Call for Applications: The CLPR Equality Fellowship

(Call follows below. – Ed.)

At the Centre for Law and Policy Research (CLPR), we focus on addressing discrimination at the intersections of caste, gender, sexuality, and disability and other minorities through law.

As a part of this work, we are excited to announce The CLPR Equality Fellowship.

CLPR will select 6 Equality Fellows to engage in litigation and advocacy that responds to intersectional discrimination in the states of Andhra Pradesh, Karnataka, Kerala and Tamil Nadu. We invite young lawyers who are motivated and committed to working with equality and anti-discrimination law to apply for this 2-year Fellowship.

The Equality Fellows will engage in litigation and advocacy in the states of Andhra Pradesh, Karnataka, Kerala and Tamil Nadu, to work with communities facing discrimination on the basis of caste, gender, disability, sexuality, gender identity and minority status. This will include enhancing the implementation of various equality laws including: The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act)The Protection of Civil Rights Act, 1955 (PCRA)The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (The Manual Scavengers Act)The Rights of Persons with Disabilities, 2016 and others.

The CLPR Equality Fellowship is a paid, two-year opportunity which will be awarded to 6 young lawyers keen to pursue the practice of public interest law on a full-time basis.

CLPR will provide the Equality Fellows with training and support necessary to make an impact on the quality and delivery of legal services to marginalised communities.

Eligibility

  • Successful candidates will be young, talented lawyers who demonstrate a strong interest in rights-based advocacy and a commitment to public interest law
  • Law graduates with an L.L.B degree who have a minimum of 2 years of litigation experience
  • Applicants should be registered and enrolled with the Bar Council of India
  • Should have a working knowledge of either Kannada, Telugu, Malayalam or Tamil
  • Should have excellent writing and drafting skills
  • CLPR is an equal opportunity employer and strongly encourages persons from SC/ST backgrounds, minority religions, LGBTQI+ persons and persons with disability to apply

Application Process

Applicants must submit:

  1. A signed and completed CLPR Equality Fellowship Application Form
  2. Two (2) writing samples (published articles, essays, blog posts) between 500-2000 words
  3. Resume/CV
  4. Applications to be submitted by December 30, 2018, 11:59 pm IST

Please combine all attachments in a single PDF file labelled with “[Your Last Name], [Your First Name].” Email the PDF file to saumya.dadoo@clpr.org.in with the subject line: “[Your Name]- Equality Fellowship Application”  

Source: https://clpr.org.in/blog/call-for-applications-the-clpr-equality-fellowship/

On the Ethics of Representation in an Adverserial Legal System: A Rejoinder (Guest Post)

(This is a guest post by Shankar Gopalakrishnan).

Gautam Bhatia and Goutam Shivshankar recently have had an illuminating and extensive debate (see herehere and here) over the ethics of representing “immoral” clients – one of the more vexing questions that confronts not only lawyers but anyone attempting to understand or engage with the legal system. In this specific case the question revolves around MJ Akbar’s decision to file a defamation case against those accusing him of sexual harassment and assault, and how morally correct it is for lawyers to choose to represent such a client in such a case.

Bhatia and Shivshankar approach this question from the angle of the ethics of the legal profession. But the ethical dilemmas around the Akbar case are rooted fundamentally in questions of power. Hence I would like to approach it from a different angle – what is the functional place of the legal system in power relations within the social system we have? Or, more broadly, what role does it play in society?

The ideas advanced below derive from the Marxist tradition, but I don’t think one needs to be a Marxist to see their merit. This argument only requires acceptance of two propositions: 1) that we live in a society, and a world, deeply riven by structures of oppression and injustice; and 2) that there are constant struggles over these structures, both by the oppressed attempting to resist or end their oppression, and by oppressors seeking to consolidate, extend or modify it.[1] One should note that I’m not taking the position that there is just one single class or section of oppressors; all that one is postulating is that there are structures of oppression and struggles over them.

In such a context the logical next question is – why then do we live in a global and national system that is broadly ‘stable’? Stable in the sense of not descending into chaos nor experiencing mass political revolutions, most of the time. How, in other words, does this system broadly succeed in reproducing itself? Or, to use the more common formulation, “why don’t people rise up?”

The broad answer appears to be that all modern political systems operate on the basis of some kind of an unequal and unjust compromise – one where certain interests of the oppressed are conceded while preserving the core structures of oppression. But since this is never actually enough to address the issue of oppression, this system is also fundamentally unstable. There is a constant struggle over what will be conceded and what will not be conceded.

