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                                               THE COURT

                                                                                                     Hilary Pais, 08 March,2008.


This paper is a tribute in memory of Professor S. Royappa, S. J., teacher par exellence, who taught me the Constitution of the United States of America and the Constitution of India.

INTRODUCTION

This article is not an academic exercise.   I have no academic pretensions and though over the past many years, I have followed very closely the working of the Supreme Court in the United States and the functioning of the Supreme Court in India,that is not my primary occupation.  I earn my living elsewhere and it is during the time that it was possible to spare, that I have studied this and the other subjects that you will find on this website.  While the core subject of this article is the Supreme Court of India, there is substantial reference to the Supreme Court of the United States.  That is because judicial review as it is known, is the creation of the judicial system of the United States and judicial review is the core function of the Supreme Court of India.

What makes me write this article?  A paper like this takes a lot of time to research and time is not something that I have.  But I am provoked by the way in which the Supreme Court in India has evolved and by the manner in which it has come to position itself in the life of the country. Whether you like it or not, today, the Supreme Court of India is arguably, the most powerful Court in the world.  And that is primarily for two reasons.  The first is that unlike any other court in the world, this Court virtually appoints to itself and to the High Courts.  The second and a very important reason is that by applying the principle of Basic Structure, the Court has effectively placed limits on the constituent power of the Parliament.  Neither of these powers, in the manner in which they have come to be exercised by the Court, find a place in the Constitution of India.  
 
ACKNOWLEDGEMENTS

For judicial review in the United States, I have used Federalist Paper No.78. I have also drawn upon the publications available with the United States Supreme Court. On the Constitution of India, for connectivity I have used Granville Austin’s, “Working of a Democratic Constitution, The Indian Experience”. Without Austin, my labour would have increased manifold. On the evaluation of the working of the Supreme Court of India, I have made use of Prashant Bhushan’s agenda notes for the conference that he and some others convened in Delhi recently.  I am sure Mr. Bushan will not mind.

JUDICIAL REVIEW

 I will start with judicial review in the United States of America because that is where judicial review began. The practice of judicial review predates the US Constitution.  Even before 1789, state courts had overturned legislative acts which conflicted with state constitutions.  It was in this background that the Founding Fathers did not consider it necessary to explicitly provide for judicial review in the Constitution and expected the Supreme Court to assume that role naturally. The best exposition ever of judicial review comes from Alexander Hamilton and James Madison in the Federalist Papers. In Federalist No. 78, Alexander Hamilton : "A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute."  And Hamilton again : through judicial review the Court ensured that the will of the whole people as expressed in their Constitution would be supreme over the will of the legislature, whose statutes might express only the temporary will of part of the people.  Madison wrote that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
 
Despite this background the Supreme Court’s power of judicial review was firmly established only in1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison.   In this possibly the most important case in its history, the Court invalidated a provision of the Judiciary Act of 1789 on the grounds that it violated the Constitution. Marbury was the first case in which the Supreme Court ruled an act of Congress unconstitutional and this firmly established the doctrine of judicial review.  During the 1810s and 1820s, the Supreme Court made a series of decisions involving the balance of power between the federal government and the states. The Court with John Marshall as Chief Justice repeatedly affirmed federal supremacy.  In McCulloch v. Maryland (1819) it was decided that states could not tax federal institutions and the Court upheld congressional authority to create the Second Bank of the United States even though the authority to do this was not expressly stated in the Constitution. In Cohens v. Virginia (1821), the Court established that the Federal Judiciary could hear appeals from decisions of state courts.  

 We will look at two important cases where the principles of judicial review were applied by the US Supreme Court in later times. In the 1950s, Earl Warren presided over a Court which made a series of landmark civil rights rulings. The most famous of these was in 1954 in Brown vs Board of Education.  The suit was brought by a girl named Linda Brown who had to walk a mile to a blacks - only school in Kansas while, a whites - only school, was much nearer.  This case overturned a Supreme Court ruling of 1896 which held that “separate but equal” facilities were legal under the Fourteenth Amendment.  The Warren Court swept that interpretation aside to declare that “Separate educational facilities are inherently unequal.”  This case is an example of how politically current the judgments of the Supreme Court can be.  In one generation, separate can be equal.  In another generation separate is unequal.  Yet the Constitution is the same.
 
In the 1973 abortion case that is now famous as Roe vs Wade, the right of a Texas woman wanting an abortion was found in her constitutional right to privacy.  This ruling reflected current thinking and nothing of what the 18th century text of the Constitution had to say.  The Constitution said nothing on the subject. According to Professor Philip John Davies of De Montfort University, the Supreme Court is often used to rule on problems avoided by the Congress.  “In the American system where power is divided, members of Congress have sometimes found it hard to address difficult issues and have found it easier to leave them to the court to resolve - segregation, abortion, capital punishment for example.

JUDICIAL REVIEW IN INDIA

This paper is fast becoming an essay on judicial review and the Supreme Court of the United States. That it is not my intention.  The United States has no problems with judicial review.  In India it started well. The power of the Supreme Court to judicial review was clearly spelt out in the Constitution.  But trouble began almost immediately.  As soon as the Court held certain land reforms laws to be violative of the fundamental right to property, government reacted by amending the Constitution.  A Ninth Schedule was incorporated by the First Amendment to the Constitution in 1951.  With this Amendment, Parliament could make laws and place them in the Ninth Schedule.  A law placed in this Schedule was excluded from judicial review.  In the beginning there were thirteen laws in the Ninth Schedule.  Now this list has grown to over 284 and that includes a Tamil Nadu law that provides for 69 per cent reservation for the backward classes in education institutions. When the Constitution was amended in 1951 and in 1952, the apparent intention was to keep out of judicial review, laws dealing with land reforms and tenancy reforms. The First and the Second Amendments were ideology driven, by Jawaharlal Nehru's adherence to Fabian Socialism.  There was a qualitative difference in subsequent years and in particular in the 1970s, when amendments to the Constitution were made with the primary intention to protect and advance the personal interests of individual politicians.

THE SUPREME COURT versus

  I have intentionally left ‘versus’ open.  Unlike in the United States, in India we have a kind of parliamentary system in which the executive and the parliament function as partners.  The executive which is the Prime Minister and the Council of Ministers, have to be members of either house of Parliament.  The Council of Ministers is responsible to the lower house of Parliament. Although there is a provision for private member’s bills, all important laws including amendments to the Constitution of India are introduced in Parliament by the executive and piloted by the executive until they are passed by the two houses of the legislature. You will not see a Sarbanes 0xley Law, under the Indian system.  According to the Constitution of India, Parliament and the State legislatures have the power to make laws within their respective jurisdictions.  This power is not absolute in nature.  The Constitution vests in the judiciary the power to adjudicate upon the constitutional validity of the laws.  If a law violates any provision of the Constitution, the Supreme Court has the power to declare that law as invalid.  At the same time, the framers of the Constitution wanted that law to be adaptable rather than be rigid and therefore vested in the Parliament the power to amend the Constitution.  A plain reading of Article 368 gives the impression that the Parliament’s powers to amend the Constitution are absolute.

The initial challenge to the seemingly absolute powers of the Parliament to amend the Constitution came in 1952 in Sankari Prasad Singh Deo and in 1955 in Sajjan Singh.  The argument was that any amendment to the Constitution had the status of a law as understood by Article 13 (2).  The Supreme Court rejected these arguments and upheld the power of Parliament to amend any part of the Constitution including that which affects the fundamental rights of citizens.  Significantly, two dissenting judges in Sajjan Singh, expressed concern that fundamental rights of citizens could become a plaything of the majority party in Parliament.

THE GOLAKNATH CASE

In 1967 an eleven-judge bench of the Supreme Court reversed its position. Delivering its 6:5 majority judgement in the Golaknath v. State of Punjab, Chief Justice Subba Rao put forth the position that Article 368, that contained provisions related to the amendment of the Constitution, merely laid down the amending procedure. Article 368 did not confer upon Parliament the power to amend the Constitution. The amending power (constituent power) of Parliament arose from other provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2). Golaknath was tested in the Bank Nationalisation and in the Privy Purses Abolition cases.  Both laws were struck down.

  In the 1971 elections to Parliament, Indira Gandhi's Congress party secured a two thirds majority and immediately proceeded to bring in a series of amendments. Between July 1971 and June 1972, Parliament restored to itself the absolute power to amend any part of the Constitution including Part lll that deals with fundamental rights.  The President of India was made legally bound to assent to any amendment passed by Parliament.   Several curbs on the right to property were passed into law. The right to equality before the law and equal protection of the laws (Article 14) and the fundamental freedoms guaranteed under Article 19 were made subordinate to Article 39 (b) & (c) in the Directive Principles of State Policy.  Privy purses of erstwhile princes were abolished and an entire category of legislation dealing with land reforms was placed in the Ninth Schedule beyond the scope of judicial review. These amendments became the subject matter of adjudication in Keshavananda Bharathi which we will discuss in the following segment.

THE PRINCIPLE OF BASIC STRUCTURE

The phrase ‘basic structure’ was mentioned in the Court for the first time by advocate M. K. Nambiar while arguing for the petitioners in the Golaknath case.  In the orders of the Supreme Court, the principle of basic structure figures for the first time in Kesavananda Bharathi.  The principle of basic structure however was developed in connection with the 1949 Constitution of the Federal Republic of Germany.  The makers of that Constitution decided that the Basic Law (that is what the Constitution is called in Germany) should be immunised against the kind of treatment that Adolf Hitler gave to the Constitution of the Weimar Republic.  Hitler got himself appointed as Chancellor by President Hindenburg.  When Hindenburg died sometime later, Hitler appointed himself as President.  The Basic Law of 1949 prevents such occurrence by requiring the Chancellor to be elected by a majority in the Bundestag. 

 BASIC STRUCTURE  AND THE KESHAVANANDA BHARATHI CASE.

