Kashmir: Fundamental Rights and Sealed Covers

In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.

In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.” 

While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover. 

At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless. 

Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency. 

It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.

Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.   

Guest Post: “For Your Eyes Only”: On the Supreme Court’s Sealed Cover Jurisprudence

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post authored by Digvijay S. Chaudhary and Afzal Mohammad.]


There has been a lot of talk about the Supreme Court’s sealed cover exercise. The issue has been flagged only recently but the exercise has existed since the inception of the court. The following post follows from research that the authors conducted where they analysed this exercise from the inception of the Supreme Court until early 2019. The focus of the research was only the Supreme Court, but there exist thousands of cases in various High Courts regarding the same. The following post will trace the history and purpose of the exercise and then detail how it has evolved over the years and finally examine its legal backing.

Introduction

It is important, first, to distinguish the various ways in which the Supreme Court has resorted to the sealed cover exercise. It is not always the case that whenever a sealed cover is used, the court does not reveal the contents of the sealed cover to the other party. The court has also (barring a couple of instances which shall be dealt later) never justified its stance of using the sealed cover. In a majority of the cases, it has been mentioned on record that a document was submitted to the court in a sealed cover but after this mere mention, there isn’t any record of such a document; whether it was relied on by the court or the impact those documents had on the judgment—no such information exists. It has also been observed that many times that the counsel themselves urge submitting documents in a sealed cover.

A distinction must also be drawn between the act of claiming privilege over documents and the sealed cover exercise we are dealing with. Under section 123 of the Indian Evidence Act, certain documents are not permitted to be presented in the court; the content of such documents is privileged and therefore, they are barred from being put on the record. Sometimes such documents lie in the hands of investigative agencies and if their content is disputed, they are called for by the court in a sealed cover. Only when the claim of privilege is not allowed, are these documents are made public. For the purposes of our discussion, such sealed cover documents shall not be included. It must also be borne in mind that all the exchanges that happen inside a courtroom are not part of the official record and hence details of the document in question cannot always be gathered by reading the judgment. As stated above, certain documents are ordered by the court in a sealed cover and their whereabouts and usage are not recorded by the judges in their judgment.

It can be inferred that over the years, the court’s approach has been four-fold when asking for documents in a sealed cover: Protection (sealing the evidence so as to avoid hampering), confidential (where the court acknowledges the confidentiality of the document and provides the document only to the counsel of both the parties and doesn’t dictate the contents in an open court), secret/arbitrary (where only the presiding judge opens and sees the sealed cover) and unknown (where it’s only mentioned that a certain document was submitted or asked to be submitted in a sealed cover, but nothing more is mentioned of such a document).

Origin

In the early years of the Supreme Court, the court used to resort to the sealed cover for protection of evidence as, “the absence of sealing naturally gives rise to the argument that the recording medium might have been tampered with.” Other purposes that we found the court resorting to the sealed cover were in cases concerning bids and tenders. That changed in 1972, when in the case of Unichem Laboratories v. Workmen, the statements of a private company were presented to the court in a sealed cover; no objections are present on record regarding their presentation or if the court itself asked for them in a sealed cover, but what is important is the court’s furnishing of reasons as to why the documents could not be made public: the court stated that these statements could have been extracted in the judgment but due to the fact that the company was a private company and the documents were presented in a sealed cover, therefore, they could not be made public. This deserves attention because the court reasons that the documents could not be made public as they were presented in a sealed cover—the sealed cover, here, acts as an authority which the court is supposed to rely on. Such a casual stance by the court, in this case, indicates that there might have been previous instances too where sealed cover was resorted to by the counsel/judges but written record of the same does not exist, as such instances have not found place in the judgments.

The pre–2000 era witnessed fewer variations in the documents submitted in a sealed cover. In this phase, the contents of the sealed cover were often revealed in an open court. In TADA cases too, evidence was frequently presented to the court in a sealed cover.

Wings of Fire

Post–2000, the sealed cover widened its ambit to investigation reports, reports in a court-ordered enquiry, report of the governor, status reports and steps taken in an investigation. Submission of status reports rose exponentially in the last four years (since 2016), as this term doesn’t even find a mention prior to this period. CVC reports, SIT reports, case diary, report of the inquiry conducted by the CBI, accounts, and list of assets of promoters, all came within the ambit of the sealed cover during this phase.

