I thank V. Venkatesan for drawing my attention towards recent columns in the Business Standard by MJ Antony, several of which relate to ongoing legal developments in India. A month or so ago, Antony wrote a column titled ‘The Split Within’ focusing on an interesting debate about the limits of judicial activism between Justices S.B. Sinha and M. Katju. This disagreement among sitting judges of the Supreme Court (something which is increasingly rare in recent times) occured while a two-judge bench was seeking to decide the case of State of U.P. v. Jeet S. Bisht (decided on 18th May 2007). Antony’s article is now behind a subscription wall, and cannot be accessed for free. However, the judgment in the Bisht case is available on JUDIS (see links below), and I will post about it in the near future. I recommend reading the case to others on the blog, because it presents some fascinating issues, and resulted in a genuine, fairly contentious debate among Justices Katju and Sinha. Because of the inability of the judges to agree on how the case should be decided, it will be assigned to another bench, and it remains alive, which is an independent reason to study the case. The full text of Justice Katju’s judgment in the case is available here, while the text of Justice Sinha’s equally spirited response is here. I invite readers and other contributors to read the judgments and offer comments and reactions.
In a separate article published in yesterday’s issue, Antony focuses on some PIL cases decided by the Supreme Court in the first few days after it reopened following the summer vacation break:
| “The first week after the summer recess showed how varied and bizarre are the subjects dealt with by the court in [recent] PILs. |
| On the first day itself, the court delivered the judgement in a case, General Insurance Council vs State of Andhra Pradesh. It was in the nature of a PIL, as it sought a direction to the state governments to implement Section 158(6) of the Motor Vehicles Act. If this is taken as a precedent, petitions could flood the courts seeking the enforcement of the various provisions of hundreds of Acts. We are the most over-legislated country with a record for ignoring laws after they are passed by the legislature. |
| The General Insurance Council stated before the court that Section 158(6) cast an obligation on police officers to forward reports about death or bodily injuries sustained in road accidents to the claims tribunal and the concerned insurance company immediately. However, this is not done in practice. As a result, 1.5 million such cases are pending before various courts. Since such reports are not forwarded within a reasonable time, investigation and verification of claims become difficult. It becomes easier to fabricate evidence, make exaggerated claims and commit fraud. Insurance companies suffer on account of the higher claims and cost on account of the delay in the adjudication of claim petitions. |
| It is difficult not to sympathise with the insurance companies. But what can the courts do in such instances of total abdication of responsibility by the executive authorities? Observing that there was no justifiable reason as to why the legal requirements are not followed, the court passed the following directions: “All the state governments shall instruct, if not already done, all concerned police officers about the need to comply with the requirement of Section 158(6). Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case of non-compliance, appropriate action shall be taken against erring officials.” Such directions are superfluous as the law is already there and the court orders help little to improve the current mindset. They will go the same way as the judgements banning smoking, littering and spitting in public and prescribing norms to improve the chaotic public transport system in the national capital. |
| Another judgement of the same genre, PUCL vs Union of India, asked the state governments to make operational 2.72 lakh anganwadis funded by the central government. It would seem that the governments need orders from the Supreme Court to do their duty. |
| The Supreme Court then delivered another judgement in what it called ‘private interest litigation’. In this case, National Council for Civil Liberties vs Union of India, it was alleged that Narmada dam activist Medha Patkar was motivated by foreign funds and her financial sources should be investigated by the CBI. The court stated that the petition was filed to discredit and diffuse her agitation for rehabilitation of the displaced persons from the dam site before submergence of their habitat. She appeared to be genuinely concerned with the issues. The judgement also said that the petition, without any evidentiary support, was filed out of a grudge harboured by one V K Saxena against Medha Patkar. |
| Then there is a maverick bunch of petitioners who are trouping to the courts with frivolous prayers. The count for the past week was more than 20. Their prayers included the following: India should be renamed Hindustan; the Arabian Sea should be called Sindhu Sagar; the national anthem Jana Gana Mana should be replaced by the one offered by the petitioner (and partly sung before the Chief Justice); the Prime Minister should be summoned to the court to respond to these requests; and so on. |
| When the PIL movement was conceived in the late seventies, it was meant to help those who could not approach the courts because of illiteracy, backwardness or inability caused by detention or social conditions. Prisoners, women in distress and children in bondage were some of the genuine beneficiaries. However, now even passengers angry at the delayed departure of planes or congestion charges dash to the courts with PILs. There is a department in the Supreme Court which receives hundreds of such complaints. They vet these petitions before placing them before the court. The hearings of the past week show that the PILs need tighter regulation in the back office.” |
Antony’s column echoes arguments and concerns raised even by those who have in the past been sympathetic to, and ardent promoters of, PIL, including Prashant Bhushan and former Chief Justice Verma. The Supreme Court has for over two decades highlighted the need for regulating PIL carefully to ensure that it remains wedded to legitimate purposes. Antony’s concluding comment is bluntly critical of the PIL division of the Supreme Court’s Registry which vets PIL petitions.