The Keshavananda Bharathi case was heard by a bench of thirteen judges.  The verdict is found in eleven separate statements.  Nine judges signed a summary statement that records the main conclusions reached by them in this case.  The concept of Basic Structure of the Constitution was recognized by the Supreme Court of India for the first time in this majority verdict in the Keshavananda Bharathi case. All judges upheld the validity of the Twenty-fourth amendment saying that Parliament had the power to amend any or all provisions of the Constitution. All signatories to the summary held that the Golaknath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution. However they were clear that an amendment to the Constitution was not the same as a law as understood by Article 13 (2).

The majority judgement declared that Parliament's constituent power was subject to inherent limitations. Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution. Each judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either but there is a great degree of commonality in the listing of what constitutes the basic structure of the Constitution.  Principal among these are, supremacy of the Constitution, Republican and Democratic form of government, sovereignty of India, separation of powers between executive, legislature and the judiciary.  The minority view was delivered by Justice A.N. Ray who along with judges M. H Beg, K. K. Matthew and S. N. Dwivedi, upheld the validity of all the amendments that had been challenged before the Court.  They held that all parts of the Constitution were essential and no distinction could be made between essential and non-essential parts.  All the judges agreed that Parliament could make fundamental changes in the Constitution by exercising its powers under Article 368.

Some time after the Keshavananda Bharathi judgement was delivered, the position of Chief Justice became vacant.  Justice A. N. Ray who delivered the minority judgement in the case was appointed Chief Justice over the heads of three other judges who were senior to him. With this began legally and constitutionally, the most ignominious chapter in the history of India and in the history of the Supreme Court, not so much the appointment as what followed after it. What the Indira Gandhi Government did to the Constitution of India has no parallel in history and makes what Adolf Hitler did to the Weimar Republic, look like child's play.

It began in 1975, when a challenge to Prime Minister Indira Gandhi's election to Parliament was upheld by the Allahabad High Court on grounds of electoral malpractice.   Pending disposal of appeal, vacation judge - Justice Krishna Iyer, granted a stay that allowed Mrs. Indira Gandhi to function as Prime Minister on the condition that she should not draw her salary and speak or vote in Parliament until the case was decided.  Judge Iyer's decision, makes very strange reading.  It was by virtue of her election that Mrs. Gandhi was a member of Parliament.  As member of Parliament, she was the leader of the majority party in the House and as leader of the majority party, she was the Prime Minister.  Her salary was inconsequential and speaking in Parliament was equally inconsequential.  The law in India does not bar the dumb from becoming members of Parliament.   If the judge had let the Allahabad High Court judgment operate, Mrs. Gandhi would have had to resign as Prime Minister and someone else from the majority party would have become the Prime Minister. There would have been no declaration of Emergency that followed.  And without the Emergency, the Congress Party could not have gone in for the 39th Amendment.  Mrs. Gandhi was quick to take advantage of Judge Iyer's reprieve and got the Parliament to pass the Thirty-ninth amendment to the Constitution which removed the authority of the Supreme Court to adjudicate on petitions relating to elections of the President, Vice President, Prime Minister and Speaker of the Lok Sabha. Instead, a body constituted by Parliament was vested with the power to resolve such election disputes. Section 4 of the Amendment Bill effectively thwarted any attempt to challenge the election of an incumbent, occupying any of the above offices in a court of law. This was clearly a pre-emptive action designed to benefit Mrs. Indira Gandhi whose election was the object of the ongoing dispute. Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, 1975 in order to save the Prime Minister from embarrassment if the apex court delivered an unfavourable verdict. The mala fide intention of the government was apparent through the haste in which the 39th amendment was passed. The bill was introduced on August 7, 1975 and passed by the Lok Sabha the same day. The Rajya Sabha (Upper House) passed it the next day and the President gave his assent two days later. The amendment was ratified by the State legislatures in special Saturday sessions. It was gazetted on August 10. When the Supreme Court opened the case for hearing the next day, the Attorney General asked the Court to throw out the case in the light of the new amendment. On an adjusted timescale, the speed at which the Constitution was amended appears to be faster than the front-runner in a Formula One race.  In effect Mrs. Gandhi's election was put beyond the adjudicative powers of the Supreme Court. 

The 39th amendment to the Constitution was challenged before the Supreme Court and counsel for Mr. Raj Narain who was the petitioner in the election case, argued that the amendment was against the basic structure of the Constitution as it affected the conduct of free and fair elections and the power of judicial review. Counsel also argued that Parliament was not competent to use its constituent power for validating an election that was declared void by the High Court. Four out of five judges on the bench upheld the Thirty-ninth amendment, but struck down that part which sought to curb the power of the judiciary to adjudicate in the current election dispute. Justice Beg, upheld the amendment in its entirety. Mrs. Gandhi's election was declared valid on the basis of the amended election laws. The judges accepted Parliament's power to pass laws that had a retrospective effect. True to his genre, Chief Justice Ray recorded exceptional findings in this case. According to Ray, the constituent power of Parliament was above the Constitution itself and therefore not bound by the principle of separation of powers. Parliament could therefore exclude laws relating to election disputes from judicial review. He said that democracy was a basic feature but not free and fair elections.

While the Supreme Court or at least the bulk of it succumbed to Mrs. Indira Gandhi’s dictatorship under the Emergency, most of the High Courts displayed character. They continued to uphold the fundamental rights of citizens under the Constitution and granted relief under Article 226 in cases of wrongful detention.  It was inevitable therefore that the matter would be brought by Mrs. Indira Gandhi’s government before the Supreme Court.  That happened in the case, Additional District Magistrate Jabalpur versus Shiv Kant Shukla.  It is in this case that Attorney General Niren De harangued the Court, “even if life was taken away illegally, courts are helpless”. This was the biggest test that the Supreme Court ever faced and to its eternal shame the Court failed the test. The Court in this case was Chief Justice A N Ray and judges H R Khanna, M H Beg, Y V Chandrachud and P N Bhagawati.  Of the five, only Justice Khanna had the courage to tell the government that a person’s right to life could not be suspended even during emergency as that was fundamental to one’s existence.  The majority of four headed by the Honourable Chief Justice of India Mr. A N Ray accepted the government’s point and agreed that the right to life of the citizen did not exist during the Emergency.  With the greatest of ease, these four judges transferred from the political philosophy of John Locke and Thomas Paine on the inalienable natural rights of man to the hereditary power concept of Edmund Burke.( imagine my surprise to hear that retired judge P N. Bhagawati was monitoring human rights in Sri Lanka.) Let us be very clear on this basic point. That the people of India would regain their fundamental rights at a later date, had nothing to do with the Supreme Court of India.  That happened only when Mrs. Gandhi’s government was defeated by the people in the elections in 1977.  When Chief Justice Ray retired, Mrs. Indira Gandhi’s government overlooked H R Khanna and appointed M H Beg as Chief Justice of India. Justice Khanna resigned from the Supreme Court. In subsequent years the judges who gave away the peoples fundamental right to life were serially elevated to Chief Justice. India must have strange ways of enforcing accountability.

RAY ATTEMPTS TO REVIEW KESHAVANANDA.

Within three days of the decision on the Election case Ray, convened a thirteen judge bench to review the Kesavanada verdict on the pretext of hearing a number of petitions relating to land ceiling laws which had been languishing in high courts. Make a note that no specific petition had been made before the Court seeking a review of the Keshavananda decision.  Several members of the bar appearing before this bench and particularly advocate Nani N. Palkhivala, argued strongly for not proceeding with the review.  After two days of hearings, the Chief Justice, dissolved the bench.

Soon after the declaration of National Emergency, the Congress party constituted a committee under Sardar Swaran Singh to study the question of amending the Constitution in the light of past experiences.  In a speech made in the Parliament on 27 October, 1976, Mrs. Indira Gandhi declared that to her the principle of Basic Structure of the Constitution was unacceptable.  This was to be the guiding principle for the Swaran Singh Committee.  On its recommendations, the government incorporated several changes to the Constitution including the Preamble, through the Forty-second amendment (passed in 1976 and came into effect on January 3, 1977). Among other things the amendment:

a) Gave the Directive Principles of State Policy precedence over the Fundamental Rights
contained in Article 14 (right to equality before the law and equal protection of the laws),
Article 19 (various freedoms like freedom of speech and expression, right to assemble
peacefully, right to form associations and unions, right to move about and reside freely in
any part of the country and the right to pursue any trade or profession) and Article 21 (right to life and personal liberty). Article 31C was amended to prohibit any challenge to laws made under any of the Directive Principles of State Policy;

b) laid down that amendments to the Constitution made in the past or those likely to be made in future could not be questioned in any court on any ground;

c) removed all amendments to fundamental rights from the scope of judicial review and

d) removed all limits on Parliament's power to amend the Constitution under Article 368.

Empowered in this manner, the life of the lower house of Parliament which according to law is five years was extended.  In 1977, Mrs. Indira Gandhi's intelligence apparatus convinced her of her soaring popularity among the public.  Governors and Chief ministers from the States in their fortnightly reports informed the Prime Minister of the overwhelmingly positive public response to her 20 point programme and to her son Sanjay Gandhi's 5 point programme.  Buoyed by this assessment, Mrs. Gandhi called an election to Parliament.  The Congress Party was soundly thrashed and a hastily put together coalition of disparate elements came to power.  The coalition government did not last.  The Congress Party came back to power in 1980 but Mrs. Indira Gandhi was not half the person that she was in the mid-70s.  The early death of her son and designated successor Sanjay Gandhi in an accident, diminished her further.  In 1984 she was gunned down and killed by her security staff.

