Recent months have witnessed many interesting legal developments in India. I hope that some of us who were active earlier can revive this blog. While it was alive, this blog provided a valuable forum to both learn about and discuss the transitions that are currently being experienced by the Indian legal system.
The latest issue of Frontline (Feb 09, 2007) has a cover story called “Judicial Challenge: Supreme Court judgment on Ninth Schedule triggers debate on separation of powers between judiciary and legislature.” Though focused on the I.R. Coelho case, it also contains additional commentary on the Raja Ram Pal case, as well as an interview with the Speaker of the Lok Sabha, Somnath Chatterjee, who continues to adopt the combative stance towards the judiciary he has been taking for some time now.
Writing about the Coelho case, V. Venkatesan asserts that it is “disturbing because it emphasises fundamental rights over the directive principles of the Constitution at a time when the neoliberal agenda of the state is being endorsed in various judgments of the Court” To make this claim, Venkatesan cites Indira Jaisingh’s analysis on rediff.com that Coelho is a potentially regressive decision.
While Venkatesan’s description of the details of the case is helpful, his analysis and conclusions are debatable. For instance, it is not immediately clear why the decision is necessarily anti-progressive. Indeed, one can argue, as Pratap Bhanu Mehta did in his Indian Express article appropriately titled “No dark spaces”, that the Court’s judgment in Coelho can be interpreted as advancing an ideal of public reason, where no governmental agency or authority can claim that its judgment or actions are the last word in a constitutional democracy. By asserting that the Ninth Schedule is no longer a “hands-off” zone, the Supreme Court is arguably advancing the claim that all public decisions in India must be subjected to rigorous scrutiny and debate. Of course, the obvious problem with this interpretation is that the Supreme Court does not include itself within this paradigm and has, as a result of its recent rulings in Contempt of Court cases, as well as the judicial appointments cases, reserved its own right to have the last word in several matters relating to the judiciary in India.
Somnath Chatterjee’s interview has many interesting statements, which showcase his strengths as a lawyer. This following statement builds the case for what is clearly problematic about much of the recent jurisprudence of the Supreme Court:
“You can see that these were all basically people’s wishes being given legal shape by the legislatures. That is why legislatures exist. To give expression to, and make laws to channel, the people’s wishes. With all humility, let me point out that the Supreme Court cannot make laws.
It would be a total misunderstanding of the Constitution to say that the orders declared by the Supreme Court would be the law of the land. In the process of declaring orders, the Supreme Court cannot create new laws. Nor can it amend laws. If there is some uncertainty about the interpretation of any particular law, it can clarify and come up with a clearer interpretation. But it cannot say that there is uncertainty in such and such a law and hence we are making a new law. And I have great doubts about the monitoring committees that are being set up. With all my respect to the Supreme Court, I wish to say that these are all unnecessary forays into areas that are to be basically defined by the legislature.
I do not know why this is being done when the judiciary has enough problems of its own in the form of huge accumulation of cases. (Emphasis added).”
Note the slight dig at the end, to emphasise the principal argument about democratic or popular sovereignty. Continuing in this vein, Chatterjee asserts:
“One of the primary tasks in politics is to recognise the aspirations of the people and the downtrodden and take steps to give them concrete shape. Make no mistake; legislatures have not been constituted to promote literary debates. As an instrument of the Constitution, the judiciary is also not a centre to promote legal learning. The institution is as much obliged to the people’s interests and has to see that it has a justifiable reflection in its functioning. Now, who understands the people’s interests better? Who is authorised under the Constitution to advance the interests of the people? It is the legislature. Now, an assumption is being sought to be built up that Parliament, as a whole, does not understand the public interest.
In my humble opinion, the judiciary must accept the legislature’s views on the public interest where it has been unambiguously expressed. The judiciary, sitting in ivory towers, is not even supposed to take part in political discussions. I think that this is an unnecessary controversy that is being created. Ultimately, it will not be good for the nation. See, I yield to none in my respect for the judiciary. But I am also a strong proponent of the constitutional provisions of the country.”
All these are propositions which are hard to disagree with, and are expressed in reasonable and persuasive terms. However, it is while discussing the MPs exclusion case, that Chatterjee’s reasoning becomes less convincing. On that issue, he is broadly supportive of the Court’s ultimate decision. Yet, he adds a rider:
“I must also add that the Court has come out with certain disquieting observations too while delivering the judgment. It has been held that legislatures in India cannot claim immunity from judicial scrutiny even in respect of their internal proceedings as such immunity militates against the Constitution. I would like to humbly submit that I do not agree with this. I had not said this earlier and I do not want to make an issue out of this because I am of the firm opinion that the situation that the Court has defined as suitable for judicial scrutiny would never arise. … … …
My humble contention is that no one is above the Constitution. If the Constitution of India has said that no court shall have jurisdiction over the internal proceedings of the legislature, the Court cannot annul it with some sort of interpretation. So, I am hopeful and I believe that the Supreme court, in its wisdom, will not in the future or ever accept any attempt to have such interpretations, which would allow an interfacing supremacy.”
