional duty, as reflected in one’s oath”. This would also help to “curb the tendency for forum shopping’, more so because (as Justice Lokur observed) judicial recusal applications are “gaining frequency”. However, Justice Lokur disagreed; finding recusal far from a “simple” affair he questioned the requirement of reasoned opinion; and urged that the issue being “quite significant” warrants fresh rules. His Lordship ruled that “it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the Bench”.

Five categories of recusal emerge from this discourse. The first is when the concerned Judge declines to sit on the Bench for reasons conveyed to the CJI. Since the litigating or general public never knows what information is thus exchanged, we will never know why such recusal occurs.

Automatic recusal, second, occurs when it is demonstrated that the Judge has a pecuniary bias; but when a judge denies these, ‘real danger’ evidence to the integrity of the judicial system as a whole has to be provided. The third category of considered recusal, though the Supreme Court does not so name it this way, occurs when there is ‘real likelihood’ of non-pecuniary bias or conflicts of interest. In both these situations, if necessary, the Brethren sit on judgment concerning the consequences of individual judicial recusal (or non-recusal) conduct.

The fourth ground of recusal is that of official or institutional bias. The NJAC decision can be said to hold either that there is no such thing as institutional bias, or the doctrine of necessity (i.e. the Court has to decide) operates; and both can be justified by the judicial oath. This is a fine point because the Court both follows (as in this case) the collective wisdom of past judicial precedents and also departs from it massively!

The fifth category is problematic in that ‘conscience’ here conflicts with express provisions of judicial oath. If the Constitution creates a duty to adjudge, may a Justice recuse himself or herself without violating that obligation? Conversely, should ‘conscience’ be considered so supreme that any Justice may on that ground escape the constitutional judicial obligation to hear and decide a matter? Should Justices resign their offices to serve the judicial conscience or should they be permitted, upon hearing the full arguments on the substance, to recuse themselves in individual cases? Should the Brethren or the Bar be allowed to override individual judicial conscience? What are the ethical obligations of the Bar in regard to recusal and do they extend to individual lawyers, in case the Justice pleads a constitutional duty to adjudicate the matter? And finally (without here being exhaustive) would a rule made by the Court and/or the legislature ever solve the issue of conscientious recusal? 

The NJAC decision presents us with a bouquet of concerns, going at the heart of the so-called public virtues of ‘transparency’ and ‘accountability. What, if anything, may one learn from other jurisdictions and the UN-Bangalore Principles of Judicial Conduct and allied regional jurisprudences? Or, all said and done, should we say with Eugene Ehrlich: ’The best guarantee of justice lies in the personality of the Judge?’

A post by Upendra Baxi, Emeritus Professor of Law, Universities of Warwick and Delhi; former Vice Chancellor, University of South Gujarat and Delhi.  Professor Baxi can be reached via comments posted on this website or through email at

Thursday, October 29, 2015

The Triumph of Judicial Independence -- Part II

The SCI did not hold that Parliament may not ever contemplate bringing about a change in the method of appointing justices; it only (and rightly) insisted that the NJAC changes did not comply with the basic structure of the Constitution as it carried the threat of a non-judicial veto over appointment and transfer of constitutional justices. The power of Parliament to amend the Constitution is recognized as plenary and its exercise is usually respected by SCI: the SCI very infrequently strikes down a legislation invalid but it only does so when it offends the Constitution egregiously by violating fundamental rights or federal principle and this is done only when it cannot be saved or read down by any rule or practice of harmonious construction. And in the history of Indian constitution at work, the SCI has rarely invalidated a constitutional amendment; that they may sometimes do so should chasten and discipline executive and legislative powers in their reading of the Constitution and judicial decisions. No “fanciful” reading (as Justice Khehar puts it) will pass constitutional muster.

But there was also an element of constitutional surprise whose happening is not determined by contingencies of party or parliamentary politics but by the felt necessities of constitutional justicing. The constitutional surprise may not appeal to political or even the public opinion in the short run, yet it becomes abiding law: the doctrine of basic structure furnishes one example, independence of the judiciary accentuating the primacy of the CJI is another. Surprise, indeed, becomes astonishment when we realize that Justices seek to normatively constrain the political supermajorities, especially when these threaten the constitutional schema.