Those familiar with Marxist thinking will of course recognise this as a very vague and oversimplified definition of the Gramscian concept of hegemony. But too often, both on the left and otherwise, hegemony is mistaken to mean some kind of ruling class conspiracy, whereby fake ideas are implanted in people’s minds and the oppressed are deceived into believing in their own oppression. In reality, no oppressive or ruling class in history has had some magic universal ability to see the future and conspire to avoid it all the time; and more importantly no class of oppressed has been such docile sheep. The reality is that the concessions that are granted are almost always the result of struggles. Hegemony is not and can never be a purely one-sided process. The issue is not that the oppressor figures out what “crumbs to throw to the masses” but that oppressors concede out of compulsion. But in the process of conceding, those in power attempt to defuse and twist the struggle away from their core interests. One of the fundamental ways in which this happens is not only by ‘deflecting’ the issue but – to use the phrasing of Nicos Poulantzas – by a constant effort to organise the oppressors while disorganising the oppressed.

Let’s for instance look at Indian labour law, which is a stark example of this process in action. The fact that labour laws exist at all is a result of prior working class struggles and the fear of future working class organising. No capitalist wants these laws and there is a constant effort to get rid of them, which in turn meets further working class resistance. What emerges from these struggles is a legal regime that simultaneously enshrines some progressive principles on paper while being specifically and explicitly structured to disempower the workers themselves. Hence we have the fact that, while non-payment of wages, violations of safety requirements, etc have been made criminal offences, the laws then bar workers from filing complaints directly (only labour inspectors or, for construction workers, unions can file cases). Strikes are allowed but then subjected to conditions and restrictions that make them far more difficult to carry out. Numerical limits and arcane exemptions exclude the majority of Indian workers from labour law and impose a burden of proof on them, indirectly, to show that the law applies to them in the first place. All of this has the effect not only of denying workers their rights but of actively disorganising them, preventing them from exercising and thereby experiencing their collective power.

In other words, the very victory of workers – the existence of labour law – is turned into an instrument of trying to ensure their future defeat. But, again, no instrument can actually ensure that; what happens instead is that the conflict moves on to a new terrain. If those organising manage to build on their victories, they move on to a more liberatory ‘next’ stage in their struggle, and if not, they are thrown on to the defensive until they are able to do so. One can see the same pattern in many other spheres of society – such as caste reservations, women’s struggles, or even the process of democratic elections itself.

Coming back to the courts, the question arises – what role do they play in this dynamic? Again, I want to avoid the approach that simply dismisses the legal system as some kind of oppressive fiction intended to be a deceit on the population (though to many of us it often feels that way). If that kind of trickery were feasible, it could be achieved far more easily. In reality the process of law-making and adjudication is a core structural element in every modern society’s political process and it is in many ways the central landscape of political struggle. In this too there are liberatory possibilities. Fundamental rights, the progressive aspects of the Constitution, the idea of a ‘rule of law’, the court system’s procedural guarantees, and even the ‘cab rank rule’ – which we come back to below – are all victories against oppressive systems (most of all, of course, the ones that are somewhat over-broadly described as ‘feudal’[2]).

But, that said, it seems to me clear that, out of the entire landscape of the law, it is the court system that most of all also advances the process of disorganisation. This sounds terribly abstract, but in practice anyone who has attempted to organise people against some injustice, big or small, will know how deadly the legal process can be. Long before the powerful attempt repression, the process itself attempts exhaustion. The court system is an alienating, frustrating, confusing and extremely disempowering experience for the vast majority of people (and not just in India, of course). This is not only true in cases of social struggle. It is true of individual cases as well, and perhaps the reason that lawyers are so widely hated. The only social sections for whom the legal system do not have this effect are the truly powerful, who use it to sort out their differences in a manner that avoids having to murder each other (once again, an organising function). For anyone who is a target of oppression, going to court means giving up the few advantages the oppressed often have (the power of numbers, the moral sense of justice) and instead individualising, atomising and often destroying one’s own strength. Indeed, in cases of conscious organised struggle, one of the key strategic decisions to be made is often how to ensure that any engagement with the courts does not have this effect.

If we view the court system in this manner, I think the moral debate around representation becomes clearer. The cab rank rule that both Bhatia and Shivshankar discuss takes on a different meaning. In a sense, both of them are right. Shivshankar is right that the rule was introduced to protect litigants, and in that sense it represents one facet of the court system’s need to be fair and to be seen to be fair. But Bhatia is even more right that in practice this rule has become a protection for lawyers. His point about the fact that the cab rank rule would require a UK NHS-style, publicly funded “National Legal Service” is very valid. Indeed, if the cab rank rule is articulated without simultaneously articulating this need, it becomes at best a pious incantation with little actual meaning – and at worst, as in this case, it becomes a fig leaf for the moral choices of individual lawyers, a shield for the very arbitrariness and unfairness it was meant to prevent. Once again, a victory for struggles against oppression is being sought to be turned into an instrument to prevent future victories.

