Monday, June 15, 2015

Book Launch: Bombay High Court's History

For anyone interested in Indian legal history, please come to the launch of my book, "An Independent, Colonial Judiciary: A History of the Bombay High Court During the British Raj, 1862-1947", this Thursday, 18th June, at the Y.B. Chavan Pratisthan (next to Mantralaya), Mumbai, at the Rangaswar Hall, 4th floor, at 6.30pm. All are welcome. 

Friday, May 29, 2015

Law and Liberty: Research Paper Competition

The Federalist Society, iJustice and Jindal Global Law School are jointly organizing a two-day international conference on ‘Law & Liberty’ on 18-19 September 2015 at O.P. Jindal Global University, Sonepat (Haryana).  The conference is being organized to give a platform for libertarian thought and to introduce a fresh perspective focused on the rule of law and individual liberty.  The conference also intends to develop a libertarian critique of popular judicial discourse.  There will be five panels and fifteen panelists including Prof. Shruti Rajagopalan, Prof. James Huffman and Prof. Saikrishna Prakash. Two slots are reserved for student-panelists to be selected through a competition. The conference is open to Indian and foreign legal academics and members of the Indian Bar and Bench.
One of the events for this international conference is a Research Paper competition that is open to all law students throughout the law schools in India. More information about the conference, and how to enter the Research Paper competition, can be found here.

Tuesday, May 19, 2015

History of the Bombay High Court

In a new book published this month, “An Independent, Colonial Judiciary”, I explore the history of the Bombay High Court during the British Raj. The book seeks an answer to one central question: why did the court transition so seamlessly from colonialism to independence? When M.C. Chagla became the first Indian Chief Justice of the Bombay High Court, Indian lawyers wrote to him that he must maintain, rather than undo, the “high standards” set up by the British Chief Justices who had preceded him. The answer, I found, in brief, was that the court stood for something quite apart from colonialism during the colonial period:

The Bombay High Court went through a gradual process of decolonization such that independence in 1947 did not represent a radical or substantial break from the past. Even in the 1860s, its “Appellate Side” Bar was dominated not by Britons but by Indians. Starting in the 1880s, the solicitors who appeared before the court’s “Original Side” were, increasingly, Indians. By the 1920s, the Bar was almost entirely Indian in its composition. And by the 1940s, nearly every judge of the court was an Indian.

In a colonial India in which racism was rampant, the Bombay High Court was a place where an Indian was likely to have encountered less racism than elsewhere. Indians were denied membership at elite social clubs like the Byculla Club or Yacht Club in Bombay, and Indians were often denied a first class seat or a seat at a dining table on a train or ship in the colonial period. By contrast, race did not predict how judges decided cases – Indian judges like Davar and Chandavarkar decided cases against Indian political leaders like Tilak and Savarkar, while a British Chief Justice, Lawrence Jenkins, almost single-handedly helped Indian lawyers to excel at the Bar. To this day, Lawrence Jenkins occupies pride of place at the Bombay High Court – his portrait hangs alongside Chagla’s in the Chief Justice’s courtroom, and his statue stands beside Mulla’s at the judges’ entrance of the court. A Welsh Chief Justice, Jenkins was so hated by his British brethren that he was called a “scoundrel” in open court by a British judge in Madras- a judge who was consequently forced to resign. It was seniority, not race, that determined which of the two judges on a “Division Bench” got to write the judgment in a case. At the higher levels of the profession, litigants hired lawyers based on how good they were in court. Like Sir Jamshedji Kanga or J.D. Inverarity, if you were capable of making an outstanding argument in court, it mattered little to the litigant whether you were Indian or Briton, Hindu or Muslim. The Indian and British judges of the court shared warm personal relations off the bench. Gentlemen judges like Badruddin Tyabji and M.C. Chagla- products of education in England – shared close bonds with their British counterparts. A very tiny proportion of cases before the court (in fact, less than 1% of the court’s docket) involved white litigants – thus, there were scarce opportunities for the court to act in a racist manner in favor of white litigants.

The court functioned independently of the other branches of government. Since 1899, a de facto “good behavior” tenure was in place, and it was informally understood that judges would not be removed except for misbehavior. Non-political criminal cases were as often decided in favor of the accused as they were decided in favor of the prosecution. Political criminal cases like the Tilak case were often decided in favor of the government – but it is debatable whether the outcomes of these cases were brought about on account of any political pressure exerted on the court’s judges. Successive Chief Justices of the court fought the executive on administrative matters, in order to retain the court’s independence.