Although not directly agreeing with salient criticism of the judicial collegium system articulated by Justice Chelameswar, Justice Kurian Joseph also joined it (in learned but the shortest concurring opinion); as the latter said the question was no longer “about the existence of the pre-existing system of appointment’ but surely the “surviving issue of grievances as to working of pre-existing system” should be examined. At the early November hearings, the matter of improvements in the existing/revived judicial collegium system will be urged by eminent petitioners, and other senior lawyers, now busy preparing their suggestions which one hopes will make the system transparent and accountable; certainly, timely disclosures of names considered and those eventually appointed will greatly increase both. The surprise is greatly enhanced by the fact that this post-decisional hearing will now result in a decision binding on the CJI and the Collegium itself.

I had suggested that instead of going before the SCI in adversary mode, the Government should have requested an Advisory Opinion (an alternative specifically suggested by me at the ‘consultation’ with jurists convened by then Law Minister, Shri Ravi Shankar Prashad and reiterated Indian Express, August 8, 2014).But the Government decided to perform some aggressive advocacy and it lost. But the cause still exists: and it may be pursued by it seizing the opportunity to urge ways in which the collegium system may be progressively reformed and avoid a possibility of conflict among the high constitutional karmacharis.

Short of the wholly undesirable total reversal of all binding precedents or the abolition altogether of constitutional courts having the powers of judicial review, all excessive claims of ‘parliamentary sovereignty’ have to be moderated by the fact that no organ of governance is ‘sovereign’ under the Indian Constitution. All—the legislature, executive, and judiciary-- have to remain content with supremacy within the constitutionally anointed sphere. Each is known to correct its errors in understating the provisions and the spirit of constitution and laws enacted under it.

The SCI has its own dark moments: the infamous Shiv Kant Shukla decision during the 1975-76 Emergency, (disavowing any judicial role responsibility for issuing habeas corpus, even on grounds of mistaken identity) was differentially reiterated ,in the late eighties, during the Bhopal settlement orders (immunizing a multinational for self-evident acts and omissions that caused the release of 47tonnes of methyl isocyanate gas); these show that despite all the caution justices may, and do, tragically err. Such dark moments may be few and far between yet impose enduring huge and poignant individual and intergenerational costs to the violated suffering humanity and the nation. But the dark moments also becloud political, bureaucratic, and even civil society conduct and action. Have we any comparative analysis, or even charts? How is individual pain and social suffering in a planned social catastrophe ever to be measured and classified? Has the SCI has on the whole found ways to correct its own mistakes compared with the executive and legislatures?

Responsible social criticism aimed at judging the judges ought to at least take account of what justices say and do, and how they procced to identify and redress errors in interpretation. Such criticism ought also to address how the other organs of governance have done similar errors and have seen it fit to overrule the past. And when constitutional errors give rise to grave and continuing provocation to the people of India, what may they do save offer collective resistance by way of peaceful civic disobedience? Does insurgent citizen constitutional action always represent a breakdown of constitutional structure or does it hold out also the positive possibility of its renainnsance? It is a good time now at least that ‘we, the people’ who gave ourselves this Constitution of liberty, equality, freedom, and justice begin to learn from the past and forge some approaches to answering difficult, and complex, questions.

There is no doubt that the legislative and executive powers are immense and can adequately serve combat impoverishment and promote just development. The future of justice and human rights, and the path of law, lie in mutual respect among governance institutions and not in a brute will to executive power.