The question then arises as to what moral implications individual lawyers’ choices have. I find it difficult to credit Shivshankar’s argument – that refusing immoral clients funnels them towards immoral lawyers – with much validity. This will happen in any case, simply because an ‘immoral’ client who seeks to bend or break the rules of justice will simply change their lawyer if their ‘moral’ lawyer refuses to do so. To me, if we regard these moral choices and the court system as being embedded in the larger struggles of society (rather than as floating above these struggles), the moral role of lawyers emerges automatically. The MJ Akbar case is a classic, stark instance of a powerful man using a powerful law firm to isolate, repress and exhaust his accusers. It does not matter if we assume that Akbar is guilty or not. It does not even matter if he wins. What matters is the way he has chosen to respond – that is, to choose not only to use his already considerable power to respond in public, but to deploy that power even further by filing a massive criminal defamation suit through a high powered law firm. This has the effect of repressing and disorganising the MeToo movement, creating a climate of fear and forcing his accusers into individual, expensive and time-consuming defenses, whatever Akbar’s guilt. If this is the case, no lawyer interested in being part of a just society should be part of that process. In this sense also there is clearly no parallel between this situation and the Kasab case.

In this sense, I ultimately agree with Bhatia. Lawyers’ choices, like all other choices, have moral implications. The morality of those choices has to be seen against the larger backdrop not only of the individual morality of clients, but against the morality of the legal process and what it means for social change. An integral part of the legal process’ disorganising effect is its constant attempt to force us to see social and political structures as if they were individual choices, to compel us to see the unequal as equal and the collective as atoms. Perhaps the more fundamental moral choice that all of us, lawyers or non-lawyers, have to make is whether we accept that attempt at disorganisation, and if we do not, to make our decisions about our work accordingly.

[1] The distinction between Marxist and other approaches here would be around the analytical primacy one accords to the production process, and hence to class, in understanding these structures, but that distinction is not material to our argument here.

[2] Here as well, I am not getting into the question of the specific struggles, or their class character, that led to these changes. One might note that this approach overall differs from the strand of left orthodoxy that dismisses these tenets as fictional deceits that only defend the interests of the bourgeoisie. That larger debate is outside our scope here, of course, but it draws on the heterodox Marxist theories of the capitalist state that attempted to develop the concept of hegemony.

“A petty autocracy”: The Supreme Court’s evolving jurisprudence of the sealed cover

The present Chief Justice of India likes sealed covers. In the ongoing National Register of Citizens Case, he has – on multiple occasions – asked the state coordinator of the NRC to submit the details of his work to the Court in a “sealed cover” (including, on one occasion, refusing to share the contents of the “sealed cover” with the Attorney-General for India).  In the Rafale Case, he asked the Government to submit pricing details about its purchase of the Rafale aircraft in a “sealed cover”. And in the case involving corruption allegations at the CBI, he directed that the CVC’s report about the CBI Director Alok Varma be given to the latter in a “sealed cover”.

These constant references to “sealed covers” may sound like the stuff of thrilling detective novels, but they also happen to be deeply and profoundly anti-democratic. Let us start with the foundational principle: in India, we are committed to the value of open justice. The Courts are public forums, their work characterised by transparency and openness to public scrutiny. Judgments – and the reasons underlying them – must ordinarily be public. The Indian Supreme Court is not the Court of the Star Chamber, with its opaque and secretive processes. In a democracy, it is of fundamental importance that justice be done in full public view.

Like any principle, the principle of open justice, of course, has its exceptions. The concept of an “in-camera trial” is well-known: there are a handful of cases whose sensitive nature requires that they be closed off to the public, especially when matters of personal privacy are involved. This, however, is meant to be a situation of the last resort, taken only after hearing arguments on the issue, formally enjoined by the judge, and not a decision that she ought to take lightly.

Next, consider the following situation: an election is challenged on the ground of procedural irregularities. The results of the election are due to be announced before the Court can adequately hear and decide the case. To prevent a fait accompli, the Court asks the election authorities to refrain from declaring the results, and – instead – hand them over to the Court in a “sealed cover”, pending the adjudication of the dispute. Here, the issue is purely procedural: the material submitted to the Court has nothing to do with the Court’s final decision, and it therefore raises no concerns of open justice.

There is a third category of cases: those involving State secrets. Consider, the famous example provided by the Supreme Court of the United States in The Pentagon Papers Case: that of troop movements in wartime. Nobody would suggest that details of this kind ought to be made public. But then again, nobody would suggest that this is a matter that is justiciable in the first place: issues involving State secrets fall within the domain of Executive prerogative, a domain where courts cannot tread. Of course, there can be – and often is – a dispute over whether something qualifies as a State secret or not – that, indeed, was the whole dispute in the Pentagon Papers Case, and that is certainly a matter for the courts to decide. However, once the courts have decided (with due deference to the Executive), then there can be no halfway house: if the question involves a State secret, then it is the absolute prerogative of the Executive to deal with the information as it sees fit. If it does not, then the traditional principles of open justice and open democracy apply: if it can be shared with the Court, then it must be shared with the public.