 In 1978, the 42nd Amendment was challenged before the Supreme Court.  Mr. N.A. Palkhivala, appearing for the petitioners Minerva Mills, framed the challenge in terms of Parliament's power to amend the Constitution. Mr. Palkhivala argued that Section 55 of the amendment had placed unlimited amending power in the hands of Parliament. The attempt to immunise constitutional amendments against judicial review violated the doctrine of basic structure which had been recognised by the Supreme Court in the Kesavananda Bharati and Indira Gandhi Election Cases. He further contended that the amended Article 31C was constitutionally bad as it violated the Preamble of the Constitution and the fundamental rights of citizens. It also took away the power of judicial review. Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld both contentions. The majority view upheld the power of judicial review of constitutional amendments. They maintained that clauses (4) and (5) of Article 368 conferred unlimited power on Parliament to amend the Constitution. They said that this deprived courts of the ability to question the amendment even when it damaged or destroyed the Constitution's basic structure. The judges, who concurred with Chandrachud, C.J. ruled that a limited amending power itself is a basic feature of the Constitution. The majority held the amendment to Article 31C unconstitutional as it destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution. The amendment to Article 31C remains a dead letter as it has not been repealed or deleted by Parliament.

And that is where the position of the Principle of Basic Structure of the Constitution has remained over these years.  The cardinal principle that emerged clearly out of this conflict between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are liable to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter  and interpreter of all constitutional amendments.  Things have come a very long way since the ignominious day on 14th December 1975, when presided over by Justice A. N. Ray, the Court was told by Advocate General  Niren De’s that “Even if life was taken away illegally, courts are helpless.”  What is more significant and surprisingly not received the attention that it deserves, is the full somersault in the position of the political parties, the Indian National Congress (Indira) and the Communist Party of India (Marxist).  Recall Indira Gandhi’s speech in the Parliament on 27 October, 1976 where she totally rejected the principle of Basic Structure.  Also recall the speech of A K. Gopalan during the elections of 1971 when he said that the Constitution be done away with lock stock and barrel and be replaced with one that enshrined the real sovereignty of the people.  The National Democratic Alliance government set up a Commission to Review the Working of the Constitution.  As soon as the Commission was set up, the Indira Congress and the Communist Party (Marxist) criticised the action saying that it was designed to make changes in the Constitution while destroying the Constitution's Basic Structure.  The government had to clarify that an enquiry into the basic structure of the Constitution was beyond the scope of the Commission's work.

APPOINTMENT OF JUDGES

This is the second point that I made in my introduction to this paper that unlike any other Court in the world, the Supreme Court in India appoints to itself and to the High Courts. In the United States, appointment to the Supreme Court is made by the President with the consent of the Senate.  Similarly appointments to the Courts of Appeal are made by the President with the consent of the Senate.
 
THIRD JUDGES CASE

According to the Constitution judges are “appointed by the government in consultation with the Chief Justice”.  The Supreme Court has, by an amazingly creative interpretation of the Constitution, taken over the power of appointing judges. The words “appointed by the government in consultation with the chief justice” in the Constitution were interpreted as “appointed by the government on the advice of the Chief Justice”.

The law relating to the appointment of superior judges was settled in October 1998 by the Supreme Court in what is known as the Third Judges case. This came by way of a special reference by the President under Article 143 of the Constitution. The apex court reiterated its earlier ruling that the Chief Justice of India should make a recommendation for appointments to a High Court "in consultation with the two senior-most Judges of the Supreme Court." This collegium of three "would in making their decision take into account the opinion of the Chief Justice of the High Court which `would be entitled to the greatest weight,' the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court Bench `who are conversant with the affairs of the High Court concerned.” All these views were to be expressed in writing and conveyed to the Government of India along with the recommendation. The Court goes on to add: "if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed.”

This practice has come for serious criticism.  The most important criticism is that the judiciary has become unaccountable by declaring itself sui generis.  That while its accountability was being whittled away, its powers have been increasing as it moved in to occupy the space vacated by a weak, inefficient and corrupt executive. There is a great deal of force in this criticism.  But the previous practice in effect was worse.  Appointment of judges had become the plaything of unscrupulous politicians. That does not mean that the present method is not in need of improvements.  And improvements can be substantial through the induction of transparency in the process of selection. But the following report shows that transparency is absent.  The report is from the proceedings before a bench of the Supreme Court -- Appearing for the petitioners, counsel submitted that as per the 1998 Supreme Court judgment consultation by the Chief Justice with the collegium of judges was necessary not only for the initial appointment but also for making permanent an additional judge. He alleged that the consultation process had been bypassed in making permanent Mr. Justice Ashok Kumar. He said: “We have no pleasure in agitating this issue but things are disturbing.”
Counsel said: “It is a matter of public interest that the appointment of High Court Judges be made according to law as laid down by the Supreme Court itself. It is a matter of grave public concern if the law so laid down is contravened.”
The petitioners submitted that Mr. Justice Ashok Kumar was first appointed in 2003 as Additional Judge and his appointment was extended from time to time. They alleged that the collegium of the then Chief Justice (R.C. Lahoti) and two senior judges (Justice Y.K. Sabharwal and Justice Ruma Pal) refused to recommend his appointment as a permanent judge in August 2005 because of adverse reports. However, he was again given extension as an Additional Judge. He remained as an Additional Judge for about three years and 10 months and he was made permanent in February 2007 on the basis of the recommendation of the present Chief Justice, K.G. Balakrishnan.

They alleged that the Chief Justice “neither consulted two senior most judges of the Supreme Court nor other Supreme Court Judges who are conversant with the affairs of the High Court concerned.”

The bench wants to go into this in detail.  Is this an isolated instance or, had there been similar other cases?  The bench asks the government for a report. The details in the report are shocking.  It is not just a few cases.  There are hundreds of them.  Chief Judges of the Supreme Court have been routinely sending their recommendations for permanency of temporary judges of High Courts without consulting or ignoring the collegium. The situation is most disturbing.  The Court is violating the rules that it made for itself. It also shows something that is even more disturbing.  There is no effective communication between Chief Judges and their senior colleagues. And government on its part has acted as a mere post office and passed on the imperfect recommendations to thePresident.  The President of India has approved these recommendations and the judges became permanent. It would be naïve to assume that judges of the Supreme Court did not know about what was going on.  They knew but were reluctant to bring it into the open.  The case before the Court has done just that.  The solution will not be through a judgement. Periodic meetings of senior judges to discuss this and other similar matters on an institutional footing should prevent this and other flaws of similar nature.  In the United States, the Supreme Court does not exercise any administrative function that concerns the Courts of Appeal.  In India appointments, confirmation, postings, transfers and many other administrative matters concerning the High Courts are controlled by the Supreme Court.  Whether this is good or bad, can be argued endlessly.  The practical side of it is to perform the functions with utmost transparency. That should not be a very difficult task for a Court that loves to lecture on the merits of transparency.

A QUESTION OF QUALITY AND INTEGRITY.

Quality or rather the lack of it, has been bothering knowledgeable people from the early days and eminent persons in the field of law have applied their minds to this problem. In the sixties of the last century, a Law Commission report, by members M.C. Setalvad, M.C. Chagla and other senior lawyers, criticised the quality of the people elevated to the Bench. Matters have not improved since then. Judges whose poor judgmental ability had come for adverse criticism from the High Court, have been within a short time thereafter, promoted to the High Court.  In one case, a judge appointed to a High Court had to leave within weeks of appointment when it surfaced that he was criminally involved in some land deals. These are recent and the most prominent instances.  There are many more, although the degree of aberrance may not be of the same level.  Nevertheless one thing is clear, that is the manner of processing cases for appointment has serious deficiencies that permit fatal errors.  A great deal of this is caused by the lack of transparency in the process of selection.  I shall elaborate on this later, while dealing with integrity. One of the most important reasons why persons of the right calibre are not attracted to serve as judges is the inadequate remuneration.  There have been suggestions that salaries of judges should be increased three or four times the existing scale while colonial trappings like free furnished official houses, chaprasis, official cars and similar things be removed.  It has been pointed out that the so-called perquisites do not exist in the United Kingdom and in the United States or in any democratic country.  What is it that has prevented the remuneration of judges of High Courts and of the Supreme Court from being put up?  It is the traditional principle of the equation that prevails in Indian government circles.  For the purpose of pay, the post of a judge is equated to the post of a Secretary and the post of the chief judge is equated for pay to the post of the Cabinet Secretary. This is patently ridiculous.  No post in the government whether of Cabinet Secretary, Foreign Secretary or Army Chief is comparable to the Chief Justice of India and judges of the Supreme Court.  Secretaries and military chiefs do not decide on what is the basic structure of the Constitution of India.  A departure from the principle of parity was made by the Supreme Court in the case of the subordinate judiciary when it forced down the throats of reluctant state governments the recommendations of the Jagannath Shetty committee.  District judges who until then were equated for the purpose of pay to Deputy Commissioners, found themselves elevated by one level to that of Commissioner.  This was done all the way down to the level of the junior-most judicial magistrates. It is for the Supreme Court to assume the initiative and break the stranglehold of the parity principle.  My recommendation is at least four times the present remuneration minus the present perks.
 The problem of inadequate remuneration is also hurting the Federal judiciary in the United States.  Wages and remuneration has been my specialisation for many years and I am sorely tempted to elaborate on this subject.  But I cannot do that in this paper and I will move on after citing an important report by the Chief Justice of the United States Supreme Court.  In the United States the remuneration of all federal employees including judges is determined by the Congress which, for a complicated set of reasons is reluctant to up the salaries of judges.  The salary of a judge of the Supreme Court is on the same level as the salary of a member of the House of Representatives.

According to statistics cited by Chief Justice John Roberts Jr. in his 2006 Year End Report, when adjusted for inflation, the average U.S. worker’s wages have risen 17.8 percent in real terms since 1969. Federal judicial pay has declined 23.9 percent—creating a 41.7 percent gap. “In the face of decades of congressional inaction,” Roberts wrote, “many judges who must attend to their families and futures have no realistic choice except to retire from judicial service and return to private practice.” In the past six years, 38 judges have left the federal bench, including 17 in the last two years.