The second part of a guest post by Professor Upendra Baxi, Emeritus Professor of Law, Universities of Warwick and Delhi; former Vice Chancellor, University of South Gujarat and Delhi. This post is adapted and enlarged from Professor Baxi's op-ed which appeared in the Indian Express a few days ago. Professor Baxi can be reached via comments on this website or through email at

The Triumph of Judicial Independence -- Part I

The Supreme Court of India (SCI) has, in October 2015, done diverse things but, most of what it has accomplished is an enriching 1053 pages 4:1 decision that nullified the National Judicial Commission Amendment and the Act (NAJC) on the ground that it violated the basic structure of the Constitution, thus invalidating the very first constitutional amendment and the law promoted by the current regime. This judgment has been a subject of controversy and debate, both among those who know the judicial process and those who have an intimate understanding of politics and how governance decisions are made. The former welcome the assertion of independence of judiciary as signifying the vitality of judicial review and endorse the Court’s view that both essential features are integrally related; the latter welcome, often silently, the pro-regime decisions but object to what they think to be anti-regime decisions. Further, they believe in parliamentary sovereignty and dutifully protest judicial usurpation or overreach.

These political actors and policy-makers have welcomed the judicial expressions of constitutional disappointment at the lack of progress towards a Uniform Civil Code and SCI-goaded action towards fulfilment of Article 44 of the Constitution. And they have silently applauded the Sanjiv Rajendra Bhatt case, where the SCI refused to constitute an SIT in a situation which it found conflated party politics with citizen and judicial activism; in remanding Bhatt to stand criminal trials, it continued to issue ‘clean chits’ to the Prime Minister and the President of BJP for Gujarat 2002 events.

These decisions read together establish again a basic truth: judicial review is a constitutional affair where decisions (notwithstanding some perverse justicing) are not given for political but juridical reason. Courts and justices are not in the business of gaining and managing competition for power to rule others (politics); rather, they exist because they seek to bring the conduct of powerful actors in state and civil society to the discipline and constraint of legal and constitutional norms (establishing the political, the basic values of a constitutionally desired order).

While this is not the space for elaborating the distinction between constitutional and party politics, this much must be noted: If the tendency of all political actors is to covert the structural into merely episodic, constitutional justicing involves conversion of the episodic into structural. Judicial reason is concerned with periodic enunciations of the basic structure; power politics, when all is said and done, is all about winning the next election. Each has an independent public sphere and should be adjudged according to its own norms and standards. Very often, Justices and political actors are on the same page as regards the security and integrity of the nation and contemporary development as neoliberalization; but to demand that Justices follow the political actors all the way makes no constitutional sense.

Some judicial decisions may be palatable to the regime or the political class; others may not be. However, the Justices decide according to the discipline and traditions of constitutional interpretation; they may sometimes be wrong (and often the justices say so in overruling the past decisions) but what the SCI rules becomes binding law under Article 141. In the NJAC decision they saw no reason to reconsider the abundant past precedents and arrive at a fresh decision, thus concluding that independence of judiciary is the essential feature of the basic structure. What the political critics of the decision forget, or choose to lay aside, is the fact that the Government has always accepted the primacy of the CJI, which was approved as the principle of judicial collegium and stands is now further endorsed. They now say that the inclusion of the executive does vitiate judicial ‘exclusivity’ but not judicial ‘primacy’ and they prefer to read the decision as enacting the former—and this remains a bone of contention between the ruling executive and the SCI.

However, all distinguished Justices agreed with Justice Chelameswar who, in his lone learned dissent, maintained that there was no “difference of opinion between the parties…regarding the proposition that [the] existence of an independent judiciary is an essential requisite of a democratic Republic”, nor any difference regarding the “proposition that an independent judiciary is one of the basic features of the Constitution of India”. However, the difference concerned whether in enacting NJAC Parliament violated any essential feature or basic structure; Justice Chelamaswar was not able persuade his Brethren that the NJAC was constitutionally valid. 

The majority opinion penned by Justice Khehar ruled that ‘consultation’ in Articles 214,217, and 222 always meant an independent judiciary and primacy of the CJI in the process, now exercised through a judicial collegium. And Justice Madan Lokur, in the long concurring opinion of about 300 pages, even went to elaborate it as pre-constitutional virtue. If this is so, no Parliament may amend the constitution so as to take away, abrogate, or destroy this aspect of the basic structure. The Constitution may never be amended, as the majority ruled, to say that the “manner of selection and appointment” of Judges to the higher judiciary” is not an ‘’integral component” of “independence of the judiciary”.