The problems with this line of reasoning are clearly set out in A.G. Noorani’s searching piece describing and analyzing the January 10 decision of the Supreme Court in Raja Ram Pal, where he analyses the constitutional provisions, the historical context of Parliamentary privileges in India, and the leading cases that had analysed this issue in earlier eras. Noorani concludes that there is no basis for the claim – asserted by Chatterjee among others – that Parliamentary privileges are paramount, and are some kind of an inviolable space. Noorani criticizes the judgment of Chief Justice Sabherwal for, among other things, not clearly setting out that Parliamentary privileges in India are limited and cannot prevail over fundamental rights, especially the right to freedom of speech.
Whatever be one’s personal views on these two cases, it seems indisputable that they can justifiably lay claim to being ‘landmark’ cases.
Dear Mr.Thiruvengadam,
I liked your response to our cover. You have said “It is not immediately clear why the decision is necessarily anti-progressive.” I wish you read my other piece on the genesis of Ninth Schedule and Basic Structure Doctrine carried in the same story, wherein I went into the Parliament debates on Ninth Schedule in 1951. My thesis is that if Ninth Schedule was justified in 1951 for certain reasons, the same factors are relevant even today. Inded, Nehru’s speech in Parliament clearly suggests that he did not intend to confine Ninth Schedule to only land reform Acts. True, he refused to include many other Acts, suggested by other MPs. But his reasoning was that (if one can infer correctly from his speech) we should include those progressive laws in Ninth Schedule, for which the nation cannot wait for proper resolution by Judiciary, if challenged. The test for inclusion, in other words, is whether the nation can wait, without the risk of inviting social unrest or upheaval, for a progressive legislation to be tested by the judiciary for its validity.
V.Venkatesan
Dear Mr. Venkatesan,
Thank you for your comment. I have previously voiced on this blog my view that you are among the ablest journalists covering legal issues in India, and I should start by saying that it is a privilege to be engaging in this debate with you.
I did read your accompanying analysis of the historical backdrop which I found very useful. However, it does not change my view, which I should set out in greater detail. I suspect that we differ on our definitions of what amounts to ‘progressive’ politics.
I have not yet been able to develop a fully-formed judgment on what I think of Coelho overall, but one way of reading the case is as holding that the Ninth Schedule was problematic because it sought to (and did for several decades) create a legal black hole, where courts could not enter. Such a black hole is problematic in a constitutional democracy which upholds the rule of law. These situations are typically found in national security laws, often in the name of protecting the interests of the people.
As you are aware, the same government headed by Pandit Nehru was responsible for several anti-progressive laws relating to preventive detention and national security, which continue to haunt the Indian legal system, and consistently attract criticism from international human rights organisations which justifiably consider these measures to be extremely regressive. Many of these laws also seek to exclude or limit judicial review. Such limitations can also be considered ‘anti-progressive.’
My basic point was that reading Coelho in this way, one can see it as a decision upholding the rule of law, and requiring Parliament to debate the merits of particular laws, instead of seeking to immunize them from judicial scrutiny by putting them in the Ninth Schedule.
I also think that you put too much blame at the door of the Supreme Court for its ‘neoliberalism’. The court, at worst, could be accused of not interfering with policies of ‘neoliberalism’ enough. But it certainly did not cause these policies to be issued. It is the Indian executive and parliament which should be the target of your criticism on that count.
Your articles assume that whatever laws Parliament decides to put into the Ninth Schedule will necessarily be ‘progressive.’ I would argue that recent history (and even our history during the Nehruvian era) would give us much reason to doubt the truth of that assertion. To take but one instance, would you call the recent focus on SEZs a progressive measure? If Coelho had not come around, and the UPA govt decided to foreclose judicial review on this issue by putting a law facilitating SEZs in the Ninth Schedule, would you consider that a progressive decision?
My basic point is that whether a decision is progressive or not must be decided on a case-by-case basis, and not be looking to which institution made the decision.
I hope this clarifies my position, as well as our area of disagreement.
Best,
Arun
Dear Mr.Thiruvengadam,
I also wish to respond to your reply to my comments on our Cover story. You would understand that even with Frontline’s liberal allocation of space to such issues, it is not possible to do full justice, as there will be some areas which require more clarity and elaboration than what we have carried in print.
To begin with, the legal blackhole argument. I am equally uncomfortable with the concept of a legal blackhole, which the judiciary cannot enter. But we must look at the reasons for doing so. Even Nehru was unhappy while creating Ninth Schedule. Therefore, the test is to see whether the reasons are justified. I agree it has to be case-by-case analysis rather than a blanket justification.
My only regret with Coelho is that the Bench did not do this case-by-case analysis; nor did it have the intention or time. Instead, it left it to the Division Benches and the High Courts, which could play havoc.