Among other things, the book also debunks some of the old myths and hagiographical stories which abound about the High Court’s history. Take the story of Sir John Peter Grant – held out as the one example of the quintessential independent judge. The book reveals that there's more to his story than meets the eye (he was a Crown judge during the East India Company’s reign in India, when a judge was expected to police the administration to a far greater extent than later on; also, Grant was recalled to England, and he eventually had to resign his office). Another myth- it was said that Governor Mountstuart Elphinstone had challenged Chief Justice Edward West to a gun duel. This, I found, was not true. As Elphinstone wrote in a letter to West in 1826, “To challenge a Chief Justice is one of the last things that would have entered into my imagination.” Yet another myth- the Government Law College was, during the colonial period, a prestigious school at which one could study. Quite the opposite, I found that even in 1889, the Government Law School (as it was then called) was termed “little better than a farce, a sham and a delusion”, and its own alumni tended to distance themselves from it. Indians who wanted a prestigious legal education went to England to get called to the Bar at one of the Inns of Court, and to get a degree from Oxford or Cambridge.

Sunday, May 17, 2015

Judges with Elected Experience

Guest post by Douglas McDonald
Amidst debates surrounding potential political interference in the appointment of judges through the NJAC,[1] it is worthwhile to reflect upon the Supreme Court’s history of judges who had experience in elected office (or otherwise as legislators) prior to their appointment to the bench. Such appointments have been more frequent in, for example, the United States (where appointments of former politicians are not unknown and even today are relatively common on the nation’s state courts) or Australia (where twelve of the 51 justices of the High Court had held elected office prior to their appointment, albeit none appointed since 1975, and where two currently-serving judges of the Federal Court are former members of the Australian House of Representatives). As George H. Gadbois, jr. has written (of the Supreme Court’s judges appointed prior to 1989), ‘[p]articipation in politics prior to high court or SCI appointment was more common than most realise’.[2] However, such appointments still appear relatively exceptional in India.

Five judges of the Supreme Court of India had held seats in national, colonial or state legislatures at some point prior to their appointment to the bench:
·       K. S. Hegde (Rajya Sabha, 1952-1957);
·       Baharul Islam (Rajya Sabha, 1962-1972);
·       Ghulam Hasan (United Provinces Legislative Assembly, 1937-1939);
·       P. J. Reddy (nominated member of the Hyderabad Legislative Assembly, 1946-1947); and
·       V. R. Krishna Iyer (Madras Legislative Assembly, 1952-1957; Kerala Legislative Assembly, 1957-1965). ·

Of these, only Hegde and Islam resigned their seats to take up judicial office; the legislative careers of each of the others had ended before (in Hasan and Reddy’s cases, long before) their judicial service. (Somnath Chatterjee, long-serving MP for the CPI(M), states in his autobiography that he was offered a seat on the Supreme Court by Rajiv Gandhi.[3] Such an appointment would have been extraordinarily unusual given his ongoing political service and lack of prior judicial experience.)

Other Supreme Court judges had held roles in local government prior to their judicial service. For example, Mohammad Hidayatullah served on Nagpur Municipal Council (1932-1935, 1943-1946); Bachu Jagannadhadas was a member of the Madras City Corporation (1938-1943); V. Khalid served on Cannanore Municipal Council (1948-1949); and Kamal Narain Singh played an active role in Allahabad’s municipal governance for over a decade (serving from 1951 to 1958 on the Allahabad District Board and from 1958 to 1962 on the Allahabad Zilla Parishad).

Some High Court judges have similarly held legislative positions prior to their appointments to the bench. For example, R. R. Bhole served in the Bombay Legislative Assembly (1937-1942) and was later appointed to the Bombay High Court (1969-1975); B. N. Deshmukh similarly served in the Maharashtra Legislative Council (1978-1984) prior to his appointment to the Bombay High Court (1987-1997). Interestingly, despite the fact that no Supreme Court judge appointed since Baharul Islam has held parliamentary office prior to their judicial service (to the best of my knowledge), this has not similarly been the case on the High Courts; Ferdino Rebello, who served a single term in the Goa Legislative Assembly (1977-1980), later served on the Bombay High Court (1998-2010) and as Chief Justice of the Allahabad High Court (2010-2011).

Rebello was, however, an exception even amongst exceptions; appointments of this kind, never common, appear to have become even more unusual in recent years. Even though Indian judges have engaged in political activity prior to their appointment, whether as candidates for office or in non-elected capacities, or even following their retirement from the bench,[4] such experience cannot be considered comparable to a ‘full-time’ political career (or service in a legislative or executive capacity) and is, in any case, still relatively rare in the Indian context. Even jurisdictions with a tradition of appointments with prior political experience have employed them less frequently in recent years; despite perennial speculation, no judge of the highest courts of the United States, Australia, Canada or the United Kingdom served in elected office prior to their appointment.