This exercise originates not only from the court’s end but also from the counsel, who themselves urge submitting documents in a sealed cover and which the court usually accepts. But in one such instance, in the case of Subramaniam Swamy v. Arun Shourie, the respondent prayed that, in view of the sensitive nature of the facts, he would choose to refrain from setting out those facts in the affidavit but would prefer to put them in the form of a signed statement in a sealed cover for the perusal of the Court, and which may be treated as an integral part of the counter affidavit. The Court, however, rejected his prayer and observed that the procedure suggested by the respondent was not acceptable, and was inconsistent with the recognized form of the pleadings. The respondent was granted liberty to withdraw the sealed cover from the Court. He was given an opportunity to file an additional affidavit. There are no reasons recorded by the learned judge as to why the procedure was not an acceptable procedure or any other details regarding such submission by the counsel. Nonetheless, this case is the only one the researchers could find in which the court has rejected the submissions in a sealed cover.

In another case, the High Court of Kerala directed the members of the CBI’s investigating team stating that, should they feel any interference with their freedom either from CBI or from elsewhere, such member shall be free to address this Court through the Registrar-General in a sealed cover. When this matter was brought to the Supreme Court, the court recognised the faith that the High Court had put in the members and allowed them to address the court through the Registrar in a sealed cover, but it did not comment on the validation of this exercise by the court.

The most extensive use of the sealed cover, however, has been observed in the case of Ratan N. Tata v. Union of India. There was a long list comprising a copy of a complaint, mentioned in the counter affidavit in a sealed cover. This sealed cover was directed to be kept in lock and key and be produced before the court on the next hearing. On the next hearing, there is no mention of this sealed cover. However, the ASG submitted another sealed cover which contained investigation reports of the inter-ministerial committee. This sealed cover was opened in court, resealed by the court master and returned to the counsel. Then, sealed envelopes containing the transcripts of all the tapes were presented to the court. In another hearing, the outcome of the scrutiny of alleged tapes was handed to the court in a sealed cover. The court opened the same and perused them. Finally, the report filed by the CBI was presented in a sealed cover to which the court ordered the registry to keep it in the same fashion and not to open it without the leave of the court. There are many similar examples.

There also have been instances where the court has issued reasons for resorting to the sealed cover. In Board of Control for Cricket in India v. Cricket Assn. Of Bihar, the Supreme Court accepted the statement of Justice Mudgal committee as to why the report was being submitted in a sealed cover: namely, that they were only allegations and were not established and, therefore, the report was being submitted in sealed cover so as not to sully the reputation of any innocent person. The court went through the report and said that the allegations in the report submitted in sealed cover required verification and investigation, and that the allegations were relevant to the subject-matter of the PIL. In SEBI v. Sahara India Real Estate Corpn., the Supreme Court stated that the press clippings be taken on record but should be kept in a sealed cover to maintain confidentiality in regard to the proposed transactions. In Sunil Bharti Mittal v. CBI, the court stated that since the matter was being monitored by this Court, progress reports of investigation were filed from time to time in sealed envelopes. And after perusing certain documents in a sealed cover, the court directed CBI to take action in accordance with the views expressed by it.

Sometimes, the document in the sealed cover is opened by the court, resealed and given to the registry to be kept in a sealed cover until further notice. Any future references/information about these reports/documentary are missing. Despite such a large extent of this exercise, the court has cautioned itself of this exercise only once. In the Alok Verma case the court stated that “we also make it clear that the present order requiring furnishing the report of the CVC in sealed cover to the learned counsel for the petitioner is being made in the peculiar facts of the case and as a one time measure. And, the above course of action has been considered necessary by the Court keeping in mind the need to preserve and maintain the sanctity of the institution of the CBI and public confidence in the said institution.

Supreme Court’s Backing For The Sealed Cover

The Supreme Court derives power for the sealed cover exercise from the Supreme Court rules. Rule 14 Chapter XX of the Supreme Court Rules provides:

“Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of a confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court.”

As per Article 145, the Supreme Court rules do not exist independently, and are subject to other laws in force. Section 327 of CrPC also provides for withholding publication of certain documents. However, section 327 lists the cases in which publication can be withheld. First, it bars access to the court in circumstances the presiding judge thinks fit. Second, it provides for in-camera trial for offences under section 376. Third, it prohibits publication of any matter in relation to in-camera proceedings only. This is logical as the concept of in-camera trials is created as an exception to the open justice principle and therefore, publication is restricted only in such circumstances.