The inclusion in the NJAC as a member of the Law Minister, and of the Justice Secretary as its convener, was declared as not ‘sustainable in law’ because this would bring the Union executive into full play whereas their role was constitutionally confined to providing to the Collegium any adverse security or criminal intelligence reports. The SCI also invalidated the membership by ill-defined ‘eminent persons’; though the Court was generally in favour of the principle of public participation in civic and political affairs. Justice Kurian Joseph described “eminent persons” who denied any role in judicial appointment were now to ‘suddenly’ assume “Kafkaesque proportions” and acting in concert were capable to “paralyze the appointment process, reducing the President and the Chief Justice of India to ciphers for reasons that might have nothing to do with the judicial potential or fitness and suitability of a person considered for appointment as a justice”.

Moreover, this inclusion offended the basic structure also because the State itself was the largest litigant and public confidence in courts and justices will erode, particularly in their impartiality, were the executive to have any direct role in judicial elevation and transfers. The NJAC “does not exist under law’, pithily, observed the learned Justice and asked “Why then write the horoscope of a stillborn child!” Justice Goel also held the NJAC invalid because there “may be criticism even against discharging of judicial functions by the aggrieved parties or otherwise” but that does “not justify interference with the judicial decisions”; such “criticism can be against the working of any system but the systems can be changed only as per the Constitution: and efforts “to improve all systems have to be continuously made”.

The first part of a guest post by Professor Upendra Baxi, Emeritus Professor of Law, Universities of Warwick and Delhi; former Vice Chancellor, University of South Gujarat and Delhi. This post is adapted and enlarged from Professor Baxi's op-ed which appeared in the Indian Express a few days ago. Professor Baxi can be reached via comments on this website or through email at

The Kania Affair: A Collegium of Nehru, Patel, and Rajaji Debates the First Chief Justice

In last week's Mint, I discuss an early controversy over judicial appointments. Shortly before Republic Day in 1950, Nehru had second thoughts about the first chief justice. But Patel pushed back strongly against Nehru's demand that the judge resign. In his last hours as governor general, Rajaji convened a meeting to resolve the issue.

Friday, October 23, 2015

Reforming the Collegium

In this recent piece in the Indian Express I argue that with the collegium system restored the primary question now turns to how to improve it.  To be clear, I take no position in the piece (or here) whether the judgement was justified or not or whether the collegium system is a good idea or not - plenty of others have been writing on that.

However, there is no doubt that the collegium process has serious weaknesses - and even the judges admit it needs at least limited reform. The majority in the NJAC case suggests in its judgment that while it would violate principles of judicial independence for "eminent persons" to be empowered voting members on a commission that selects judges, they could serve in an advisory capacity. The judges set a date for a hearing in early November to gather input on how to improve the collegium system and I would imagine this suggestion within the judgement will be a primary point of departure for discussions of reform.

It is still to be seen how open the judges will be to major reforms in the existing collegium system. While there has been much criticism of their judgement striking down the NJAC amendment there has also been significant support, perhaps lessening the political need to concede any significant reform in terms of transparency, accountability, or input. 

Nonetheless, clearly much could be done. The collegium has always been understaffed, lacked sufficient outside input, and been exceedingly opaque. In fact, one of the difficulties in suggesting reforms is how little we know about how it actually functions in the first place. In the Express piece I suggest appointing eminent persons in a manner much like that envisioned by the NJAC amendment to advise the collegium throughout the appointment process. They would not be voting members, but still be integral throughout. This would create a sort of NJAC-lite. While it probably does not make sense to make public every candidate being considered for appointment, once they reach a certain threshold of consideration - whether at actual nomination or just before this formal step - this information should be made public and comment welcomed. Serious and credible allegations against a candidate should be investigated. Certainly there could be spurious allegations towards some nominees, but these would be mostly ignored for being spurious. In fact, getting out in the open baseless accusations can expose them for what they are - improving the current situation where allegations are whispered in the hallways of the court, but never put out to be rebutted.