The problem with the Chief Justice’s evolving jurisprudence of the sealed cover is that in its arbitrary and ad-hoc character, it has become a matter of personal fiat, rather than a careful consideration of balancing the core principles of open justice with the narrow exceptions that may occasionally apply. Consider, for instance, the Rafale issue, where the challenge is to the government’s decision-making process as part of public procurement in a defence deal. Now, the government argues that the price at which it obtained the fighter jets cannot be revealed, as that would compromise the deal itself: in short, the determination of pricing is a core executive function when it is striking defence deals, and not something for the Court to go into. If you agree with the government’s argument, then there ends the matter: the question of pricing has to be excluded from the proceedings altogether. If you don’t agree with the government’s argument – if you believe that the corruption allegation cannot be decided without looking into the question of pricing – then that logic has to be carried through to its conclusion: the pricing details, along with the rest of the decision-making process, has to be subjected to judicial review, and ipso facto be public. What the Chief Justice has done, instead, is to take the pricing details in a “sealed cover”, with some stray observations about how, at this time, he does not consider it relevant to the case. Fair enough – however, why ask for the pricing to be made available only to him and his brother judges, if he does not consider it relevant? And what if he changes his mind later on? Will we get an affirmative judicial finding on whether or not there was corruption in the Rafale deal – a crucial public issue – on the basis of three judges’ reading of what is contained in a “sealed envelop”?

While the fate of the “sealed envelop” in the Rafale case lays bear some of the contradictions of the Chief Justice’s approach, in the NRC case, that approach has far more sinister results. Unlike Rafale, NRC is about core fundamental rights, including the right of citizenship. As I have argued before, the Chief Justice with his “sealed covers” (and “confidential reports”) has essentially set up a regime of secret justice, where individuals are faced with life-changing (and life-destroying) decisions about their rights, without any chance to challenge or interrogate them.

What explains this? The Chief Justice’s thought process – I suggest – was laid bare yesterday, in a throwaway remark that he made during the proceedings concerning the third of my examples – the CBI case. The Chief Justice’s rationale for handing over the CVC Report to Alok Verma in a “sealed cover” was that “public confidence in the CBI” must be maintained. Now consider the facts: the two topmost officials of the CBI accuse each other of graft, the government (long-accused of treating the CBI like a “caged parrot) intervenes in a manner that is questioned by many, and the CVC is brought in to investigate the CBI Chief. All this, we are expected to believe, would not affect “public confidence” in the institution, but making the CVC Report public would somehow achieve that.

But this is nothing better than a complete infantilisation of the public: the Chief Justice is essentially telling us, in his best Colonel Jessup impression, “You want the truth? You can’t handle the truth.” The truth will stay between the high officials involved, and then a second set of high officials – the judges – will render judgment on the basis of that cloistered truth – all of which is in keeping with the sanctity of the CBI. The only threat, apparently, is of the public getting to know what the CVC has to say about the CBI Chief. This is an approach that treats people as passive subjects of justice instead of active citizens, and makes of judges that “bevy of Platonic guardians” that Judge Learned Hand was so terrified of: “sit back, relax, and let the grown-ups handle it.

A judicial regime in which the first recourse is to the “sealed cover” – thus setting up a secret dialogue between the Court and the State, to the exclusion of the citizen – has no place in a democratic set-up. Rather, it resembles a petty autocracy, where the citizens are viewed as irritants, who have no stake in the process of justice, and just need to let the guardians “get on with it.” It was a regime that our constitutional framers explicitly rejected when they made India the first country in the world to initiate universal adult franchise in a single stroke, notwithstanding the poverty and the illiteracy. In 1947, there were those who resisted this, echoing the colonial logic that Indian could not be trusted to think and decide for themselves, and would have to be led and guided until they became mature enough to do so. The constitutional framers, however, took a leap of faith, and chose the path of democracy and openness. The “jurisprudence of the sealed cover” makes a mockery of that faith.

Guest Post: Article 22(3): A Constitutional Paradox

(This is a guest post by Abhinav Sekhri. It originally appeared on the NLSIR Blog and The Proof of Guilt, and is cross-posted here with the permission of the author).

Of late, the transformative nature and potential of the Indian Constitution has been placed under the spotlight thanks to attention from both scholars and courts. The contours of this argument are contested, but according to most versions, the Constitution is an instrument designed to realise an India where the ideals of liberty, equality, and fraternity are fully expressed and protected against arbitrary deprivation. Amidst the focus on India’s transformative Constitution, this post takes a look at Article 22(3). The clause provides that if persons are arrested and detained under preventive detention laws, or are enemy aliens, then the basic protections against arrest and detention provided by Article 22(1) and (2) do not apply. Here, I attack the resulting deprivation of the right to counsel brought about by Article 22(3).