Ironically, as my initial enquiries reveal, there has been a vacuum in legal scholarship on the Ninth Schedule laws (at least in the public domain – there may be individual attempts at writing theses, which I am not aware of). If time permits, I will be interested in doing the analysis of individual laws in Ninth Schedule myself. I agree that all laws in Ninth Schedule may not necessarily be progressive. I have not said so, or assumed it in my articles. If there are exceptions, let them be debated and the non-progressive laws in Ninth Schedule be exposed. The point is the Court had no patience for that kind of rigorous analysis. Instead, it seemed to be unhappy only because of the ‘huge number’ of laws in Ninth Schedule. Quantity of laws in Ninth Schedule ipso facto cannot make it untenable.
Secondly, the comment on neo-liberalism, and whether the Court could be blamed for it. My view is that the SC facilitates the pursuit of neo-liberal policies by either keeping a ‘policy is not my domain’ line, or granting outright approval, whenever it heard legal challenges on specific grounds. There are several examples, and it would require a separate essay to be written. Coelho is the latest example, where the Court gave a decision on the basis of its flawed assumptions, rather than on a rigid analysis of each and every law in the Ninth Schedule. Sadly, these flawed assumptions are likely to influence the Division Benches and the High Courts which would take up individual challenges to laws in Ninth Schedule.
Undoubtedly, Parliament has to debate the merits of the laws, placed under the Ninth Schedule much more seriously than what it would do with other laws. Again, I would suggest if there is a political consensus on a law to be placed under Ninth Schedule, will any point be served if we insist on a debate in Parliament just for the sake of it? Instead, I would urge the critics to point out, if they have any specific examples, on how lack of debate in Parliament resulted in a wrong law finding a place under the Ninth Schedule. I am not saying Parliament need not debate at all the laws under Ninth Schedule. Parliament must debate if there is a controversy on a law, and if there are divisions among the parties.
My view on progressive law is simple and in tune with how it was originally conceived; the test of a progressive law that can be placed under Ninth Schedule has to be whether its passage and retention under the Schedule are warranted because of the urgency of the situation, and whether the beneficiaries of that legislation (those intended under the Directive Principles) can no longer wait for the judicial process to resolve the challenges if any.
Your Comment on the possibility of SEZ Act being placed under the Ninth Schedule. I think we should be wary of the same fallacy adopted by the Supreme Court Bench in the Coelho case, that is, the possibility of abuse argument. If the SEZ Act does indeed get into Ninth Schedule – highly unlikely as there are intense divisions among political parties on its provisions, and in retrospect it appears it was passed without an adequate debate, there will be the force of public opinion, and the fear of democracy which will act as effective checks. The UPA Government has already frozen the policy, in view of assembly elections. In any case, the SC would come to the Govt’s rescue on SEZ Act – if recent decisions are any indication, and there is no compelling reason to keep the Act away from judicial review.
If the test for keeping a law under Ninth Schedule is strictly complied with – may be we could think of an amendment to incorporate this test within the Constitution- the scope for possible abuse will be very very limited. In any case, we still have no answers to the question whether successive Governments have abused the Ninth Schedule, and if so, could the critics cite any specific laws which in their opinion ought not have been in that schedule at all. I read Rajeev Dhavan’s piece “Constitutional dustbin’ in Times of India recently, but this question still remains unanswered. He, like the SC bench, appears obsessed with the quantity of laws in the Schedule.
Thanks and let’s continue the debate!
V.V.
Dear Mr. Venkatesan,
I am afraid I am going to have to disappoint you – I have actually found your detailed response much more persuasive, and since your central argument is that much more clear to me, I do not have very much more to offer in response.
In particular, I found your analysis of the SEZ example very clear and I think it articulates the strength of your basic argument. I also find your argument about the focus on quantity rather than quality persuasive.
I cannot, however, shake off my basic discomfort with the idea that any issue should be a “no-go” area for another democratic institution in a constitutional democracy. As I think I have tried to set out in the post about assertions of institutional supremacy, I find it problematic when any institution (and in India, one can find examples of this trend being displayed by both Parliament and the Judiciary) tries to claim the last word on an issue concerning public law.
I agree with you that we should be subjecting all public decisions to the highest scrutiny, and that we should expect full and clear reasons for them. On this count, the Supreme Court’s judgment in the Coelho case, as well as its judgments on many recent cases of import, clearly fall short. The way out, I would argue, is for people like us to demand higher standards and better articulated explanations (as you are doing for the Ninth Schedule issue).
My worry about legal blackholes is that they lead to the creation of a culture where the ideas of ‘public reason’ and public discourse about important issues is discounted, devalued and delegitimised.
I therefore think that we have far more in common that this debate would seem to suggest. I think we are motivated by principally similar concerns.
On a separate note, thank you for your engagement. Blogging can at times become a very lonely enterprise, and your expressed comments make this a much more pleasurable and intellectually satisfying experience, while also forcing me to think of the implications and nuances of my claims.
Best,
Arun