All of these suggestions for reform can be criticized for being fairly toothless. In the end, it's the judges who still have the power in the appointment process under the NJAC judgement. They can appoint a judge who seems to be of lesser quality or where serious unanswered questions have been raised about their integrity. They don't have to listen to any of the suggestions of an advisory committee. Where's the accountability? Where's the democracy? Why even bother?

Indeed, many of these reforms will only gain  traction if a culture of openness to input and criticism develops within the collegium. That said these mechanisms should provide constant low-grade pressure to push the process towards accountability and decision-making based on some semblance of reason-giving. They also have the chance to set the groundwork for even more substantial outside input in the future. Let's see how serious the Court really is about reforming an appointments system that everyone knows needs to be improved.

Tuesday, October 13, 2015

Guest Post: Is RTE based regulation choking quality education?

The following is a guest post by Dolashree Mysoor, who is a Research Associate at the Azim Premji University, and works with the University's Hub for Education Law and Policy (hELP). hELP is engaged in research and intervention in the area of education law and policy in India. 

A recent article by Professor Geeta Kingdon makes a case for de-regulating private schools under the RTE Act on the grounds that this law restricts autonomy of private schools and that thousands of low cost private schools face closure. This debate is not new in the Indian context. However, these arguments come without a view on the consequences of de-regulating private school education.

The RTE Act has come under severe criticism for imposing excessive regulations and penalties on private schools and that it does not guarantee educational outcomes. The reality is that India houses more than 1.3 million schools (Source: Statistics of School Education 2010-2011), and many of them pose severe risks to the health and safety of children enrolled in them. Given this picture, we need to closely examine the consequences of deregulating schools.

I argue that the push for deregulation of private schools is misplaced because it is necessary that the law ensure equal access to safe and nurturing learning environments for all children. 

Regulation under the RTE Act

What are these highly contested RTE norms? Briefly, they require schools to provide distinct classrooms, separate toilets for boys and girls, drinking water facilities, a compound wall, a library and a separate kitchen shed. Further, the RTE Act also requires schools to employ trained teachers, regulates teachers, and follow prescribed curriculum. Finally, they stipulate certain institutional mechanisms for school development. These norms are aimed at ensuring a safe and nurturing learning environment for school going children.

Schools are regulated through a process of obtaining official recognition from local educational authorities. This recognition is granted based on a school’s compliance with the law. Failure to obtain a recognition certificate or functioning without a recognition certificate attracts monetary penalties or closure of the school. This form of regulation is not new in the Indian educational context - state laws that were already in operation before the RTE Act had similar requirements.

The only difference is that RTE norms and standards are now linked to a child’s right to education under Article 21 A. They ensure access to education and prohibit harassment of all kinds. The novelty lies in the expectation that private schools will now play a part in providing free and compulsory education to children from socio-economically weaker sections.  

Another criticism of the RTE Act is that it suffers from severe implementation failures. This reason is often cited to argue that the law must be repealed. It may be important to note that failure to implement the law does not always involve a problem with the law. Repealing a law on the grounds of implementation failure will also not resolve the problem at hand. Let us consider an analogous situation, say traffic rules that are constantly violated - should traffic rules be repealed because they are not enforced?

Negating the need for regulating any type of school will allow schools that are health and safety hazards to operate. Confusing regulation of schools with the achievement of learning outcomes or implementation failure seems to obscure the need for safe and nurturing environments in schools. 

Autonomy of Private Schools

Kingdon and others have argued that the RTE Act violates the autonomy of private schools.  The reason provided is that the act places enormous constraints on running low-income private schools. This argument often confuses autonomy of schools with the power of the state to regulate them. It is based on a misinterpretation of the Supreme Court’s judgment in T.M.A. Pai Foundation v State of Karnataka [(2002) 8 SCC 481].

First, it must be noted that this case relates to institutions of higher education and therefore has limited applicability to schools. The majority judgment in this case held that private educational institutions are autonomous in matters relating to fees, admission of students, day-to-day management and employment of staff.