The end to this tradition of judges with experience in public life has been mourned in other nations. George Brandis, currently Attorney-General for Australia, has asserted that Australian jurist Garfield Barwick ‘was a better judge because of his experience at the highest levels of government.’[5] Terri Peretti has noted that ‘[t]he loss of distinguished politicians on the [US Supreme] Court risks its representational qualities and its effectiveness as a policy maker and co-equal branch of government.’[6] Similarly, Philip Slayton has observed that Chief Justice Earl Warren’s ‘understanding of the law-making process, as a former politician, stood him in good stead when interpreting and adjudicating the law as a judge’.[7] Even Douglas Abbott, the last Canadian parliamentarian to be appointed to the Supreme Court of Canada, was (in Slayton’s analysis), if not a great judge, ‘a useful one’ owing to his understanding of parliamentary processes.[8]

Equivalent observations have been made in India with regard to the relationship between the political experiences and subsequent judicial approach of Justice V. R. Krishna Iyer. K. M. Sharma, who elsewhere noted Krishna Iyer’s ‘proclivity to pay policymaker’ from the bench – utterly distinct from the previously-prevailing norms of ‘austerity and detachment traditionally imposed upon a judge’[9] – observed that Krishna Iyer’s political background ‘most influenced his judicial career’.[10] To Sharma, Krishna Iyer’s years in politics ‘brought with them a general restlessness with the traditional judicial approach to decision making.’[11] S. P. Sathe, while noting that the ‘high legitimacy of the [Indian] Supreme Court’ arises from its appearance as ‘a body aloof from politics’, acknowledged that several judges with prior parliamentary or ministerial experience (including V. R. Krishna Iyer) ‘stand out as examples as good judges’; Sathe observed that, provided that such judges act impartially, ‘their past political experience could be an asset.’[12] Krishna Iyer himself admitted that his ‘unique experience of being an opposition member in the legislative assembly, battling elections, participating in controversial administrative policies and adopting a firm leftist outlook’ contributed to his iconoclastic judicial approach.[13]

One should not overstate the role of Krishna Iyer’s political experience and philosophy in determining his approach on the bench. A ‘psychobiological’ approach, or a disproportionate emphasis upon Krishna Iyer’s political commitments, would undervalue the role of the pre-existing constitutional framework and the institutional and political context of the Supreme Court in providing opportunities for the substantial innovations Krishna Iyer introduced to the theory and practice of Indian law. Nonetheless, one may argue (with support from Krishna Iyer’s own writings) that the late judge’s unique contributions to Indian law were in some sense enabled or inspired by his political experiences.

This post expresses no concluded view on the NJAC, or indeed on the desirability of any other method of judicial appointment. However, in whatever way judges are ultimately appointed, I believe that the judiciary stand to benefit from the presence of judges whose understanding of the operations of the legislature, of the relations between the various branches of government and of political life is more than purely theoretical or anecdotal – and that the appointment of judges who have previously served in elected office, provided that such judges are able to set aside partisan fervour, is one way of accomplishing this. 

Douglas McDonald is a solicitor with Craddock Murray Neumann Lawyers, Sydney, and a former exchange student at the National Law School of India University. Part of this blog post has been adapted from his LLB (honours) thesis at the University of Technology, Sydney. He is grateful to the editors of Law and Other Things for the opportunity to publish this piece, and is indebted to the work of George H. Gadbois, jr. in making this piece possible.

[2] George H. Gadbois, jr., Judges of the Supreme Court of India 1950-1989 (2011) 362.
[3] Somnath Chatterjee, Keeping the Faith: Memoirs of a Parliamentarian (2010).
[4] India arguably enjoys a surfeit of former judges who have served in legislative or executive roles following their retirement from the bench – both in earlier eras (for example, H. R. Gokhale, M. C. Chagla and former Supreme Court justices K. S. Hegde and Baharul Islam, both of whom served in Parliament before and after their judicial service) and in the present day (including M. Rama Jois, N. Y. Hanumanthappa, Ranganath Misra and Vijay Bahuguna).
[6] Terri L. Peretti, ‘Where Have All the Politicians Gone? Recruiting for the Modern Supreme Court’ (2007-2008) 91 Judicature 112.
[8] Ibid.
[9] K. M. Sharma, ‘The Judicial Universe of Mr. Justice Krishna Iyer’ in Dhavan, Sudarshan and Khurshid (eds), Judges and the Judicial Power: Essays in Honour of Justice V. R. Krishna Iyer (1985) 329.
[10] Ibid 317.
[11] Ibid.
[12] S. P. Sathe, Judicial Activism in India (2002) 299.
[13] V. R. Krishna Iyer, Wandering in Many Worlds (2009) 172.