Content and Origins

Article 22 can be understood as consisting of two parts – clauses (1) and (2), and clauses (3) to (7). The first part tells us that all persons are guaranteed certain rights upon arrest: the right to be immediately informed of grounds for arrest, to be produced before a magistrate within 24 hours if detained upon arrest, and to consult and be defended by a counsel of choice. The second part begins with clause (3) telling us that the first part isn’t actually applicable to all persons. Clauses (4) to (7) then detail minimum criteria that any preventive detention law must satisfy: it must inform persons of grounds for detention, enable them to make representations against detention, create Advisory Boards which must approve all detentions longer than 3 months, and fix a maximum period of possible detention.

I’ve discussed the origins of Article 22 at length elsewhere. It suffices here to state that the first part of Article 22 was intended to salvage what the Constitution lost by deletion of “due process” from Article 21. The second part was guided by the same intentions – since the Constituent Assembly had already decided to grant powers to enact preventive detention laws to both the Union and states, the excision of “due process” theoretically meant that there were no limits to what kind of laws are passed. Clauses (3) to (7) were meant to soften the blow and ensure that state interests are protected by laws that facilitate quick arrest and detention, without completely trouncing individual liberties.

In this attempt to strike a balance, the right to legal assistance was sacrificed entirely. I say entirely, for while the other rights provided in clauses (1) and (2) are still present in a watered-down form in clauses (4) to (7), the right to legal assistance fails to find any mention. Why? The consistent answer one gets upon consulting the Constituent Assembly Debates is an argument of efficiency. The Assembly feared that letting lawyers into the preventive detention system would invite delays of the kind that the ordinary criminal justice system suffered from, undermining the very swiftness that made preventive detention attractive in the first place.

Legislative Adaptation and Judicial Treatment

India’s Provisional Parliament passed the Preventive Detention Act, 1950 [PDA] less than a month after the Constitution came into force. Since this body comprised almost the entirety of the Constituent Assembly, one imagines that the statute closely followed the Assembly’s vision of preventive detention. What kind of proceedings did the PDA envisage? Section 7 obligated communication of grounds without fixing a time limit, and permitted non-disclosure wherever  necessary in public interest. Section 10 laid out the procedure of hearings before Advisory Boards and specifically stated that detenus were not entitled to either personal appearance or appearance through counsel. Section 14 went so far as to render grounds of detention entirely confidential, denying even constitutional courts the right to know why a person had been detained.

This, then, is the ideal vision of preventive detention: proceedings that involved acting first and explaining later, with explanations hardly beyond the bare minimum, with paper pushing and no oral hearings. From A.K. Gopalan onwards, this ideal vision was gradually demolished by the Supreme Court. Judicial engagement with preventive detention followed an accepted script: while the ultimate legality of preventive detention measures was beyond question, the harshness of the regime was not. Towards this, several judicially crafted innovations were made to enhance the fairness component, all the while operating within the bounds of Article 22.

The Emergency of 1975 – 1977 saw targeted amendments to undermine these innovations and curtail judicial review. This curtailment, though initially resisted by High Courts, was ultimately accepted by the Supreme Court itself in A.D.M. Jabalpur. As the popular narrative suggests, that Court began to restore the content of fundamental rights and its own institutional legitimacy, once the Emergency ended. This led to the opinions in Maneka Gandhi which expanded the scope of Article 21. In a flurry of subsequent decisions, the Court recognised that this expanded Article 21 contained an unenumerated right to counsel, broader than the Article 22(1) guarantee. While Article 22(1) granted a right to counsel of choice, Article 21 carried a right to counsel, thus prohibiting deprivation of life and personal liberty made in absence of legal assistance.

This belated recognition of the importance of legal assistance and its fundamental link to the right to personal liberty was also soon felt in the sphere of preventive detention. Different benches of the Court in GopalanachariKavita, and Nand Lal Bajaj – all consisting at least of either Justices Krishna Iyer, Sen, or Islam – held that the denial of legal assistance in preventive detention was not absolute. Relying on Article 21, these decisions emphasised the importance of counsel, especially where persons were detained without trial. They held that a detenu still had a right to request for legal assistance, which then had to be adequately considered by authorities. This consideration was ultimately subject to judicial review, providing some measure of oversight. One of these cases, Nand Lal Bajaj, found it “incomprehensible” that the regular criminal justice system granted legal assistance but preventive detention didn’t. But since it was not asked to decide this issue, these remarks remained obiter dicta .

A.K. Roy and the Current Legal Position

Maneka Gandhi, an expanded Article 21, and a fundamental right to counsel: this was the context in which the Supreme Court heard a batch of petitions challenging the National Security Act, 1980 [NSA]. The Constitution Bench assembled for this purpose delivered its decision late in December 1981, reported as A.K. Roy v. Union of India, and it almost entirely upheld the validity of the NSA. The controlling opinion was authored by Chandrachud CJ to which three judges signed on, while Gupta J and Tulzapurkar J dissented in part. Analysing the entire decision is beyond the scope of this post. Rather, the focus here is on how the Court unanimously saved Section 11(4) of the NSA, the provision which disentitled detenus from legal representation before Advisory Boards.