Integrity of the judges in India has come for serious attention and criticism.  A convention was held in Delhi recently to discuss Judicial Accountability and Judicial Reforms.  The convention was attended by former Law Minister, Shanti Bhushan, writer Arundhati Roy, a lawyer, Prashant Bhushan, N Ram, editor of the newspaper The Hindu and by Mr. P B. Sawant, former Judge of the Supreme Court.  It was also attended by senior faculty of some law colleges.  Sawant in particular was severely critical of the the proposed National Judicial Council consisting of the Chief Justice of India, two senior-most judges of the Supreme Court and two Chief Justices of the High Court. He said that this would make it a purely in-house matter that would not serve the purpose for which it was intended. He recommended the appointment of an independent judicial commission, similar to the senate judicial committee in the United States, where all relevant aspects of a proposed appointee's record and personality could be openly discussed.  Sawant also made a critical reference to a statement of the Chief Justice of India, K.G. Balakrishnan, that no self-respecting judge would be willing to discuss his assets. Judge Sawant wondered whether it was the Chief Justice's case that all bureaucrats, ministers and electoral candidates, who were required to declare their assets, had no self-respect. He described as shocking the judiciary's attempts to place itself outside the purview of the Right to Information Act. Then there is a lot of criticism by other retired judges like Justice J S Verma and Justice Krishna Iyer. J S Verma was the chief judge who presided over the Jain Hawala case which ultimately was a lot of noise that yielded nothing.  Krishna Iyer, as we have already seen, is famous for his decision in the Indira Gandhi election case.  Should retired judges be speaking in public about an institution that they have left behind?  As citizens they have a right to do so but the convention is that one does not speak of or criticise institutions from which one has retired. Thus retired Army Chiefs are not expected to criticize or evaluate the current dispensation. Sure you have some great ideas but remember that either you did not have them or you had them but you failed to put them into practice when you were working in the institution.  That apart, Judge Sawant’s suggestion of a committee on the lines of the United States Senate Judiciary Committee to scrutinize selection of judges, is not going to work in the Indian context. The United States Senate does not merely scrutinize selection of judges.  Every senior appointment in the Federal Government needs to be confirmed by the Senate by a majority. The President of the United States makes the nominations. This and other functions the Senate does through its committees.  Thus the Defence Committee of the Senate scrutinizes the appointment of the Chairman Joint Chiefs and that of every other senior commander under the Ministry of Defence.  The nominees to the posts appear before the Senate committee and are literally grilled.  Individuals and institutions who have studied and have serious views on the suitability or otherwise of the appointment, are invited to appear before the committee and are heard.  They can also make written submissions.  The hearings are open and televised on the C-SPAN and other channels.  The Senate has complete information and data on every possible nomination for every senior appointment that a President of the United States can ever make.  As for nominations to the Circuit Courts of Appeal and to the Supreme Court, apart from the Senate, the American Bar Association’s research section has every detail on the individual nominee.  The details include his student days, his associations, his inclinations, analysis of his judgements, the details of his work within and outside government, and details of every bit of financial assets and every other imaginable detail.  In addition, there are other institutions and law schools that have detailed studies of every judgement delivered by any senior judge in the United States. In the Indian context, that would mean comprehensive data on every judicial officer in the country of the level of Chief Judicial Magistrate and above.  That number would run into thousands and is physically an impossibility. Technically storage of any quantity of data is possible.  But analysis of judgements and other judicial orders of thousands of officers is not a feasible task.  Remember that at the junior levels many of them write their judgements and orders in the vernacular.   And it is pointless to compare the Bar Associations in the United States, with whatever there is in India.  I do not know what kind of Commission Sawant has in mind. I hope that he is not thinking of a commission that is populated with retired judges.  That would be a disaster.  Having a commission with politicians would be a calamity.  From the practical point of view there does not seem to be a feasible alternative to the present mechanism of the collegium of senior judges. To this we must add an instrument of total and comprehensive transparency. I was not present in the United States during the confirmation proceedings of Chief Justice Roberts. I believe that there was hardly any controversy and the confirmation literally sailed through. I was present and watched the Senate judiciary committee proceedings on confirmation of Judge Samuel Alito.  For someone who comes from a hush hush Indian culture where you are taught that concealment is a virtue, the Sam Alito confirmation proceedings were a lesson in transparency. Judge Sam Alito and his family were present throughout the hearing.  People and institutions for and against the nomination were present and were heard. Alito’s days at law school, the student club of which he was a member, the articles he wrote for the law school Journal, his notings on the Justice Department files while he was working for that department, the tenor of his judgements as Judge on the Appellate Court. One thing in particular struck me.  Does he have investments in a particular mutual fund?  Did that mutual fund figure is a case that came before his bench in the appellate court?  Why did he recuse himself on the second day of the hearing and not on the first day itself?  Remember that the case itself had nothing to do with that particular investment or anything relating to that matter.  Nevertheless, Alito was questioned on this.  The judge admitted his lapse and said that he did not remember about that particular investment in a mutual fund on the first day and that when he did on the next day, he recused himself. I have cited this instance to demonstrate the details that are available to law schools, bar associations and to the Senate on every kind of nomination made by the President of the United States.  Also remember that Senate confirmation is not a formality. The Senate does not make a recommendation.  The President of the United States makes the nomination.  The Senate approves the nomination or disapproves the nomination.  The decision of the Senate is final.  In the year 2006, the President nominated John Bolton, Under-Secretary in the State Department to be the United States ambassador to the United Nations.  As the Senate was in recess, Bolton began functioning as the ambassador immediately on nomination.  The Senate, which at that time had a Republican majority (President Bush belongs to the Republican Party) did not confirm John Bolton as Ambassador and Bolton had to return to Washington.

Prashant Bhushan’s background paper for the Convention makes some very serious and relevant points on the Supreme Court and the judiciary.  I reproduce the points below.

1. Corruption within the judicial system is no less than that of any other institution of the state and is well known to those who have had to deal with it. It is less visible because of the lack of any system of accountability of the judiciary, and because the media is unwilling to talk about it, due to the fear of contempt.

2. The system is totally inaccessible to the poor of the country, being so formal and procedurally complex that it can only be accessed with the help of lawyers, whom the poor cannot afford. Even those who can access it,cannot hope to get their disputes adjudicated within a reasonable time.

3. The media-hyped skirmishes that we see between the judiciary and executive mask a bigger partnership between the institutions, where they have teamed up together to do what they want with impunity and also appropriate land and other resources from the poor and give them away to large vested commercial interests.

I shall deal with points1 and 2 after a while.  Prashant Bhushan’s point 3, I shall deal with immediately. In the name of Special Economic Zones, vast areas of agricultural land are being taken away from cultivators and given to vested commercial interests.  The justification given for this compulsory transfer is that China has done that and has grown tremendously.  This explanation is typical of the half baked explanations that you get from the government and from business in India. The irony of it is that the SEZs, which were supposed to be inspired by the Chinese model, are quite different from those implemented in China. The only thing in common between the two is the name.

In China, SEZs are owned and managed by the government, while in India they are owned by corporate bodies and private developers. The SEZs in China are very large zones in close proximity to the sea, so that exporters of the products from these zones will not be handicapped. In India their locations have been decided without any special consideration for easier access to the ports. An important argument in support of SEZs in India is that they will help in accelerating the ongoing industrialisation process, but a scrutiny of the projects so far approved shows that this objective is unlikely to be achieved.
Out of the 237 projects approved, over 140 are information technology related. IT units have grown in India so far without the support of the facilities of SEZ projects and there is no reason to believe that further growth in information technology needs such expensive props and concessions. Another disturbing feature of the 237 SEZ approved and the 167 that are approved in principle, is that a good number belong to the category of real estate development, which cannot be expected to have any impact on accelerated industrial development.

It is true that when land is taken away from farmers they are given the market value in compensation.  But the immediate result is that the self-employed farmers are reduced to the ranks of seekers of wage employment and the female members of the families of farmers who were self-employed in agriculture at home, are reduced to the ranks of the unemployed.  Land is scarce in India and is becoming more so. In certain areas the price of land becomes double within three years time. (The soft underbelly of the Western Ghats, the only exclusive ecological hotspot in India, is being carved out to give land to SEZ.)  The SEZ programme is carefully designed to pass on this capital gain to the business class with whom India’s politicians have mutually fruitful relationship.  One can appreciate the angst of the principal movers of the convention who find that the Supreme Court of India is cruising along comfortably on the SEZ mode.


While on the question of integrity, look at the way the following case was handled by the Supreme Court. Chief Minister Jyoti Basu allots plots of land to a few people in the Salt Lake area of the city Kolkotta.  There is a public petition to the Minister objecting to the allotment.  The Minister does what politicians in India usually do in such situations.  He appoints a retired judge of the High Court of Kolkotta to enquire.  In the process he also allots a plot in the same area to the judge.  The case becomes the subject matter of a petition before the Supreme Court which the Court entertains.  I am far away from where I watch the progress of the case on the net.  I think that at last here is an occasion for the Court to look at the obnoxious practice of Chief Ministers in India allotting prime estate in urban areas to whoever they might fancy.  Fellow politicians, businessmen, boyfriends, girlfriends, IAS officers, IPS officers, members of the Union Public Service Commission who are dealing with the induction of state government civil servants to the all India service, senior officials of the law enforcement agencies like the CBI, members of Parliament, members of the legislative assembly, chairman and officials of Space Research Organisation and, let me not forget, judges are beneficiaries of this largesse at public expense.  Here is a chance, I thought for this Court which leaves no opportunity to pontificate on high grounds of morality, to set matters right once and for all.  To my utter amazement and deep disappointment the Court did nothing like that.  It merely cancelled the allotment of the plot made by Chief Minister Basu to the Kolkotta judge.  How do we justify within the law and the Constitution, the allotment at nominal charges, of prime urban real estate to judges, IAS officers, politicians and the like.  Is this not clear discrimination that violates Article 14 of the Constitution?  Is this not favouring not just the creamy layer about which the Court is rightly concerned but the creme de la crème?  Are not these persons, public servants and judges who accept these favours from the politicians compromising their integrity? There are persons in this segment of society who have in this manner secured prime plots of land not in one city but in two and more urban places.  But this essay is not on individual persons.  It is about principles and about the manner in which the Court has failed to uphold the basic principle of equality before the law.