Friday, May 15, 2015


LAOT  is pleased to begin a new series, Books and Authors, with a focussed interview with the author about his or her recent book. V.Krishna Ananth, is Associate Professor and Head, Department of History, Sikkim University, Gangtok.  His book, The Indian Constitution and Social Revolution: Right to Property since Independence, was published by Sage recently.  The book is available for purchase online here.  In this interview, Krishna answers a few questions on the book.

VV. To start with, can you tell us what prompted you to write this book? To put it differently, how do you think your book will make a difference to the plethora of books on the Indian Constitution and the case law?

KA: This is part of a study I had taken up during a fellowship at the Nehru Memorial Museum and Library, New Delhi on the “Retreat of the Nehruvian Socialist Project; A Study on the Political, Legislative and the Judicial Interventions”, in May 2009. I was drawn into this subject during my brief stint as a lawyer practicing at the Madras High Court; this was a time when I realized that the pro-poor tilt in the judiciary had begun to change. In other words, it was a sense of despair leading out of the shift away from a set of judgments during the 1970s and the 1980s that nudged me to study this subject. The book, however, is a small part of this larger project and I thought a systematic study on one aspect of our Constitution – the Right to Property – a fundamental Right until 1978 and a mere Constitutional Right since then was both following an argument as in existing works on the Constitution and yet distinct in that it focuses on one aspect of the Constitution. This is a more focused work on the concept of property and its evolution in the sixty years after the Constitution was adopted in November 1949. In this sense, it is different from the plethora of books on the Constitution in my opinion
VV: The words ‘social revolution’ in the title of the book echoes partly the title of your blog.  What prompted you to choose this particular expression to convey the contents of your book.
KA: This phrase, in fact, was drawn out of Granville Austen’s works. He uses this in Chapter 7 of his 1966 publication (The Indian Constitution: Cornerstone of a Nation) as well as in Chapter 3 of his 1999 publication (Working a Democratic Constitution: A History of the Indian Experience). It struck me that though the subject matter of my study pertained to economic relations and more particularly to property relations, the larger objective and the implication of these legislative and judicial interventions had to do with bringing about a social transformation in the Indian society. The canker of caste, for instance, while manifesting as a social problem is the fallout, in my view, of the economic disparities; and discrimination insofar as access to economic resources, in our society is based on social injustice. It is hence that, I will argue, the Constitutional scheme in general (Justice, Social, Economic and Political as underscored in the Preamble in particular), underscores this strong inter-relationship between the economic and the social towards achieving political democracy. `Social Revolution’ was chosen for this reason. I must add that the title of my blog had not occurred to me when I formulated the title of the book. In any case, Permanent Revolution to me is drawn from the Gandhi; though it was Leon Trotsky who used this phrase elsewhere.
VV: The sub-title of the book conveys the impression that the book focuses on the right to property, which ceased to be a fundamental right in 1978 due to the 44th Amendment Act, although the book, in my view, raises larger philosophical questions.  You have explained the circumstances in which the right was first guaranteed as a fundamental right, and later removed.  Considering that the State today uses eminent domain to favour the private interests, would you now favour the restoration of right to property as a fundamental right?
KA: Well. This is certainly one of my arguments and I do hold that in times when we have had instances where activist lawyers taking up the cause of the oppressed (a feature of our democracy since the 1980s, also when the institution of PILs gained currency), Article 31 of the Constitution could have been used against land grabbing by the State. After all, we do notice that this Article, until it was deleted, came in handy to the propertied classes against the state attempts to realize the contents of Article 39 (b). This, however, is only an academic argument. The fact is that the neo-liberal era had witnessed the state swinging to the other end and turning the land grabber not in order to realize Article 39 (b) but to dispossess the peasantry. And I should hasten to add that even if Article 31 was not deleted in 1978, it would have been done a decade later to push the neo-liberal agenda. I will not even dream today of a Constitutional Amendment to restore the Right to Property as Fundamental Right now with the consensus among parties to enact land grab acts!!!