What did the Court do? It relied upon Article 22(3)(b), and held that the right under Article 22(1) to consult and be defended by counsel of choice is inapplicable in the context of preventive detention. The Court acknowledged that preventive detention laws were not only subject to Article 22, but were also open to scrutiny under Articles 14, 19, and 21. Did depriving persons of their liberty without legal assistance satisfy this scrutiny?

The Court rejected the go-around offered by petitioners: since Article 22(3)(b) only excluded Articles 22(1) and (2), the right to counsel contained in Article 21 was still applicable. The controlling opinion labelled it “impossible” to find that what one part of the Constitution had denied, another provided. It then offered a positive answer as well, holding that the original text of the Constitution was per se “just, fair, and reasonable” and so could not fall foul of Articles 19 or 21. Simply put: since the original constitutional text said detenus don’t get lawyers, there was no question about laws implementing this mandate being unconstitutional for violating rights contained in other provisions of the Constitution.

Before parting, the Court tried to mollify the harshness of this conclusion which it had arrived at “regretfully”. It held that where the government engaged counsel, a detenu must also be afforded a similar chance, and further, that nothing denied detenus the ability to ask for assistance from a “friend” in proceedings before the Advisory Board.

 A Veneer of Legality

Preventive detention laws have never been tested by a Constitution Bench since A.K. Roy, and that decision still remains the final word on the issues it considered. In this section, I demonstrate that the controlling opinion’s handling of the issue of denying legal assistance to detenus was flawed and promoted a constitutional vision irreconcilable with the idea of a transformative Constitution.

The primary basis for upholding Section 11(4) of the NSA in A.K. Roy was that Article 22(3)(b) permitted deprivations of the right to counsel and since it formed part of the original Constitution, it is bizarre to say that the framers themselves had inserted unconstitutionally unreasonable clauses. Though the opinion did not cite Golaknath, this distinction between the original text and amendments had been propounded since then: while the Court happily reviewed amendments, it kept the original text in a hermetically sealed box. This distinction was also accepted by the Court in Keshavananda Bharati as a limit to the basic structure doctrine as well.

But this privileging of the original test does not make sense. Gautam Bhatia exposed the logical fallacies in this view some time ago, arguments that I adopt and expand here. As he argued, if we think of the basic structure test as promoting faithfulness to values, then how do we justify this separate treatment for the original text? Moreover, the idea that the original text is uniquely faithful to “we, the people” is also flawed: the Constituent Assembly was barely representative of “the people”, nor was it subjected to a ratification process. Also, nothing in the constitutional text itself supports this separate treatment of the original text and subsequent amendments to it.

The flaw with this approach gets magnified in A.K. Roy because of the context: Articles 21 and 22. The Court in Maneka Gandhi had gone so far as to rewrite the original Constitution by re-inserting “due process” into Article 21. Whatever significance this had for the rest of Indian jurisprudence, the effect of this shift was tectonic in context of Article 22. After all, Article 22 was birthed because the Constituent Assembly had removed the “due process” phrase. Once due process came back into Article 21, it unmoored Article 22 from its very foundations, and directly questioned the adequacy and reasonableness of the limited guarantees that Article 22 provided.

Accepting that an expanded Article 21 contests the earlier minimums set by Article 22 is the only sensible way that the two can be read together, rather than privileging the original text. This was the direction the Court seemed to be heading in as well. It quickly resolved one issue: the minimum set by Article 22(1) in terms of the right to counsel was insufficient, and was thus expanded by Article 21. This was easy, since Article 22(1) could be argued to be silent about legal aid and not explicitly against it. Article 22(3) was much harder because it expressly excluded certain rights. Fidelity to a basic structure doctrine that focuses on values would then evaluate whether this exclusion was contrary to these values, and give us an answer.

Rather than resolve this crucial issue of harmonising an expanded Article 21 and Article 22(3), A.K. Roy simply told us that the latter was correct because it was there for longer. And it did so by trying to minimise the significance of this conflict. While the Court privileged the original text, the controlling opinion carries no mention of the peculiar history behind Articles 21 and 22. Further, it either distinguished the recent decisions on the expansion of Article 21 and a right to counsel, or amazingly did not mention them at all where they pertained to the preventive detention regime.

Conclusion

A.K. Roy subscribes to a view that the Constitution offers forever static minimum protections to safeguard life and liberty. Currently, the Supreme Court finally acknowledges that constitutional protections are meaningless in abstract, and must be tailored to the unique harms that different generations face. The harm from preventive detention is very different today from what it was in 1950. It is far from an exotic tool to deal with threats to public order, and instead is used to arrest persons on suspicions of copyright violations, video piracy, and cow slaughter. Even more importantly, the very basis for the original minimum constitutional rights secured by Article 22 has ceased to exist ever since the Court re-inserted due process into the Constitution, where it has flourished since. Thus, if the entire milieu has changed so dramatically, is it sufficient to tell us that persons, who can be arrested and jailed without knowing why and kept in jail for months on end, have no right to counsel simply because the Constitution said so from the start? I strongly disagree.