I am not sure, however, if the remedy for the problem he presents is simply requiring Registry officials within the PIL unit to be more stringent. That would vest a great amount of discretion in registry officials, which would, in the absence of clear guidelines as to how that discretion is to be exercised, lead to other, equally serious problems. Part of the reason why PIL has had such a multi-faceted character and unpredictable trajectory is because efforts to rein in or guide the direction of PIL have not met with much success, whether they were initiated by individual judges within the Supreme Court or by people within government who were unhappy with particular trends in PIL cases. Some of us may consider that to be a good thing in general, but these cases do point to the need for some kind of intervention by Judges of the Supreme Court (and not registry officials) to lay out broad guidelines on the limits of PIL petitions that can be entertained.
Update, 3.30 pm: I’ve added links to the full text of the judgments in the Bisht case, which are available on JUDIS, for those who might want to read the case.
Hi,
Would someone care to comment on the Kafkaesque treatment of the Indian doctor in Australia! It might seem a bit early to comment; but I doubt if anybody would be forced to eat their words for criticizing the Aussie government in using an apparently innocent man to stoke up hysteria and panic before an election.
Personally, I think Indian anti-terror laws are a bit more sophisticated and evolved than those in the US, UK or Australia. It’s been a steep learning curve from the days of TADA and besides we don’t really have the element of cultural barrier in dealing with these things.
Raj
Kudos for drawing attention to State of U.P. v. Jeet S. Bisht which I think is the perfect case for a discussion on judicial activism. The separate opinions seem to reflect the ideal prototype of arguments presented by the two sides in any debate on this question. No surprises in either of them: J. Katju’s opinion reflects the traditional notion of restraint and need for deference to the other branches while J. Sinha’s riposte included known elements of the case for activism – acceptance of the court’s advice by the government as shown by its willingness to incorporate elements of its ipse dixit orders in evolving policy/legislation, the repeated references to ‘modern’ trends where ‘flexibility’ is the norm and the court’s progressive role in creating new rights and fostering them sometimes through continued monitoring – all raising the same questions asked before – grounds of authority, accountability and the role of the judiciary vis-à-vis the other branches in our country. The additional question is whether it is too much to expect something even approximating equal justice under law under the current system of case allotment given the profound philosophical differences, so starkly on display here, amongst individual judges.
The other point about judicial activism in general is that several leading lawyers and judges seem to be advocating different lines to be drawn in regulating PILs. The trouble appears to be that none can cite a good rationale as to why their scheme is any better than the others. Also, barring a few exceptions the entire focus of these debates as I gather from newspapers appears to be more on ‘how much’ rather than ‘whether’ with the strongest case against it being that intervention is inadvisable where the issue is too complex or for whatever other reason is not ‘judicially manageable’ with relatively little being said about the textual, traditional or historical basis of such a course. Most commentators’ views also appear to have been deeply influenced by the tumultuous events of the ‘70s and even those who view the activist trend with concern often temper their otherwise dispassionate constitutional critiques with citations of the exceptional circumstances that necessitated the ruling in Keshavananda Bharati and how that and those opinions and legal structures based upon it have done yeoman service to the cause of liberty in India – my point here is not about the merits of that judgment or the benefits flowing from it but about such exceptionalism in their essays which by contradicting the very principles they are trying to promote, robs their arguments of much of their moral force. In summary, I think a large part of the current debate is halting, unsure, based on the desirability of outcome of a given case thereby missing the forest for the trees and sometimes controversy-sensitive rather than based on robust, well-articulated principles that promote an alternative vision of an ideal system.
Thanks, Dilip, for your typically insightful analysis. I agree with you that the Bisht case is profoundly important, and presents a great opportunity to debate principles of judicial power and constitutional theory. As you note, the two judges present some of the most compelling arguments for their respective camps. I was intrigued by the extent of references on comparative legal literature and foreign cases in both judgments as well. I am in the process of studying the case closely for an academic paper,and will try and post about it later as well, where I will invite your further comments.
Moving on to your second point, I think you’ve identified the Achilles heel of much of existing constitutional theory: the inability of scholars and jurists to be able to provide truly ‘neutral’ principles of adjudication and interpretation. What you have pointed out for India is equally true of U.S. constitutional scholarship, and many people consider the project an impossible one. So much so that people who do try and evolve such ‘objective’ and ‘neutral’ principles are derided as either naive or intellectually deficient. Many people who try and do so fall into the trap of trying to justify cases that do not conform to their own theories, but whose results are more palatable to them, based on their personal worldviews.
Decisions like Roe v. Wade pose a problem for many liberals who believe in the right to abortion passionately, but are unwilling to concede the weaknesses in Justice Blackmun’s opinion in Roe. This, despite the fact that the conservative decisions they bemoan about often have a stronger basis than Roe. Of late, liberal scholars in the U.s. like Jack Balkin and Sanford Levinson have started endorsing their versions of ‘originalism’ and acknowledge that paying close attention to standard interpretive strategies (of history, text, purpose that you identify) is important in order to encourage a tradition where these constraints are taken seriously.