VV: One interesting aspect of the book is that it hints at the probable influence of John Rawls on the framers who unconsciously followed his theory of ‘veil of ignorance’ and on the Keshavananda Bench, which relies on Rawls intellectual mentor, Immanuel Kant.  But as a reader, I was disappointed that you decided that this is not a focus of your book.  In your view, the veil of ignorance applied to the members of the Constituent Assembly or We the People.  And the contract you refer to – was it between the members of CA and the people or between the State and the people?
KA: I must agree with you that I have not made Rawls and his Theory of Justice the focus of my study. But then, we will agree that the Constituent Assembly debates preceded Rawls and even in case of the Keshavananda verdict (1973), though I find a huge influence of Rawls (and as you point out a reliance on Kant), there is no reference there to Rawls. I do see that the judges must have been privy to Rawls at the time of writing their judgments but do not make a direct reference there. As for the second leg of your question, I think the Constitution represented a contract between the state and the people and that probably is how we can see the Rawlsian framework.
VV: Can we say that the Indian Constitution rejects utilitarianism completely, and here the influence of Rawls is more than evident?
KA: I cannot agree with you more. But let me add that this was true in the Nehruvian era and I do see a shift towards utilitarianism in the neo-liberal era and an attempt to render the Constitutional philosophy into a utilitarian frame.
VV: Article 39(b) uses the expression ‘common good’.  Should it be interpreted as the ‘greatest good of the greatest number’ as some courts including the Supreme Court have done in some cases? Has there been any case law on this issue?
KA: Well. Common Good cannot mean the greatest good of the greatest number unless we insist on a utilitarian framework; and I do not agree that our Constitution was conceived in that manner. Article 39 (b) is unambiguous here. It talks about achieving an egalitarian society in terms of ownership of the wealth. I see Keshavananda as a case in point to this and Justice H.R.Khanna’s verdict there that the Right to Property does not constitute the Basic Structure of the Constitution very significant in this regard. I will also read the decision in the Minerwa Mills case and in the Olga Tellis case as markers of this trajectory.
VV: You also suggest that Rawls may be inadequate to address the many aberrations which marred the strength of our institutions to promote the ‘original position’  (You may explain what is the original position, that you refer to in italics throughout), and that Amartya Sen’s war of positions may be the answer.  But you did not elaborate this point further, perhaps due to the limitations of your book’s focus.  Can you explain this point here for the sake of our readers?
KA: I must keep this for a larger project that I intend taking up to do this; incidentally, this is what I propose there. In that, I am considering to take up the shift in Rawls as well as the epistemological significance from A theory of Justice to An Idea of Justice; from law as given to aspirational law. I hope I will be able to do that soon. As for the use of Italics, it was more a matter of style and nothing more. 
VV: UPA Government’s Land Acquisition law, LARR, gets a passing reference in your book, as it is not its focus.  Can you explain your position on LARR and the Modi Government’s amendments to it which have become very controversial?
KA: I consider the 2013 Act (LARR) and the subsequent amendment by way of Ordinance by the Modi Government as belonging to the same league. I hold that the 2013 Act as well as the amendments attempted to that are the fallout of a shift from the Nehruvian ideals to the neo-liberal consensus and the treatment of land as commodity. I have dealt with this elaborately elsewhere in an academic paper for a forthcoming publication. A version of that is available on my blog here. The argument here is that both the 2013 Act and the amendments attempted belong to a neo liberal era and driven by utilitarianism and thus a paradigm shift away from the theory of justice that guided our Constitutional scheme in the fifty years since 1949.
VV:  Thank you Krishna, for finding the time to answer the questions for our readers and best wishes from LAOT for your next book.