Second, nowhere does the Court negate the need for regulation of private institutions. Instead it seeks to check excessive regulation while maintaining minimum standards in educational institutions. The state has the power to regulate on infrastructure, qualification of teachers, prevention of mal-administration, and maintenance of proper academic standards in an institution [paragraph 54 of the majority judgment].

The argument that regulations place enormous constraints on private schools is legally untenable. Do private hospitals loose their autonomy because they are expected to comply with hygiene and safety regulations? Why, then, do educationists want to make an exception for private schools?

 Closure of Schools

Recent educational debates unnecessarily create a heightened sense of empathy for low cost private schools that may face closure or penalties on account of non-compliance with RTE norms and standards. The source of this data is unclear. The information appears to be sourced from newspaper reports that describe state governments threatening to close schools, however little conclusive evidence of actual closure of schools is available.

This claim about closure of schools is also based on ongoing litigation before High Courts, one that needs careful examination. So far, eighteen judgments have been delivered under Sections 18 and 19 of the RTE Act across all High Courts and the Supreme Court (Source: Manupatra). Of these, only 6 judgments relate to closure of schools for non-compliance with the law. Courts have consistently held that the need for recognition from the state and regulations that ensure safety in schools are not negotiable.

In the event private schools fear harassment from the government, institutional mechanisms such as courts can check overzealous and arbitrary governmental action. To illustrate, a case before the Punjab & Haryana High Court challenged two government orders that were aimed at closing down 1170 schools for non-compliance. The court quashed the two orders for reasons of procedural impropriety and arbitrary action. Further, the court directed the government to close down schools that were proved to be non-compliant upon inspection. [A.V. Public School v State of Haryana and Others (CWP No. 21269 of 2013)].

In light of the above, the push for exempting private schools from regulation is deeply problematic. We may want to ask – should non-compliant private schools that do not (or cannot) provide a safe and nurturing environment be allowed to operate?

It is difficult for us to imagine a space where any type of school operates without any regulation. The fact that government, minority and residential schools are exempt from RTE regulations is deeply problematic and requires immediate rectification. By expecting schools to meet basic conditions, the RTE Act ensures safety, dignity and a nurturing environment for all school going children. De-regulation of private schools is not an answer to the problem of declining learning outcomes. Even if empirical research shows little connection between school infrastructure and learning outcomes, we may need to employ common sense to examine whether schools need to be safe and nurturing spaces for children.

Friday, September 25, 2015

Legal Consciousness in Medieval India

One of the major challenges for Indian legal historians has been to try and understand the legal systems of pre-colonial India. For a variety of reasons, there are no surviving central court archives or large documentary repositories that scholars of Ottoman Turkey and China have drawn upon. There is some awareness of legal treatises and codes but it remains debatable the extent to which they were actually applied in everyday life or formed a part of legal consciousness. In a recent article, Donald Davis and John Nemec turn to medieval literary texts and story collections to trace the ways "law is experienced and interpreted by specific individuals as they engage, avoid or resist the law". The texts include Kalhana's Rajatarangini (The River of Kings) and Somdeva's Kathasagar (Ocean of Stories). Departing from formal studies of law and literature in medieval India, which have tried to see how far literature departs from the Dharmasastras, this article (and what I hope is a larger project) argues that in the absence of court texts and narrative legal sources, literary narratives become important sites to understand how legal ideas could be deployed and received. 

Thursday, September 24, 2015

Research Associate Position at the Centre for Policy Research Land Rights Initiative

The Land Rights Initiative at the Centre for Policy Research is looking to hire a research associate for a short term contractual period (six months subject to extension based on performance) . Interested candidates must meet the following eligibility criteria:

1. Hold Bachelor's and Law degrees from reputed institutions. A Master's Degree in Law is preferred but not required; 
2. Possess excellent research and writing skills; 
3. Have a demonstrated interest (either through academic writings or work experience) in the working of the Indian Constitution, particularly with respect to the Fifth and Sixth Schedules, and laws relating to land rights, land reform, and land acquisition; 
4. Have a curiosity to learn, a commitment to research and the ability to be a team player. 

Interested candidates should submit a resume (in line with the listed eligibility requirements), a one-page statement of interest, and a writing sample to Shortlisted candidates will be invited for an interview with the Director of the Initiative.