 The other very serious criticism is that access to the system is available only to the rich and the influential.  To have the attention of the Court you need to hire a big lawyers who come for big money.  Effectively this means it is businessmen, politicians and corrupt of officials that can access the courts with ease.  There is a minor element of public interest litigation that gets magnified in the media but in reality is a small fraction of the total business transacted.  The justice system anywhere in the world is expensive and for that reason those who are not rich generally strive to keep away from it.  But, within these general limitations it is the duty of the justice system anywhere to demonstrate visibly that other things remaining equal, access to the system is decided on principles that are intelligible to all and that nobody is discriminated for lack of money or other resources.  That can be best demonstrated by total transparency in the listing procedures.  But that does not seem to be the case.

Read this report of 3 April 2006.

Over a hundred lawyers have represented to the Chief Justice complaining that while certain cases were fast tracked, generally litigants suffer as they have to wait for years before their cases are taken up for hearing.  Giving date wise proceedings of hearing on the appeals filed by Sharma and Sidhu, the lawyers have said that an opinion was forming that only "economically and politically influential persons" have access to the fast track justice delivery system. On the other hand, cases of our litigants are kept pending, resulting in filing of several applications every week seeking early hearing of their appeals".

This makes for very sad reading.


THE WORK LOAD

We will now discuss the volume of work in the Supreme Court in particular and in the judicial system in the country in general.  A great deal of litigation is generated because the executive which is the government, at all levels do not function as they should according to law and procedure.  Incompetence and corruption are the main reason and citizens are compelled to seek redress from courts at various levels.  That is why the bulk of the cases that are pending in various courts are in the category of citizens versus the state.  Elsewhere in this paper I shall show that the executive is either not working at all or is doing things that it should not do.  This apart a great deal of litigation is generated on account of our cultural traits.  And that includes the culture of our Courts.  Cases are entertained without proper scrutiny. Look at this case in the Supreme Court.  The case is about Mohammed Rafiq, his dog and his neighbour Mohammed Nazir.  Rafiq’s complaint was that his neighbour Nazir got the local municipality to catch his (Rafiq’s) dog and euthanise it.  Rafiq’s special leave petition from the decision of the High Court was admitted in the Supreme Court in September 2000 although it was barred by time.  The case came up for hearing in the Supreme Court on 22 March 2007 and was dismissed. If I had not seen this for myself, I would not have believed it.  Make an estimate of the number of hours the judiciary has spent on Rafiq and his dog, starting from the local magistrate’s court to right up to the Supreme Court. 

 I will continue with the Supreme Court and go to the lower courts thereafter.  In most countries you move the higher court on appeal after the case is disposed off by the lower court.  You cannot approach the higher court in the interim on some issue or other.  If you do, the higher court will not entertain your petition. This is not so in India.  Even as the main issue in the litigation is in the preliminary stages in the lower court, you can, if you have the money, hire a big lawyer and access the Supreme Court any number of times on peripheral issues.  The Som Mittal case which came up twice within a fortnight, illustrates that.  Invoking the writ jurisdiction of the Supreme Court to quash the proceedings even before the initial indictment is something that you will see only in India.  You need a big lawyer to persuade the Court to listen to you and big lawyer means big money.   It is a different matter that he did not succeed in this case but he got a hearing nevertheless. Not once but twice.     

There are other practices that baffle observers. The Cauvery river water case is an example.  The main blame for the delay must go to the principal litigants the states of Karnataka and Tamil Nadu.  In between they have gone to the Supreme Court any number of times delaying the final disposal. When the award was announced there was despair in Karnataka and celebrations in Tamil Nadu. Then, someone in Tamil Nadu floated a rumour that the opposition political party in the State had found a flaw in the award and was planning to call a statewide bandh (closure).  The ruling party in the government panicked and called for a statewide bandh on the following day pre-empting the opposition move.  I shall cover this episode later when I shall show that there is complete breakdown of law and order in some instances.  For the present we shall deal with the Supreme Court.  Apart from these so-called political activities, both Karnataka and Tamil Nadu filed clarificatory petitions before the Tribunal.  This they can do under the law. In addition, both states filed special leave petitions and appeals before the Supreme Court and the Court admitted the appeals. The law on River Water Tribunals seeks to make the award of the Tribunal final and therefore bars appeals from the award to the courts. Granted, the Supreme Court has inherent powers under which it can entertain any petition or appeal.  But is this a case in which that power should have been invoked?  A lot of time and a lot of money has gone into the proceedings before the Tribunal.  A person in Bangalore operating under the Right to Information Law, called for details on the money spent on lawyers by the Government of Karnataka. The State Government, according to the material furnished under the Right to Information Act, has spent Rupees twenty one crores as payment to Anil Diwan and Fali Nariman who were its lawyers before the Tribunal. What is the Supreme Court going to do with this case? The tribunal constitutes a judge who has retired from the Supreme Court and two technical experts on water resources. What is the additional wisdom that will be available to the Supreme Court that was not available to the tribunal?  And what additional wisdom will counsels Nariman and Diwan place before the Court that they did not place before the Tribunal?  And this case will go on for years and will be displayed as an important component of the enormous workload in the Supreme Court.

There are other practices that are difficult to understand.  Criminal cases relating to the stock market scandal in the early nineties provide good examples.  In fact this was more a banking scandal than a scandal in stocks.  Credit was extended to certain brokers against false bankers receipts or BRs as they are popularly known.  The Central Bureau of Investigation took nearly 10 years to investigate.  Justice Variava, then a judge of the Mumbai High Court, was the trial judge.  The trials went on for two years and more after which, the judge handed down convictions to some of the accused.  These included jail sentences for those who had fraudulently obtained credit from banks against forged BRs.  Some of these convicts went on appeal to the Supreme Court.  The Court stayed the convictions pending disposal of the appeals.  What happened thereafter is not in the public domain.  All this doesn’t look strange or awkward in the Indian conditions but watch for your reaction when I display recent cases from the United States that involved major corporate fraud. The first case is known as the Enron case and in a particular category is the largest corporate fraud till date.  The investigation took a year and a half and the trial by jury took 40 days.  Ken Lay who was the Chairman and Jeffrey Skilling who was the Chief Executive were found guilty and were convicted.  Ken Lay died shortly thereafter, before the sentencing.  Chief Executive Jeffrey Skilling was sentenced to twenty-four years in jail. Skilling is a Harvard Business School MBA, and was once a senior partner in the consulting company McKinsey.  Skilling’s lawyers filed appeals against the conviction.  If you scan the business press and the business media in the United States for that particular period, you will find tremendous support for Jeffrey Skilling.  No surprise.  If you study the case a little more intensely you will see the role played by the so-called big financial institutions in the fraud.  These include big ones like Citicorp, Morgan Stanley and others who were actually involved and partnered various segments of the fraud for a consideration in association with officers of the Enron Corporation.  You will also see that these institutions admitted to their involvement and paid hefty fines.  Let me get back to the court which is the subject of this paper.  When Skilling’s appeal came up before the Appellate Court, this is what the Court said - “Skilling raises no substantial question that is likely to result in the reversal of his convictions on all of the charged counts.” The point to be noted is that the sentence of the trial court was not stayed. Skilling’s appeal was dismissed. Jeffrey Skilling is serving a 24 year jail sentence.  In a similar case, Bernard Ebbers, Chief Executive Officer of WorldCom, then the largest telecommunications company in the United States is serving a jail sentence of 25 years.  Ebbers was found guilty of a fraudulent practice known as creative accounting that misled investors in the company on a massive scale. The second US Circuit Court of Appeals upheld the conviction.  The sentence of imprisonment was not stayed while the appeal was being heard.  The Supreme Court in the United States does not entertain appeals in cases of this nature. Law schools in India should research on what happened to the convictions handed down by Justice Variava.  It appears that High Courts are merely acting as intermediate watering stations with every case concerning rich and influential convicts coming up to the Supreme Court on appeal. The sentence is then stayed pending disposal of the appeal which may take a very long time to come up.

The way the Supreme Court of India goes about entertaining work is to a great extent responsible for the accumulation of arrears. The concept of time management is alien to this Court. I shall site a recent case to prove this. After retirement from Chief of Staff of the Indian Navy, Admiral Nanda set up an arms brokerage.  The Admiral retired in 1972. He is now very old. His son, also a Nanda, is now in charge of the business.  There is a case relating to purchase of the Barak missile system from Israel.  The details of the case are not material for us. While the case is under investigation, the trial court which is a Court of Sessions has impounded Mr. Nanda’s passport on a petition from the CBI.  Nanda wants to travel abroad and wants the passport to be released. You would think that this is a simple matter on which the Court of Sessions could pronounce finally?  In that case you are not aware how we conduct our judicial business.  The Court of Sessions would have said something.  Then you go to the High Court which would also have said something.  Then you come to the Supreme Court of India which apparently has the time to entertain your petition against the order of the High Court.  The proceedings commence with the judges telling the petitioner’s advocate to keep it short. That word in the current context must have a special meaning.  The hearing lasts for about three hours.  Augmenting the number of judges is not going to improve matters unless there is qualitative improvement in work practices. Admittedly there are wider ramifications to this case but those were not at issue at the present hearing.