Thursday, May 14, 2015

The Untapped Potential for Constitutional Avoidance in Social Rights Adjudication

Joint post with Dr Farrah Ahmed

This blog post summarises our arguments in this forthcoming article in Oxford Journal of Legal Studies. In his 2012 book, Judging Social RightsJeff King makes a powerful case for a limited, incrementalist, judicial approach to social rights adjudication. One of the incrementalist strategies King prescribes is constitutional avoidance, that is, ‘where a claim may succeed on constitutional or non-constitutional grounds’, the court should ‘prefer the non-constitutional remedy’. King advocates constitutional avoidance in social rights adjudication as a means of preserving administrative and legislative flexibility, particularly the capacity to adapt to new circumstances in social rights adjudication.
King’s prescriptions (including constitutional avoidance) are aimed primarily at states manifesting certain background political conditions based on current conditions in the United Kingdom. He expects Canada, Australia, New Zealand, much of Continental Europe, and possibly South Africa to satisfy these background political conditions. The qualified inclusion of South Africa notwithstanding, this is a list of mostly wealthy jurisdictions. However, in countries such as India and Brazil, large numbers of people are denied social rights, so legal protection of those rights is especially significant. This post suggests that King’s prescription of constitutional avoidance in social rights adjudication should also apply to India.
We examined the potential for constitutional avoidance in 19 'landmark' Indian Supreme Court cases on social rights. Of these cases, the claimant was successful in obtaining some remedy in 18 cases. In 15 of these 18 cases, at least some of the remedies granted (whether substantive access to shelter, education, medical care, or procedural safeguards protecting such access) could have been granted without invoking constitutional guarantees. In other words, there was a statute, a policy, administrative law, common law or (in a few cases) private law provision upon which some of these remedies could have rested. For instance, the orders in Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180 did not require an appeal to constitutional rights. The orders could have been made on administrative law grounds of legitimate expectations and procedural fairness instead. However the Court did not adopt constitutional avoidance in any of the cases we examined. Instead, it constructed every case as a denial of a social right implicit in, or entailed by, the ‘Fundamental Rights’ guaranteed by the Indian Constitution. This approach leads to two failures.
First, the Court loses an opportunity to underscore administrative failures. When the entitlement is based on an existing policy or procedural fairness, or where the entitlement would have been received but for an administrator’s unreasonable action or failure to exercise discretion, the judicial reluctance to articulate this explicitly fails to underscore the importance of these general administrative law norms. Moreover, since the remedies in these cases are not based on generalisable administrative norms, administrators gain no guidance for future cases. For instance, in Court on its Own Motion v Union of India (2013) 1 MLJ (SC) 639 the Court identified significant administrative problems: ‘the management and arrangements for the yatris [pilgrims] at the glacier and near the Holy Shrine are, to say the least pathetic … The management suffers from basic infirmity, discrepancies, inefficiency and ill-planning’ [9]. Instead of addressing these administrative problems using administrative law, the Court passed 23 highly specific unreasoned directions [31] based on the expansive constitutional right to life [9]-[12]. It is difficult to infer from these directions what general administrative principles the administrators breached.
Secondly, the Court’s under-justified use of structural injunctions is encouraged by the use of constitutional law; this has adverse implications for institutional comity and for separation of powers. Of the 18 cases we examined where the claimant was given some relief, the Court ordered very specific structural injunctions with respect to its implementation in at least 10 cases. Sometimes the Court’s structural injunctions created new bodies to oversee or coordinate the functioning of existing implementation authorities. At other times, the judges tinkered with the composition or the manner of constitution of the existing bodies tasked with implementation. Often, existing bodies were given transparency, accountability and participation-seeking injunctions, including reporting requirements. Through these injunctions, the judiciary took upon itself the task normally performed by the executive and redesigned enforcement mechanisms often put in place by the legislature. Assuming that the three main state organs are designed bearing in mind their key functions, such judicial interference in the administration requires specific justification. We believe that many of the remedies, including structural injunction, actually ordered in these cases are defensible, even after the caution from institutional comity is borne in mind. But a judicial failure to properly articulate those defences harms institutional comity between organs of the state.
Constitutional avoidance, particularly the use of administrative law, in such cases would lead to better guidance for administrators, more honest adjudication and better respect for separation of powers in India. In fact, it may further encourage an indigenous administrative law jurisprudence that responds better to the specific challenges of administration in India.

Tuesday, May 12, 2015

Jugaad Justice?

A bit dated, but here is an op-ed of mine in the Mint reflecting on what I term "jugaad justice". In this piece, I refer to Justice Katju’s maverick ruling dispensing with interim injunctions in IP cases, a theme I elaborate upon quite significantly in this book chapter here. Unfortunately (or perhaps fortunately for some), courts have not complied with this Supreme Court diktat issued by Katju J (as he then was).

Here are some extracts from the Mint piece:

"....Is the law necessarily at odds with creativity, particularly common law or the tradition of judge-made law, where “precedent” is everything, and where conformity trumps creativity?

While there is some (relative) truth to this, a careful review suggests that the law is not completely bereft of creativity. In India alone, one finds a whole host of quick-fix solutions devised to cater to a resource-constrained ecosystem; solutions that answer to a rather contentious term: “jugaad”.

One’s view of jugaad is shaped, to a large extent, by one’s larger worldview on whether we lean towards a Godzilla-like “big (market) is beautiful” frame, or we are more partial to a milder Schumacherean “small is beautiful” philosophy. To the latter category of people (and I find myself in this camp), jugaad is seen as more green (deploying as it does less resources), self-sufficient (Gandhi style) and contra-consumerist (prevents wasteful use of resources that come with scale and mass markets).