*This post is focused on preventive detention, largely because there has been no instance of applying Article 22(3)(a) that I could trace. Nevertheless, the arguments here, made in the preventive detention context, would also apply to Article 22(3)(a). 

Justice Kavanaugh and the Collegium: reflections on the increasing significance of judicial appointments

Justice Bret Kavanaugh’s confirmation hearings have certainly given us food for thought. The issues raised by the hearings have received some expert commentary, including Jack Balkin’s insightful post on ‘constitutional rot’ (here) and the series of posts on the Law and Political Economy blog (here). While certain aspects of the confirmation hearings were unique to the American political and constitutional experience, India too has a well-documented struggle with judicial appointments and recently underwent its own moment of introspection on a key judicial figure with the retirement of former Chief Justice Dipak Misra.

In this post I ask the question, why are the stakes for a seat on the constitutional court so high? The way constitutional courts are designed certainly provides an immediate set of answers. There are only nine judges on the United States supreme court and they enjoy lifetime appointments, allowing a single judge to impact the outcome of cases for several decades. However, even in India where the supreme court consists of thirty-one judges having limited terms, the court and government have struggled to see eye-to-eye on judicial appointments. The court has repeatedly struck down attempts to reform the ‘collegium’ system, where judges themselves decide who should be appointed to the supreme court. In return, the government has refused to confirm the appointment of certain appointments made by the ‘collegium’ to the supreme court. Just this week, the Chief Justice took up the issue of the government ‘selectively’ confirming judicial appointments (here). In this post, I argue that it is the conduct and role of the court that has raised the stakes of judicial appointments to boiling point.

The conduct of the court, intended to curtail governmental overreach, has come to include detailed matters of public policy. Further, the court has become a centre of political power, advancing political views on deeply divisive issues. This piece does not seek to make an argument against judicial review, nor does it advocate, in the words of Mark Tushnet, taking the constitution away from the courts. However, in a month of historic outcomes for the Indian supreme court, it advocates some circumspect on the high stature of the court.

The role of judicial review

Part III (Fundamental Rights) of the Indian constitution explicitly recognises that individuals can approach the court, and the court can strike down government action that is incompatible with the fundamental rights. By allowing a law to be struck down on the grounds that it is incompatible with a fundamental right, the constitution recognises that an individual’s political interest cannot be subsumed by the general interest. A person’s fundamental rights must therefore be given appropriate weight when measured against the interests of the community. Famously, in the words of Dworkin, rights act as “trumps” in certain situations. The powers of the court are not strictly limited to invalidating government action, the court can, for example, direct the government to take certain actions to ensure fundamental rights are upheld (by a writ of mandamus). However, in practice, the actions of the court far exceed this.

Take the recent example of the court’s involvement in the Coordinator of National Registration (NRC) in Assam. Article 11 of the constitution states that parliament will have the power to create laws for the “acquisition and termination of citizenship and all other matters relating to citizenship.” However, the court not only ‘supervised’ the procedure by which thousands of individuals were added and omitted to the list of potential citizens, but it also determined which documents could be used to make a claim to citizenship. After the draft NRC was published, the court required re-verification of ten percent of the names would be required, so that the court could be satisfied that the list was accurate. By dictating what documents could be used by an individual to prove they were a citizen (the evidentiary standard for citizenship), the court effectively determined when an individual is a citizen.

Even more worrying was that the court acted to the exclusion of other branches of the government. For example, the court noted,

 Having regard to the nature of the work that is involved in the process of upgrading the NRC, we direct the State Coordinator to submit a report to the Court. […] The above information will be laid before the Court by the State Coordinator without any consultation with any Authority whatsoever and without reverting to the State Government or any Authority in the Union Government.

As argued by the Attorney General, this exclusion of the governments hampers the task of the officers who must deal with the facts on the ground. The court also passed orders on when the draft had to be published, if the NRC officers were permitted to speak to the press, and whether they needed police protection. The Court’s excruciatingly detailed supervision was showcased when the state government argued that more time was required to complete the NRC because of local panchayat elections. The court noted,

we, however, permit the State Government to take the services of one Additional Deputy Commissioner in each district who may be currently engaged in the NRC work and deploy the said officer in each district for the work connected with the Panchayat Elections.