We will now discuss the state of affairs in the High Courts. The total number of judges in the High Courts together, runs into hundreds. With this kind of numbers and the level of the remuneration that is paid to them, it would be unrealistic to expect any great quality in their performance.  This position is reflected in the frequent censure of the High Courts by the Supreme Court.  Often the language used by the Supreme Court is so harsh that it sounds like a reprimand. With the kind of remuneration that is paid, it is difficult to visualise a situation of improved quality.  The recommendations that I have made for a quantum leap in the remuneration of judges of the Supreme Court should apply to judges of High Courts too. It goes without saying that simultaneously, the process of selection should be in the public domain and totally transparent.  There is one procedural matter however that can be looked into immediately.  Cases in the High Courts are first entertained by a single member bench. There is a great deal of sense in a single member bench hearing and disposing cases if the matter were to end there. In reality, there is hardly any case where a single member judgement is not taken up on appeal before a division bench. In practice therefore all the effort and work by single benches in all the High Courts in the country are a waste of time. Also remember that in bulk of the cases the respondent is the State for whom expenditure on litigation is not a consideration. The situation is best illustrated by a case that is currently before the Madras High Court.  That is a dispute between two manufacturers of motorized two wheelers.  The first party is Bajaj Auto.  The other party to the dispute is TVS Motors.  A single judge has adjudicated in favour of Bajaj Auto.  Wait and watch for the TVS Motors appeal to a division bench. Thus, work is duplicated without any sense.

We will now look at the third rung which is the lowest rung in the judiciary.  It is also for practical reasons the most important level in the system because the bulk of the people who come into contact with the judiciary, do so at this level. There about 5000 district and additional judges.  The number of magistrates and the munsiffs together is in many thousands. Given this large number, it is unrealistic to expect any great quality.  Unlike in the past the prospects for bright law graduates have opened up tremendously in the legal industry and employment under government has become the last resort and for those at the bottom.  The judiciary therefore has to do the best in the circumstances. A great deal of skills development can be done if the training schools for young magistrates in the States are manned and conducted seriously.  This does not seem to be the case.  A district judge considers posting as the head of such a school as a punishment posting.  No wonder the product that comes out of the schools fail to impress.  A great deal of frivolous litigation is entertained and most of the time it appears to be for the sake of publicity.  An actor in a programme, advises young women to be careful when practicing sex.  A dozen cases are filed against the lady and acted upon with the great alacrity.  In some cases non-bailable warrants to compel attendance are issued in the first instance.  Entertaining frivolous litigation can be avoided if magistrates are trained at the school in the right manner on the proper way of scrutinizing complaints in the first instance.  You can examine the complainant, record the complainant’s statement, scrutinize the contents and then proceed to dismiss the complaint on merits for lack of substance. Advising young women to practice safe sex does not constitute an offence.  Magistrates must be trained to appreciate reality.  They are to be told that the governments in their country have installed automatic female condom vending machines in public places for protection of women.

Narayana Murthy of Infosys Technologies has achieved great success over two decades in designing, manufacturing and vending customized software.  It helped that the rise of Indian software companies coincided with the decline of a sick rupee.  The rupee fell from 10 to a US dollar to 49 to a US dollar. That helped to make us competitive and also to bloat our margins.  I have a disclosure to make.  As an investor in the shares of Narayana Murthy’s Company, I have made money in the past although currently I am holding a number of shares at a loss. The US dollar has declined and the Indian rupee has regained a fraction of its lost strength. The operating margins of Murthy’s Company and others of its kind have squeezed and the share value has declined. But that is not the subject of this paper.  Murthy talks a great deal of sense when he speaks of software but that is not necessarily the case when he speaks of other things. Like the national anthem for example.  The President of India visited the Infosys campus.  The national anthem is played.  Why did you not sing the national anthem?  Ask our busybody reporters. There are foreigners in the gathering and they would feel embarrassed if we sang the anthem - says Murthy.  On the following day guardians of India’s honour, file cases against Narayana Murthy in a number of courts in Karnataka.  No doubt Murthy made a stupid statement.   But a stupid statement does not constitute a criminal offence. The President of India as the Commander-in-Chief visits an army regiment. The regimental band plays the national anthem.  There are certain basics that magistrates need to be told at school. Senior judges must take a close view at the syllabus. And district judges who are earmarked for selection as Judge of the High Court alone must be posted as head of the school for training judicial officers.  That post should not be the dumping ground for the unwanted that it is now in most cases.


INFORMATION ON JUDGES ON PUBLIC DOMAIN

It is time to collect comprehensive data including financial details on all judges in India starting from the judges of the Supreme Court.  This information should be placed on the website of the Court.  Preparing this information on all the judges in India including the district judges will take time but information on the judges of the Supreme Court can be placed on the website within three to four weeks from date zero.  It is not possible to agree with Judge Sawant that judges of the Supreme Court must submit annual property returns as government officials and politicians holding public office submit property returns.  Judges of the Supreme Court are not politicians and government officials.  The people of India, through their Constitution have placed the judges of the Supreme Court in a very special position.  The Court can strike down a presidential order if it decides that the order is contrary to the provisions of the Constitution.  As and when any of the judges acquire an asset in excess of a hundred thousand rupees, they should be required to report that.  The information can be loaded on the web site within minutes under the particular judge’s list of assets.  I can access information on Judge Roberts within minutes. There should be no reason why I shouldn’t do the same on Judge Balakrishnan.

PROBLEMS OF CULTURE AND CHARACTER

Earlier I have referred to traits in our character as causing problems in our justice system.  I will select two important cases to illustrate this.  Mr. Bangarappa was Chief Minister in the State of Karnataka in the early nineties. For some reason, his government fell and he resigned from Chief Minister.  A new government took office in Karnataka with Mr. Veerappa Moily as Chief Minister.  One of the first things that the Moily government did was to file a case with the Central Bureau of Investigation (CBI) against Mr. Bangarappa and the then Chief Secretary Mr. Alexander under the Prevention of Corruption Act.  In Karnataka this is known as the Classic Computers case.  The substance of the complaint is that Bangarappa and Alexander placed orders for some Apple desktop computers on a firm called Classic Computers. How such an order could constitute an act of corruption is not clear.  There could have been some procedural lapse that might have caused an avoidable loss to the government. As orders go it was a small order possibly under ten crores of rupees. How an order of this size was chosen by the government to institute a corruption case against the Chief Minister, is for practical reasons a little surprising. Apple in the nineties had a great operating system far superior to Bill Gates MS-DOS, and CLARIS WORKS was far more user-friendly than Microsoft Office.  But Apple was very expensive and components were even more expensive.  (I should know, having been an Apple fan. I now use Windows for the sake of compatibility.) The CBI, true to tradition took a very long time to file a chargesheet. By this time, Mr. Moily had ceased to be the Chief Minister.  (The fact of Mr. Bangarappa having joined the Congress Party in the interim, had nothing to do with the slow speed of the investigation.)  The CBI listed Mr. Veerappa Moily as its number one prosecution witness.  It is most unusual in India for a former Chief Minister to be cited as the star prosecution witness.  Why the CBI decided to do that in this case we do not know.  Perhaps the CBI thought that the evidence of a person of the level of Mr. Moily would clinch the case for the prosecution and lead to the conviction of the accused Bangarappa and Alexander. When the examination of Mr. Moily commenced, he denied the complaint. The famous “I do not know anything” posture.  That was the last that the people of Karnataka heard of this case. Why did the CBI produce Veerappa Moily in person?  Is it because he positioned himself as the main complainant in the F. I. R.?  We do not know.  What we do know is that when the prosecution for the CBI began to examine witness Veerappa Moily, he (Mr. Moily) denied the complaint. How would such a situation be treated in a normal justice system framework? If you make a statement to the police alleging the commission of a criminal offence by a person or an organization, you will be summoned to give evidence at the trial.  If at the trial you deny having made the statement, you will be prosecuted for perjury and obstruction of justice.  It is not fair to expect that sort of an action from the CBI which is not an independent investigating agency. I understand that Mr. Moily is currently the Chairman of the Administrative Reforms Commission in India. The CBI has aborted this case.  Mr. Bangarappa sometime thereafter, dumped the Congress party and joined the BJP. After some time, he dumped the BJP and joined the Samajwadi Party. Each time he changed parties Mr. Bangarappa resigned his seat in Parliament and re-contested from his Shimoga constituency. And each time, he won.

The second case that I will take-up also has an important politician in the main role.  In fact, I have chosen these two cases specially to show that in India where important political personalities are concerned the law enforcement system and the justice system do not appear to operate in accordance with law.  I have earlier made a reference while discussing the workload with the Supreme Court, to the Cauvery river water dispute. When the award of the Tribunal was announced there was grief in Karnataka and rejoicing in Tamil Nadu.  Apparently the allocation of water for Karnataka looked small while the allocation for Tamil Nadu looked large. But on the evening of the day, there was some news that the opposition political party in Tamil Nadu had spotted a flaw in the award that was adverse to the interests of the State and was planning to call a bandh in protest. The administration panicked and decided to pre-empt the opposition by calling a bandh on the following day itself. So on the next day the entire State of Tamil Nadu was closed because the government decided that it should be closed.  Indescribable hardship was caused to the people.  Every economic activity, every movement and every office was made to close.  Tens of thousands of passengers, infants, women, the sick and everyone else was stranded at the railway station with nowhere to go, no place to sit, no food to eat, no water to drink. I want you to look at the reports sent by the Head of the Police in Tamil Nadu to the Home Ministry in Delhi. It says – bandh passed off peacefully.
 
Of course the bandh passed off peacefully.  The government machinery was enforcing the bandh forcing the people to stop doing whatever they normally do. The State of California, Governor Schwarzenegger wants the level of carbon emission from automobiles to be limited by law.  The Bush administration disagrees and advocates voluntary control by the industry.  What would happen if Governor Schwarzenegger were to call for a California bandh? ( I am making use of a fictional illustration.  Schwarzenegger is an extremely shrewed person and will not do anything that is stupid.) If the Governor was to call for a bandh, the State Attorney General would immediately Institute criminal proceedings against the Governor and ensure that the bandh did not take place. How is that possible?  It is possible because State Attorney General in the United States are elected by the people of the State and are not appointees of the administration.  On being elected and while assuming office, the Attorney General takes oath to uphold the law.  That he will do irrespective of who breaks the law. Unlike in the United States, in India, the Advocate General is appointed by the Chief Minister.  He comes with the Chief Minister and goes with the Chief Minister.  Similarly the Director General of Police is appointed by the Chief Minister and serves the Chief Minister. He, that is the Director-General, does not serve the law. That is why the Director-General, instead of indicting the Chief Minister, enforces the bandh ordered by the Chief Minister even as it violates every law in the book and causes misery to millions of citizens. The situation is one of complete breakdown of law and order and does not prevail in conventional civilised societies.