The spirit of jugaad finds resonance in a legendary fable of the US vs USSR space race, where the US struggles to invent a high-tech pen capable of withstanding the anti-gravity environs of outer space. The Russians simply used a pencil. This famed fable soon found its way to a Bollywood movie titled 3 Idiots, where the protagonist Aamir Khan is seen supervising an open-air lab with jugaad-type inventions such as a mini flour mill powered by a scooter engine.

It is this jugaad mindset that sees our courts deploy retired judges as court commissioners to supervise the nightmarish process of taking evidence in long-drawn lawsuits, thereby easing the pendency pressure on sitting judges. In fact, what we do with our retired judges is quite something. We pick them to preside over troubled tribunals, mediate interstate disputes, investigate sporting scandals and what not. There are plenty of other examples of jugaad justice (if I can call it that), but let me traverse the intellectual property (IP) domain, as that is one that is most familiar to me.

Years ago, in a rare flash of intuitive intelligence, the maverick justice Markandey Katju did away with “interim” injunctions, often the first phase of an IP dispute. Such injunctions were granted upon the demonstration of a “prima facie” case, and meant to protect an IP owner against the vicissitudes of a long trial, where the alleged infringer could flood the market with competing products and destroy the value of a time-sensitive IP right.

Katju’s logic was simple. Given that this initial interim phase was itself subject to endless adjournments and delays, it was far simpler to dispense with this phase and move directly to the more complex trial phase and resolve the dispute once and for all (the second phase). This dispensation had the added advantage of ensuring that in complex cases such as pharmaceutical patents, the judge faced no “prima facie” pressure and could review all evidence in depth to arrive at the right determination. A wrong interim result effectively meant that competitors and hapless consumers were denied access to cheaper life-saving medicines, till such time as the court finally got it right.

Underlying this elegant solution was an intuitive logic that made the most of a resource-crunched ecosystem beset with endemic process delays. However, Katju rightly cautioned that in all such cases where the interim phase was dispensed with, trials would need to be expedited through mandatory timelines. Unfortunately, this policy prescription is observed more in the breach by lower courts and lawyers appearing before them.

In another series of remarkable decisions, courts ordered that rather than pay damages to IP owners, defendants accused of infringing IP rights donate money or contribute to social causes. Illustratively, in a trademark infringement case involving the Baba Zarda mark, courts ordered the defendant, a tobacco-chewing manufacturer, to install 150 spittoons in various hospitals in Hyderabad..."

I then wrote a follow up post on SpicyIP highlighting more orders from the Delhi High Court asking defendants to do some form of community service (in lieu of damages).

Would be great to hear more examples of jugaad justice from those of you in the know...particularly around the non IP space. Once I have a good list of such examples (from all areas of law/justice), I plan to do another post highlighting the most significant ones. Thanks!

Sunday, May 10, 2015

NJAC hearing in Supreme Court: Merits of AG's plea for reference to a larger Bench

The plea of AG and other counsel for respondents in the case being heard by the Supreme Court's five-Judge Bench for reference to a larger Bench comprising 11 Judges has become controversial, with the petitioners' counsel, Fali S.Nariman questioning the need for such a reference. 

I tried to trace the chronology and the news coverage of the hearing of the case, to find out when exactly the AG first made such a plea, and whether it was belated. 

The petitions challenging the NJAC Act and the 99th Constitution Amendment Act were first heard by a three-Judge Bench comprising Justices Anil Dave, J.Chelameswar and Madan B.Lokur.  Before the NJAC was notificed on April 13, the plea of the petitioners was for a stay of the Act.  On March 10, the AG opposed the plea for stay before this Bench. He made no mention of the need for reference to an 11-Judge Bench. 

On April 7, the three-Judge Bench refused to stay the Act, before its notification, and accepted the plea of the petitioners and the respondents, that the matter involved substantial questions of law as to the interpretation of Constitution, and therefore directed that all matters of the group be placed before a larger Bench. The April 7 order refers to the counsel suggesting that the matter ought to be heard by a five-Judge Bench, but refrains from specifying the number, in the operative portion of the order. 

On April 15, Justice Anil Dave-led five-Judge Bench began to hear the matter.  While Fali Nariman opposed Justice Dave's presence on the Bench on the recusal issue, the AG opposed his plea for recusal of Justice Dave, and requested that Justice Dave must continue to hear the case as he was to "decide the validity of NJAC in a dispassionate manner."  He made no mention of the need to refer the case to an 11-Judge Bench.