The court’s conduct vis-à-vis the NRC is not a case of judicial review where an individual’s rights are aggrieved by state action. Determining how and when officers should be stationed is a distributive choice on how the nation’s resources are utilised. In close to a decade of hearing the case, the court has never once referred to either the fundamental rights at stake or even the government action that is the subject of judicial review. When the attorney general argued that certain aspects of the case were best left to the executive, the court cited executive inaction as a justification for court supervision. The NRC is not an isolated case, the court has laid down and monitored the India’s forest policy for over two decades in the (still ongoing) writ petition Godavarman v Union of India. While the pitfalls associated with the court assuming such a role are not the subject of this piece, it is evident that the conduct of the court is no longer limited to judicial review. It can compel even a government that is not seeking to undermine constitutional provisions to expend resources on certain goals that the court designates as important. The court is not merely a ‘check on governmental power’, but itself a powerful centre for policy on how the country should be run.

The court as a centre of politics  

The court has also used its power to advanced political ideas on deeply divisive issues. The most recent example of this is the court’s decision in the Sabarimala case, where the court struck down the restriction on menstruating women entering the Sabarimala temple. To understand the political significance of the judgement, it is necessary to appreciate the centrality of secularism to the Indian constitution, so a quick recap is called for.

Article 25(1) reads,

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Article 26 goes on to note that,

every religious denomination shall have the right […] to manage its own affairs in matters of religion 

This inherent tension in the constitution highlights both the disagreement that existed over the extent of State interference in religion and the requirement for continuity/ communal harmony, as well as the sharp contradictions that existed between the aspirational goals of the constitution and surrounding society. As Gary Jacobsohn notes, “So deep was religion’s penetration into Indian life, and so historically entwined was it in the configuration of a social structure that was by any reasonable standard, grossly unjust, that […] State intervention in the spiritual domain could not be constitutionally foreclosed.” Yet it is precisely this deep penetration of religion that leads to an inherent tension between the aspirational social-reform goals of the constitution and the requirement for communal harmony. The drafters of the constitution, operating in the shadow of partition, were acutely aware of the essential role of religion in social life. Thus, while social reform through State action was necessary, the acknowledgement of religious autonomy and permitting “culturally inflected interests” to be represented were essential to the maintenance of democracy in India.  Thus, Indian secularism required a balance between socio-economic reform of religion and tolerance of the deeply engrained and pluralistic practices existing across the country.

This is precisely the tension that the Sabarimala judgement brought to the forefront, down to the opinions of the judges. When Justice Malhotra argues for the validity of the ban on women entering the temple, she does so on grounds of respect for religious pluralism, while Justice Chandrachud gives voice to the argument that State intervention in certain situations is warranted. Of course, the rub lies in when such intervention is warranted, and who can ask for such intervention.

The religious sphere is certainly open to interference by the constitutional promise of social reform, but as Jacobsohn notes, “the legitimacy of this undertaking is at least partially dependent on preserving political space for religious identity.” By taking up the case, the court reduced this political space to the respondent’s lawyers in the courtroom. By striking down the ban, the court has struck down the practice of a religious group on the grounds of social reform at the behest of individuals who are not members of that religious group. This certainly alters the subtle constitutional balance between the social-reform goals of the constitution and the promise of communal harmony. As we have seen, the place of religion in Indian society is deeply contested. Yet the court’s seemingly insulated position often obscures the fact that the court is a vigorous and powerful participant in this contestation.

Conclusion

Given everything set out above, it is clear why the political class might seek to entrench allies in the judiciary, and consequently why, the judicial appointment process becomes contentious. Unlike in the United States, where judges are appointed by the executive branch and confirmed by the legislature, in India we have the collegium system, whereby senior judges appoint junior members of the court. While perhaps less partisan that the American court, the Indian court is no less political. As Anuj Bhuwania notes, the court’s PIL jurisdiction grants “blanket powers to judges to act as per their ideological beliefs in order to help the poor and promote distributive justice.” One would be hard pressed to find a politician who argue that his role differed from this role of the courts, except for the politician, blanket powers remain a forlorn dream.

This post sought to highlight why a place on the court is important. It is important because the court has endowed itself with vast powers and these powers are used to implement the policy and to drive the politics of the court.

The role of the court in its present iteration raises the age-old problem of political legitimacy. The court is an unelected body. As Jeremy Waldron notes, it is far easier to explain to someone who holds a contrary political opinion that, “Everyone’s votes were counted, and your side got fewer votes” than it is to say, your principled argument lost 4-1 on the constitutional bench. Can one approach the thousands of protestors at Sabarimala with the majority opinion in hand and expect immediate acceptance? What we are truly concerned about is the court exercising its expansive powers without the legitimate authority to do so. The protests against Justice Kavanaugh no doubt in part stemmed from the fact that this one man would have the power to decide whether millions of women could abort unwanted pregnancies or not. To ask if such a system is desirable is to ask where the legitimate authority to govern us comes from. Is it the constitution, the democratic process, a learned judge, or some combination of them all? Until then, we should prepare ourselves for the next round of high stakes judge selection.