Having  run through two important politicians in power, I will complete my illustration of character with the conduct of well-to-do private citizens.  I have a son who is studying in Hong Kong.  The boy  is 16 years old and is on a visit to his home in India.  Late one evening, he takes my BMW 7 series sedan and picks up three of his friends.  Together, they do rounds of what are commonly known as exciting places.  Being sixteen, the boy does not have a driving licence.  Past midnight on the way back he loses control of the car, rides over the kerb, and hits a wall.  The front of the car it is badly smashed and what is more, three homeless persons who were sleeping on the kerb, have been run over and killed.  The boys come running back to my house.  In a hurry they have left their footwear behind in the car.  I ring up my lawyer.  He tells me to send my son to Delhi by the first flight in the morning.  He also tells me to get my driver to go to the police station and tell the officer in charge that he (the driver) was driving when the accident happened.  He also advises me to speak to the Police Commissioner and brief him informally.  The Commissioner knows that I am chummy with the Chief Minister and with the Leader of Opposition.  From time to time I make substantial contributions to the funds of their political parties.  I live outside India most of the time and I am not familiar with any particular case of this type.  But the conduct is so typical in the so-called upper strata of our society that people who read this paper will immediately identify this narration with some case or other with which they are familiar. What happens in a case like this?  How would you slot the conduct of my lawyer?  Would his advise qualify as privileged communication?  Would it amount to obstruction of justice, which in the United States is a very serious offence, that would lead his conviction and disbarment?

Or take another case. I am partying with friends in a small town in western India.  By the time it is evening, I am bored stiff.  Late at night, along with my friends I take my hunting rifle and go for a shoot in my sports vehicle.  I shoot and kill an antelope.  As we load the dead animal into the back of my vehicle the local villagers spot us and give chase.  We manage to escape with our kill.  The next morning the enforcement officials of the Forest Department of the local government come to the place where we are staying.  They seize my vehicle, my gun and the left-overs of the antelope carcass.  I am arrested.  My lawyer appears and gets me bail.  This happened five years ago and and the case is going on in the magistrate’s court.   My lawyer tells me that my case is likely to come up after one or two years.  It will be good if I am let off.  If that does not happen, my lawyer says that he will appeal before the next higher court and so on. For me this is a fictional illustration.  If it reminds you of reality that is because this is how things happen in India and this is how offenders with sufficient funds are guided by India’s expert legal advisers. Entering a plea of guilty is virtually unknown to Indian jurisprudence. If you have the money you must contest irrespective of facts.

 I have not been able to find any published research that has evaluated the professional conduct of lawyers in India.  In the United States though, lawyers as a class have not been held in high esteem by the general public.  How can I say that? By reading the public petition to President Teddy Roosevelt, seeking protection from “thieves, lawyers and charlatans”.  The Federal Bureau of Investigation was set up by Teddy Roosevelt following that petition. There are some categories of conduct of lawyers associations in India that baffle me.  There is a major case where an accused is alleged to have committed a number of heinous murders of minor females.  The victims are all from poor families and the local police have allegedly favoured the criminals.  The families of the victims and most people including the members of the local bar are all very angry, which is understandable.  What is unusual at least in the eyes of the rest of the world, is a resolution from the bar association that no member of the bar would defend the accused at the trial.  What is even more unusual is the second part of the resolution which says that the local bar would physically prevent any lawyer from outside the locality from coming to defend the accused at the trial.  The final act to the show is even more surprising.  On a day when the accused persons were being taken out of the court premises to the jail, they were assaulted among others by local lawyers.  In another part of the world, President Bill Clinton was debarred by the Arkansas bar Association for lying in the Monica Lewinsky affair.  That was followed up by President Bill Clinton being debarred by the Supreme Court bar. It would be difficult to do similar things in India but for starters some kind of basic decorum and professional discipline could be attempted.

There is considerable criticism that the Supreme Court is impinging upon the authority and functions of the executive by doing things that under law belong to the executive sphere. In the same breath, there is talk about judge made law. There is a lot of confusion in the thinking.  I can think of one perfect example of judge made law that has been working in India for some years.  These are the rules that require candidates for election to Parliament and to state legislatures to disclose information on a number of items regarding themselves. The power and the duty to make a law on this subject belongs to the Parliament.  But for reasons that you can imagine, Parliament did not do anything about this for years together. After some time, the Election Commission drew up a set of rules, circulated them to all recognized political parties and began to implement them.  Then Parliament came in and enacted a set of rules that according to law had to replace the rules made by the Election Commission. The good thing about this law was that all the political parties in Parliament had agreed to it unanimously.  The bad part of it was that the law was designed to conceal more than what was revealed.  There were public objections to this and petitions were made to the Supreme Court.  After hearing the petitioners and the respondents, the Supreme Court drew up a new set of rules.  These rules are in operation and apply to every election process to Parliament and to State Assemblies.  This is a classic example of Judge made law.  Surprisingly in the so-called debate that is going on in India no one has bothered to mention this particular set of rules. 

There are other interventions by the Court that have not been successful to the same extent. Some years ago the Court forced all the diesel buses plying in Delhi to convert to compressed natural gas. This improved the city’s environment to a remarkable extent. Not so any more. For each diesel bus engine taken out, a hundred or more diesel cars have been registered in Delhi and many times that number are on the way.  Make a note that most of the major manufacturers are setting up diesel car manufacturing facilities in India.  Diesel fuel is heavily subsidized in India and manufacturers of diesel cars are having a whale of a time.  Elsewhere in the world the price of diesel oil is equal to or even higher than the price of petrol and you will rarely if it all see a diesel driven car.

The other case that is very much in the public eye is the sealing of buildings in Delhi for violation of ground rules.  It is practically seal today, unseal tomorrow, seal the day after, unseal the next day and so it goes on.  I am unable to understand what exactly is going on.  Delhi like other places in India is a very corrupt place and people have made these deviations with the aid, advice and guidance of officials including those of the political variety.  Barring a minority that is petitioning the Court, the majority of the people seem to want it that way.  As a result orders of the Supreme Court are in effect coming to naught which is not good. 

When you say that the Supreme Court should not do what the executive is to do you are assuming that the executive is doing what it is by law required to do.  Unfortunately, it is not so.  In the public perception the executive is incompetent or corrupt or both. I have earlier cited the Tamil Nadu bandh to show how the executive at the top is working contrary to law. I shall site a few more instances that will further illustrate the state of affairs. I will take two states in India for the illustration.  These are Karnataka and West Bengal.  I have selected these two states because in the public mind they figure as better administered states.  For Karnataka, I will let Mr. Santosh Hegde speak. Mr. Hegde retired some time back as judge of the Supreme Court.  He is now the Lokayukta in Karnataka. After resuming his duties, Mr. Hegde visited the districts in the State and this is what he found -- Mr. Hegde said it saddened him to see how the system had changed from the initial years after Independence. The days when the executive was incorruptible and powerful were gone, and one no longer heard about the district Collector who refused to entertain an MLA or take a decision in the interest of the public.
"Politicians and officials have developed a cozy relationship in which there is no place for the citizen. The executive no longer feels it is wrong to put private interest above public interest. In fact, to many of them the salary they get is mere perks while the bribe money is the real salary," he said.

In December 2006 while dismissing the petitions filed by Railway Minister Laloo Prasad Yadav and Punjab Chief Minister Prakash Singh Badal, the Supreme Court ruled that the requirement of sanction for prosecution, did not apply to public servants being prosecuted under Section 19 of the Prevention of Corruption Act.   In Karnataka cases of disproportionate wealth against officers of the All India Services had been held up by the State Government raising some innocuous query or other as far back as1993. Following the ruling of the Supreme Court that did away with the requirement of prior sanction in cases under the Prevention of Corruption Act, Lokayukta Santosh Hegde started prosecution of the officers belonging to the All India Services.  No prizes for guessing what happened next. The indicted officers filed petitions in the High Court against the prosecution.  A single member bench admitted the petitions and adjourned the cases for hearing.   The Chief Justice of India was in Bangalore in connection with a conference of Lokayuktas. In that conference he said that Lokayuktas and the courts were working together to fight corruption.   No comment is needed.  You will now watch the process that I have described earlier which has become the trademark of our judicial system. Single bench to double bench.  Double bench to Supreme Court even before the prosecution has commenced in the trial court.  The situation can be described in rough and ready language as “have money, hire lawyer, hire lawyer have appeal, have appeal have stay, have stay be happy”.  There are thousands of cases of this kind at various levels of our judicial system. Venkatachala, also a retired judge from the Supreme Court, was Hegde’s predecessor. He did a lot of raiding, discovered a lot of unaccounted money and did a lot of loud talking. He could not send a single senior officer to jail. All his major cases are stuck at various levels in the Karnataka High Court.  The officials whom the Lokayukta had indicted are continuing in their professions.  Some of them have been promoted to higher levels. To his credit Venkatachala was able to get one or two junior village accountants convicted. For his part, Judge Hegde has strengthened the prosecution side of his organization.  He also claims to have discovered large amounts of unaccounted wealth in the possession of officials whom he has raided. On current trends, it appears that his efforts will meet with the same fate as those of his predecessor.

THE BENGAL CASE – THE DEPUTY COMMISSARS.

I will now look at West Bengal a State that claims to have a good government.  Let me display below what I call as Bandopadyaya speak.