On April 21, the recusal issue again came up before Justice J.S.Khehar-led 5-Judge Bench when it began the hearings.  The AG found nothing wrong in the Bench hearing the matter to lay down the principle on the issue of conflict of interest.  Again, he said nothing on the need to refer the case to an 11-Judge Bench. 

On April 22, the Bench rejected the plea for recusal of Justice Khehar, and decided to go ahead with the hearing.  Nariman too withdrew his plea for recusal.  Again, the AG said nothing about referring the case to an 11-Judge Bench, and asked the five-Judge Bench to go ahead with hearing the case on merits. Interestingly, the AG also made the claim that the collegium system ceased to exist, which was contested by Arvind P. Datar, another counsel for one of the petitioners. 

On April 23, the Bench obtained an undertaking from the AG that the NJAC would only deal with the question of extension of tenures of additional Judges in High Courts, and for this purpose, the two eminent persons would be nominated to NJAC soon.  There was no mention of the need for referring the case to an 11-Judge Bench by anyone including the AG. 

On April 27, the issue of the CJI's refusal to participate in the NJAC came up before the Bench, which refused to issue a direction to the CJI, as suggested by some counsel.   Newspaper reports make no mention of the AG's plea for reference on this day.

On April 28, the AG first mentioned the need for referring the case to an 11-Judge Bench.  The report on the proceedings carried by Legally India says that this was first expressed by Bishwajit Bhattacharyya, the petitioner-in-person on April 27, and was also supported by Fali Nariman himself. The report published in Indian Express on April 29, however, is silent on this.

The LI report mentions about the AG expressing surprise about the petitioners' counsel raising the issue of independence of judiciary, as he probably thought the arguments would probably be confined to the merits of NJAC Act and the 99th Amendment independently of the judgments in the Second and Third Judges cases which were decided by a Bench of 9 Judges in 1993 and 1998 respectively. Thus although a strong votary of the argument that the two Acts had wiped out the collegium and the principles in which it was based, the AG perhaps believed that it was difficult to challenge the petitioners on the question of independence of judiciary, if they relied on the judgments in the Second and Third Judges cases. 

However, as the petitioners' counsel began their arguments on the merits, the issue of reference temporarily took a back seat, only to return with a bang when the AG began his arguments, confining himself wholly to the reference issue.  With the Bench refusing to refrain from referring to the judgments in Second and Third Judges cases, the AG perhaps had no option but to persist with his reference plea. 

As there is no official record of the proceedings of the Court with regard to who said what, the reports in the media are the only source for a reader to make sense of the case, although journalists differ on whether a particular report as carried in a newspaper or a website is an authentic reproduction of the proceedings.  

Therefore, two questions arise - whether Fali Nariman shared the AG's plea for reference to an 11-Judge Bench initially, but changed tack later, and whether the AG himself was not convinced about the need for reference initially, only to become vociferous about it later, as he belatedly realised that the delinking of the reference issue from the merits of the case was not possible. 

The plea for referring the case to an 11-Judge Bench, on the basis of arguments of the respondents' counsel, appears to be based more on rhetoric, and the need for an "authoritative pronouncement" on the issue.  Clearly, there was nothing to prevent the counsel from making such a plea vociferously at the beginning of the hearing. But for reasons unknown, they didn't. 

The other argument is that the principle that only Judges can protect independence of Judiciary, as laid down by the Court in the Second Judges case, needs to be reconsidered first, if the court is to hear the challenge to NJAC.  Clearly, this was not such a complex matter that it could not unravel itself at the beginning of the arguments - still, the counsel on both sides, saw merit in the five-Judge Bench hearing the matter. 

Is the Bench hesitant to refer the case to an 11-Judge Bench at this stage? The Bench appears to be disappointed that it is under pressure to do so, after having wasted several days hearing the arguments on merits. On the Bench, Justice Kurian Joseph is a strong votary for reference to an 11-Judge Bench, while others are not.  At least, three out of five Judges prefer delinking the reference issue from the challenge to the NJAC, a move which was opposed by the respondents. 

The principal issue seems to be whether the judgment in the Second Judges case would bind the current Bench of five Judges to decide the challenge to NJAC in favour of the petitioners.  With the sole exception of Justice Kurian Joseph, the Bench believes that though the judgment may be useful to understand the present challenge, it is not binding.  One has to wait and see how the Bench finally decides the issue.

ADDENDUM: Apart from other things, it was curious to find  Justice Kurian Joseph asking the counsel what the man on the street would think if a Bench of a smaller size (rather than a Bench of 11 Judges) decides the matter.  Some of the counsel for the respondents also seemed to assume that only a Bench of 11 Judges could "correctly" decide the matter.   These views are indeed debatable.