Candidates may familiarise themselves with the Land Rights Initiative website:, Facebook page: and youtube channel: 

Remuneration will be at par with industry standards.

Monday, September 07, 2015

Reminiscing Justice H.R.Khanna and the Emergency

LAOT is pleased to offer excerpts from the speeches of Justice J. Chelameswar and Justice A.K.Sikri at the Indian Law Institute, New Delhi, while releasing a book, on September 3.

Addressing a gathering of academics and lawyers at the Indian Law Institute, New Delhi,  Justice J.Chelameswar on September 3 released a book on Justice H.R. Khanna, co-authored by Lokendra Malik and Manish Arora.  The book, Justice HR Khanna: Law, Life and Works has been published by Universal Law Publishing, an imprint of Lexis Nexis.

Recalling Gibbon’s famous words that as long as mankind shall continue to bestow more liberal applause on their destroyers than on their benefactors, the thirst of military glory will ever be the vice of the most exalted characters, Justice Chelameswar said the late Justice HR Khanna is more remembered for his dissent in ADM Jabalpur judgment,
delivered during the Emergency, while people rarely recall the respondent in that case, Shivkant Shukla, who had suffered imprisonment.

While Justice Chelameswar underlined Justice Khanna’s contribution in Kesavananda Bharati and Indira Gandhi election cases, he said Justice Khanna’s judgment in Balmadies Plantation Ltd vs State of Tamil Nadu,  delivered in 1972 was equally noteworthy for his insights in the subject of land tenure, although he did not have to deal with the subject before he came to the Supreme Court.

While Justice Khanna demonstrated judicial statesmanship in the cases of Kesavananda Bharati and Indira Gandhi election appeal, it was in Shivkant Shukla that his courage of conviction and commitment to liberty of human beings stood out as his unique attributes, Justice Chelmaeswar said.

Justice Sikri compared Justice Khanna’s dissent in Shivkant Shukla to Victor Frankl’s tragic optimism.  Echoing Frankl’s book, Man’s search for meaning, Justice Khanna created feelings of hope through a very small window in his dissent, Justice Sikri said.

In Shivkant Shukla, Justice Khanna knew that he was in a minority; still, he wrote according to his conscience.  He wrote that the SC would correct itself; but that opportunity never came, because the judgment in Shivkant Shukla was buried by constitutional amendment, Justice Sikri recalled.

Justice Sikri said in the history of the Supreme Court, there were only two Judges who never became the Chief Justice of India, but were taller than the CJIs.  They were Justice Khanna and Justice Krishna Iyer.

Recalling the days of Emergency when he was a student, Justice Sikri said in those days the atmosphere was such that he used to whisper in the Delhi Law Faculty’s coffee house, so that he did not openly say anything which was not palatable to others. But Justice Khanna did not come under pressure, even though it cost him the post of the CJI, [as he was superseded by the  then Indira Gandhi Government as a punishment for his dissent in Shivakant Shukla, following which he quit], Justice Sikri recalled.

Senior advocate, PP Rao, who also spoke on the occasion, described Justice Khanna as a ‘tilting Judge’, who gave the basic structure doctrine to the nation and saved the country from elected representatives who were uncontrollable.  It was Justice Khanna who stood between the six pro-basic structure doctrine Judges and the six anti-basic structure doctrine Judges in the Kesavananda Bharati case, and tilted the scales in favour of basic structure doctrine, considering the future of the country, Rao said.  He was also a picture of balance, as he held that the right to property was not a part of basic structure doctrine, in order to prevent the right from halting the progress of the country, Rao recalled.  Rao represented the Andhra Pradesh Government in the Kesavananda Bharati case, and was a witness to the great arguments advanced by Nani Palkhiwala and H.M.Seervai in that case.

Lokendra Malik and Manish Arora’s book carries two Forewords,one by Justice TS Thakur and another by Justice Sikri. The book is divided into three parts, namely, biographical sketch, selected articles of Justice Khanna and Justice Khanna’s Memorial lectures.