 Mr D Bandopadhyaya, former Union revenue secretary, told the Governor that he and some other retired IAS officers were preparing charge-sheets against district magistrates of Hooghly and East Midnapore and all those police personnel who were responsible for mass killing and mass rape and incidents of arson and looting at Nandigram and Singur since 25 September last year. Mr. Bandopadhyay called on the Governor to apprise him of the worsening situation at Nandigram. He said they were collecting details of the acts of omission and commission of the guilty officers involved in the horrendous crimes committed at the two places. Each of these officers would be separately served charge-sheets and proceeded against through legal means. Mr. Bandopadhyay urged the Governor to tell the Centre to depoliticise the officers of all-India services (West Bengal cadre), because of their highly partisan behaviour during Nandigram and Singur operations. He said that popular perception about the role of these officers was so bad that the credibility of this all-India cadre had suffered badly.

I am not surprised. Under 30 years of communist rule, Deputy Commissioners in the State of West Bengal have become Deputy Commissars.



  I shall now cite an illustration to display the efficiency in the Government of India. The transfer of large stretches of land in the State of Goa to private interests in the guise of SEZ resulted in widespread public resentment and agitation. The government of the State initially tried to threaten the agitators. When this did not work, the State Government reversed its stand and withdrew the SEZ proposals that were pending consideration in the Union Commerce Ministry. It also requested that Ministry to de notify the zones that the Ministry had already notified.  Union Commerce Secretary Pillai appeared before the television cameras and made a statement that Special Economic Zones already notified under the law cannot be de notified. On the following day, Union Commerce Minister Kamal Nath appeared before the same TV cameras and said that the Special Economic Zones already notified would be de notified. That is a classic display of efficiency and accountability at the top level in the Government of India.

Granted that the executive is lacking in integrity, lacking in efficiency and lacking in accountability, is there a case for the Court to do what the executive fails to do or does badly?  The answer has to be a very clear no.  The people have elected their government and whatever be the state of affairs within the government, thanks to the Election Commission of India, which is an institution independent of the executive, the elections themselves have been transparent and fair.  The people have got their governments and the bulk of them are happy with what they have.  You can see that in Karnataka.  People pay hefty bribes to get into government jobs where salaries are very low.  Then they pay bribes to get postings of their choice. Nobody objects. A small number is after many years caught with tens of crores of rupees by Lokayukta Judge Santosh Hegde. Nothing happens to them. First the government protects them.  If that fails, they approach the courts which stay the Lokayukta’s prosecution. They buy seats for their children in medical colleges and in engineering colleges. And an entire new generation develops and grows on the capital accumulated by their fathers. That is a summary of life in India.  There is of course another India were 47 per cent of children are malnourished a percentage that is worse than the worst in sub Saharan Africa. I should not bring up these unpleasant things. I am sorry.  Let us get back to India’s achievements. We will have Formula One Racing and we will have Commonwealth Games Village.  We have a National Olympics Committee with an impressive looking Chairman.  It does not matter if we cannot win even a single bronze athletics medal in the Olympic Games.  We have the fastest growing number of billionaires in the world. 

That is India for you.  Full of contradictions. That is the peoples’ choice that they make freely once every five years. It is not the business of the Court to interfere in the life of the people in the guise of attempting to discipline a corrupt and incompetent executive.  It is the business of the Court to judicially review legislation and executive orders.  It is the business of the Court to induct a transparent mode of integrity at all levels of the judiciary commencing from the top and to display that transparency in the public domain.  It is the business of the Court to upgrade the skills of its members starting from the bottom.  It is the business of the Court to manage its time and docket so that it achieves control over its workload. It is the business of the Court to secure an adequate remuneration to all members of the judiciary. The current level of remuneration is only a fraction of what is needed to secure a decent life for the judge and his family.


THE ASSAM CASE

Now we will look at an area that is the legitimate territory of the Court but where its orders are ignored by the executive. This case is very important as it involves the very existence of a State in the Indian Union.  The State in question is Assam and the law is the Illegal Migrants (Determination Tribunal Act). Sarbananda Sonowal is the Member of Parliament from Dibrugarh in Assam.  In what is known as Sonowal’s case, the Supreme Court had said "Parliament had divested the Central Government of the power to remove Bangladeshi migrants, whose presence was creating a serious law and order problem." This was followed by a very significant statement: "A deep analysis of the IM(DT) Act and the rules would reveal that they have been purposely so enacted or made so as to give shelter or protection to illegal migrants who came to Assam from Bangladesh on or after March 25, 1971 rather than to identify and deport them." Indicating a major constitutional failure, the Supreme Court has even ruled that the Centre had not done its duty to protect Assam from "external aggression" due to continuance of the IM(DT) Act encouraging rampant illegal migration from Bangladesh". The order said that the IM(DT) Act, which contravenes Article 355 is, therefore, "wholly unconstitutional and must be struck down."

I have not seen any judgement of the Supreme Court of India that indicts the Parliament and the Government of India in stronger terms than in the Sonowal case. Both the Parliament and the Government have been held guilty of literally holding the gates open to illegal migrants from Bangladesh to come into Assam.  And what did the Government of India do? It did exactly the opposite of what it was required to do. Inevitably the case came up to the Supreme Court again and the Court had this to say.

In its 50-page verdict on the case, Justice SB Sinha and Justice PK Balasubramanyan commented that it appeared that the 2006 Order has been issued just as a cover up for non-implementation of the directions of the Court issued in the IM(DT) Act case.

“The Order of 2006, in our view, is clearly unnecessary in the light of the 1946 Act and the directions issued in Sarbananda Sonowal’s case. It does not serve the purpose sought to be achieved by the 1946 Act or the Citizenship Act and the obligations cast on the Central Government to protect the nation in terms of Article 355 of the Constitution,” the Division Bench remarked.

The present exercise is therefore seen to be not a commendable attempt to evade the directions issued by this court in the earlier round. That too, by way of subordinate legislation. Though we would normally desist from commenting, when the security of the nation is the issue as high-lighted by Sonowal, we have to say that the bonafides of the action leaves something to be desired,” Justice Sinha and Justice Balasubramanyan said.
The 2006 Order is therefore found to be unreasonable and issued in an arbitrary exercise of power, it requires to be quashed or declared invalid,” the Supreme Court said.

If you research to know what the Government of India has done after this indictment, you would find that the government has done nothing. In the United States Constitution there is no provision under which orders of the Supreme Court can be enforced and there was a problem in Worcester vs Georgia in 1832. But that has become a thing of the past and though no amendment to the Constitution was made the question of non-compliance does not arise.  The Constitution of India makes it is legally binding for the union and state governments to abide by and to enforce the judgements of courts.  Nevertheless many instances can be cited where the Government of India itself has not complied with the decision of the Supreme Court.  I have cited the Assam case as that is the most important.  Parliament and Government of India have virtually given away the State of Assam to Bangla on a platter.

ON CRIMINAL CONTEMPT

I have run out of time and it is not possible for me to attend in detail to the important and interesting subject of criminal contempt of court. In England there has been no case of criminal contempt of court in the last three centuries and in the United States of America there is no contempt like scandalizing a court.  For all our boast of greatness in recent times, comprehensively we as a people have not achieved the same level of maturity.  We therefore need an arrangement to deal with criminal contempt. I submit that the recommendation of the Sanyal Committee be implemented so that “Criminal Contempt of Court” be defined and the procedure for trial and the quantum of punishment be laid down clearly.  

MISCONCEPTIONS

I will conclude after discussing a few popular misconceptions.  The first one and the most important is about fundamental rights.  Often we hear someone or other telling us that the Constitution has given us our fundamental rights.  That is the language of the dictator.  What is given can also be taken away.  Fundamental rights are natural rights.  They are also known as human rights.  We have them when we are born.  Nobody gives them to us.  The people have placed the fundamental rights in the Constitution.  The people have also decided when reasonable restrictions can be placed on their fundamental rights in the larger social interests.  They (the people) have through the Constitution set up the Supreme Court to whom they have entrusted the authority to determine whether the restrictions placed on their fundamental rights by the executive are reasonable.  Whenever anybody tells you that the fundamental rights have been given to you, smell a dictator.  
 
How often do you hear that India is under policed?  This is another myth that governments in this country as well as the ignorant media keep uttering from time to time.  The British when they ruled this country divided the police into two categories.  The civil police whom they placed in the police stations popularly known as the police thanas and the military police whom they organized in the form of armed battalions. These armed police battalions were as a matter of policy kept away from the civil population and were brought in to control the population whenever there was trouble and disorder.  This system exists today only in some of the previous colonies.  In India we have held on to this system in a very tight embrace that we have never let go.  Add these numbers to the so-called civil thana police and India becomes the highest policed state in the world. On page 2 of this Web site, you will find a research paper on The Naxals.  In that paper I have analysed and discussed the deployment of armed forces of all kinds on what is known as internal security duties that includes anti-insurgency operations. An American reader mailed me a very interesting observation.  He said that excluding the navy and the air force, about 80 per cent of India’s armed forces (comprehensive for the army and the armed police of all types under the central government and the state governments) were deployed against its own people. That is some achievement. Sri Lanka comes close but that is a very small country. 

And finally, something that has nothing to do with the Constitution.  How often do you hear Bangalore being called the Silicon Valley of India.  Nothing could be more ridiculous.  Not because Bangalore is on a plateau but because hardly any silicon is used in Bangalore.  Bangalore is an important centre for the development, manufacture and vending of customized software (with very little IPR content).  Silicon is not used in making software.  Silicon is used in making microcircuits also known as microchips.  Major manufacturers of microchips are Intel and AMD.  Samsung is possibly the largest maker of memory chips. None of these have a major presence for chips in Bangalore.  So, Silicon Valley for Bangalore is a total misnomer.  There is no silicon and there is no valley.

                                                        END   OF   ARTICLE.



 

 

 

 

 

 

 

 

 

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