Although I am not usually a fan of mimicking practices in other jurisdictions, I believe that liberal constitutionalists in India may also need to do likewise to avoid the problem that you have so sharply focused upon and identified.
Thanks for a very interesting post. As Dilip points out there is nothing really novel about the arguments put forward by Katju J. and Sinha J. Both philosophies have been espoused before by the Supreme Court, albeit not in a single case.
That said, I have grave misgivings about Sinha J.’s judgment, though I have the greatest respect for his erudition. I feel that it doesn’t really answer any of the criticisms levelled by Katju J. It seems to rest on the following premises-
1. It is alright to ignore constitutional and statutory provisions as long as the parties before the Court connive with the Court in doing so. A sovereign legislature cannot abdicate its powers in this manner, and the mere fact that counsels before the Court were amenable to its passing directions is no defence to the charge that the orders passed were illegal.
2. As the Consumer Protection Tribunals are judicial fora, the SC is entitled to interfere in their administration and conditions of service as the apex court. There is no constitutional provision to bear this out. This is also ignores Parliament’s contrary intention as exhibited in the text of the CPA.
3. Bunging in enough foreign references (Dworkin, Bruce Ackerman et al.) is sufficient to gloss over the fact that the Court is rewriting the statute.
Sinha J. also refers to Union of India v. S.B. Vohra, an inapposite reference, since the very passage he extracts indicates that there Art. 229 entitled the HC to have a say in service conditions.
References to other SC decisions which suffer from the same defects as those pointed out by Katju J. are of no help. Constitutional courts are normally not bound by prior precedents precisely because, in their field of action, the perpetuation of errors can have dire consequences.
I am not indifferent to the argument that legislative indolence requires judicial activism. I just don’t think that it justifies rewriting constitutional and statutory provisions without acknowledging this is what is being done. It is constitutional hypocrisy, which abandons the constitution to the personal predilections of judges. This trend and it’s pitfalls were eloquently characterised by Alex Kozinski of the Ninth Circuit in Silveira v. Llockyer> The passage deserves to be set out in full-
“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States,389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional
guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.”
Perhaps the present distribution of powers in the Constitution needs to be considered afresh in view of the degeneration of the legislative and executive organs. However, the judiciary should call for such a change openly rather than resorting to subterfuges and a creeping expropriation of legislative powers.
To end, I find Sinha J.’s criticism of Katju J. in para 43 unjustified. If the prior judgments, larger benches or not, were passed sub silentio, Katju J. was entitled to state his view. He should perhaps have considered having them placed beofre the CJ, in consequence of the view he was taking, that they may be reconsidered. As to Sinha J.’s judicial restraint jibe, perhaps he forgot that Katju J.’s brand of judicial restraint permits saying things like “people like you should be hanged from lamp posts” in open court.
Reference : Indian Doctor in Australia
On The Hindu’s website:
“The transcript of the interrogation of Dr. Mohammed Haneef by the Australian Federal Police on July 3, 2007 in Brisbane was published by The Australian on its website. The 142-page document was later removed from the website. An editor of the newspaper told The New York Times that there had been “tremendous pressure” from the government.
The transcript as it was put out by The Australian is being published here to advance public understanding of the details of the case.
It is available both as a single PDF file (22.1 Mb) and as smaller PDF file segments for easier download.”
The link is http://www.hindu.com/nic/0058/haneef.htm
Thanks, ROTB, for the detailed comments on the Bisht case, which will help me as I develop my own analysis of the case.
Those who support Justice Sinha’s judgment would of course provide counter-arguments to those you’ve stated. They can, for instance, rely on precedents such as Kesavananda where the express words of the constitution or the clear intent of framers did not prevent judges from adopting a different view as the law of the land. Interestingly, Justice Sinha relies on ‘purposive’ modes of interpretation, and if his perception of that is as expansive as that of Aharon Barak , then all kinds of activist interpretations would be justifiable.
I am intrigued by your reliance on Kozinski’s quoted statement, and I’d like to focus on that by going outside the context of the Bisht case, and considering its merits independently. While the quotation you cite is appealing, Kozinski is seen as one of the judges in the vanguard of the conservative right movement in the U.S. As this profile shows, he is not above using his office for bringing about constitutional changes that he deems legitimate.
Kozinski makes a great virtue of consistency, and by his standard, a judge who consistently adopts narrow, literal meanings of provisions, regardless of whether they reach normatively sound results, would be a good judge (he says this explicitly in the quote you cite). To me, this is deeply problematic as well. Consistency is no doubt an important attribute in a good judge, but the ability to size up different situations and a willingness to adapt rulings to peculiar situations, is also necessary. By harping on consistency, Formalists like Kozinski miss out on the practical problems posed by everyday cases.
If judging is all about reaching consistent results, then its a simple matter of clerically applying prior precedents to new situations. Clearly, that is not a tenable view of the judicial process. While Kozinski and other Formalists are right to warn us of the dangers of judges imposing their personal ideologies upon cases, the solution they propose is not particularly satisfying either.