Some background information and thoughts on angry bar-bench exchanges

In the previous post, V. Venkatesan drew our attention to the exchange between Additional Solicitor General Vikas Singh and a Supreme Court bench hearing the ‘Delhi sealing case’. In doing so, he emphasised the unusually aggressive words traded between ASG Vikas Singh and Justice Pasayat. The two people who have commented on this post so far have expressed disapproval of this incident, and appear to place more of the blame on the law officer involved.

As it turns out, the two main protagonists appear to have a history of such aggression. As this piece in the Hindu, dated April 29, 2007 points out, they had clashed earlier, in the longstanding Forest case. There, while objecting to what was perceived as unwarranted judicial interference in the making of policy decisions by the government, ASG Singh is quoted as saying:

“There is no judicial emergency provided under the Constitution to take over the functions of the Government. “

The Hindu piece further describes the ASG’s exchange with the bench as follows:
“Seeking to vacate the stay [issued by the Supreme Court upon a notification of the Union Ministry of Environment and Forests], Mr. Singh literally questioned the court’s role in monitoring the “forest matter” for nearly a decade. “It is not as if only the Supreme Court can protect the forest cover,” he said. He reeled out figures to show that there was no depletion of forests, thanks to the enactment of the Forest Conservation Act and not because of the court’s intervention. It should not pass orders on assumptions or be guided by other factors. The Bench replied, “We have no assumptions, nor we are guided. Many things are said these days. We are not concerned about what they say. We will see to it at the appropriate time and say what action is to be taken.” Referring to the stay on the functioning of the FAC, Mr. Singh asked on what basis the non-official members appointed to the FAC could be removed once they fulfilled the requisite qualifications. He wondered how a stay could be granted when there was no petition challenging their appointment. The court could not assume the role of the Government when a committee was validly constituted.” More details about the case can be found in the rest of the Hindu piece. Though the description of the case is not clearly set out, the piece seems to indicate that the bench comprising Chief Justice Balakrishnan and Justices Pasayat and Kapadia took the ASG’s submissions seriously and moderated the earlier order. However, this story in the Indian Express dated July 2007 suggests that ASG Singh was subsequently taken off the case as a direct result of his having adopted such an aggressive tone in the hearing.

The common judicial personage in both these exchanges is Justice Pasayat who, as we have noted earlier on this blog, has a strong claim to being the most activist judge on the present Court. It is not clear whether ASG Singh is following instructions in taking such a hard line stance against judicial interference in policy matters, though the presumption would be that he is. His strong assertions may well be a reflection of the government’s view that for the reasons that V. Venkatesan has identified in his post, the Court should not press on with this issue right now. There seems to be more to this issue than meets the eye, and the coming days will probably reveal more about this issue.

On the subject of bar-bench exchanges, I am all for civility and agree that the bar bears a higher burden to ensure that the two groups treat each other with respect. One is reminded of the V. C. Mishra episode, and lawyers certainly should not get away with trying to browbeat judges. However, focusing on the two cases where ASG Singh has taken such an aggressive stance, and bearing in mind the fact that Justice Pasayat does not appear to the meekest of judges himself, I cannot help wondering about the merits of the issues advanced by ASG Singh. I leave aside for now the tone he adopted, of which I do not approve, and which may have a personal edge given his run-ins with Justice Pasayat. Yet, the two cases seem to reflect clear instances where the Court had no real, legal basis for the judicial actions it proposed to undertake. Should we also not be focusing on the substantive issues at stake in these cases?

Legal commentators have for long acknowledged that the Indian Supreme Court has adopted an extremely cavalier approach towards grounding its decisions (particularly those in PIL cases) in hard law (whether statutory, administrative or derived from precedents). In most such cases however, the Court has been given a pass since it was perceived to be acting in the larger public interest. These two cases involving ASG Singh do not, however, fit squarely within the paradigm of clearly justifiable cases where the legal basis of the Supreme Court’s adventurism can be treated casually. Especially in the ongoing sealing case, there are serious questions of law involved, especially those affecting the rights of underprivileged sections of Indian society. Perhaps it is time to focus on the merits of ASG Singh’s claims, beyond the tone adopted by him to espouse them.

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  • The ipse dixit orders on the sealing question seem to have more to do with the SC’s perception that the government is lax with law breakers for fear of losing support and willing to do their bidding. That appears to have been the same ground for the IMDT judgment a while ago where the SC conjured up an outlandish interpretation of Art. 355 to give its illegal order a constitutional cover. Now that the ASG has been reinstated to represent the government in the sealing case, I wonder whether taking him off in the Forest case signaled governmental displeasure or was actually a deliberate good cop – bad cop approach adopted by the government towards the SC. Over the last few years, it appears to me that the government has been getting gradually tougher with the SC and this is just the latest round of this ongoing bout. The idea seems to be to temper its activist urges on a case by case basis (at least in important cases such as this one where the consequences are far reaching) rather than to wage any principled struggle against the tendency itself. The fact that the government does not appear to have challenged the right of judges to constitute advisory committees is consistent with this notion. This might be (a) a strategic decision taken after an assessment of the approaches of senior judges in the court as it is currently composed or (b) a fatalistic acceptance of activism in principle simply because it has gone on for so long and so many landmark precedents have accumulated that it would be arduous and self-defeating to seek such a reorientation of the direction of jurisprudence or (c) a combination of the two. In any case, the Court seems to have become more cautious of late though it has been holding out on such pet causes as this one. The eventual outcome of these differences is likely to be no resolution of the legal questions but the evolution of a modus vivendi where the Court, as P. B. Mehta puts it, will continue to retain enormous discretionary power officially but seek to exercise it only selectively when it believes public opinion favors it and conferring partial victories upon enough stakeholders to keep the system from being acutely destabilized.

  • Thanks for that insightful analysis. Let us hope that things become clearer as this particular case progresses. I sometimes wonder, however, whether individual judges who we focus upon act with as much strategic deliberation as theorists ascribe to them. Sometimes, people act in particular ways because they feel they can get away with it.

    The more I see of recent Supreme Court judgements, the less I feel that there is any longer an urge among judges to fully and properly justify the legal basis of the unprecedented, “innovative” actions that they so routinely undertake. In some other jurisdictions, academics perform the role of critics who closely analyse judgements, and judges both check for and read the prominent academic journals where their judgments are reviewed. In India, this might have been the case in earlier decades, but is clearly not the situation now.

    Perhaps if we have more such incidents (such as the ASG Singh-Pasayat exchange), and the government does start putting pressure on judges to justify their excursions, we will see the return of a strong(er) culture of justification.