The above rule, on the other hand, restricts publication whenever the court deems fit. This position stands in direct contrast to section 327. The said rule also stands in direct contrast to section 123 of the Indian Evidence Act. Section 123 has to be read with section 162 which provides for the act of claiming privilege over a confidential document by the state. Whenever privilege is claimed on any document, such documents are, until the question of privilege is decided, kept in a sealed cover. However, if privilege is not claimed on evidence under section 123, then there exists no other backing in law to provide for documents in a sealed cover. In addition to section 327 of CrPC, the rule now acts as an exception to this section too.

Conclusion

The court’s approach over the years has been patronizing; from protection, confidentiality, and secrecy, the sealed cover has touched all these spheres. Infantilisation through this exercise has been stated previously, but we think that this has much to do with convenience as well. The exponential rise (around 50% of all cases involving a sealed cover have been in the past 10 years) in the sealed cover exercise by the court in recent years is indicative of the fact that the apex court is slowly developing a constitutionalism of convenience.

In a history spanning more than 68 years and more than 402 cases, the Supreme Court has furnished reasoning in only the above cases. This speaks a lot of the neglected side of this exercise and how liberally it is used without giving any regard to reasons. It is important to reiterate that the Supreme Court does not publish the transcripts of hearing, it does not live-stream proceeding (not yet), does not publish written materials and requires an advocate-on-record’s signature on a form to physically access its premises; with such conditions on open justice, how does the Supreme Court plan on ensuring public confidence?

ICLP Round Table – The Equality Bill 2019: On the Equality Courts

(This is the fourth piece in our ICLP Round Table on CLPR’s Draft Equality Bill. This post is by Anmol Jain.)


This article concerns Part V of the Draft CLPR’s Equality Bill, 2019, which deals with the constitution of district-level equality courts to enforce the non-discrimination rights envisaged under the Bill. I attempt to lay down a background for appreciating the constitution of equality courts and their desired manner of functioning.  

The Idea of Equality Courts and the Need to Establish Them

The Constitution guarantees several civil, political and socio-economic rights including the right to equality and the right against discrimination. When violated, the Supreme Court and the jurisdictional High Court have been empowered to take necessary actions. A question then arises that why we need another judicial forum in the form of equality courts. The answer is simple: ‘the constitutional courts are not approachable, affordable and accessible for a large part of the Indian masses.’ A geographically vast country like India has only one Supreme Court with no regional benches, and many States and Union Territories sharing High Courts (especially in the Northeast) among themselves. For instance, if one’s rights guaranteed under the Constitution are violated in the Andaman and Nicobar Islands, the remedy lies more than 1000 km away in Kolkata. The hefty fees of the lawyers in the High courts seems realistically unaffordable for a (severely) economically unequal citizenry that remains illiterate with the functioning of the courts.

For a true constitutional win, the State must take the courts closer to the public. South Africa, a country with a similar history as ours but in the form of Apartheid, aimed to realize this goal by constituting equality courts under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. India is already on the path of creating such courts and one of its first kind can be perceived under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which creates Special Courts and Exclusive Special Courts to address the acts of discrimination having their locus in the caste of the victim. Similarly, the Transgender Persons (Protection of Rights) Bill, 2019, if passed, would be another statute providing sanctions under a positive law for the violation of the right to non-discrimination. This is a partial success as Article 15 prohibits discrimination on the grounds of religion, race and place of birth, apart from caste and sex.    

Studied in this background, one cannot but appreciate the relevance of Chapter V of the CLPR’s Equality Bill, 2019, which provides for the constitution of equality courts. Equality courts, functioning at the District level, shall bring constitutional adjudication closer to the public and fulfil the dreams of attaining true equality. They might act as the necessary catalyst towards the fulfilment of our constitutional promises.

One of the most important reasons for their success could be the rich constitutional common law that the Supreme Court and the High courts have created since 1950, which shall help the equality courts in uniform functioning. The constitutional courts could be seen as driving the Constitution towards transformational successes by valuing individual rights with a proper balancing with the collective security of the society. The richness of rights’ interpretation in India can be best captured by a recent decision of the Madras High Court, wherein the court held a marriage between a man and a trans-woman as valid. Moreover, the manner in which the DPSPs have now been perceived as the means for achieving the goals of Part III unlike the initial years when they were considered as secondary to Part III shall guide the Equality courts in the proper enforcement of the constitutional promises.

The Desired Functioning of the Equality Courts

The arguments in this part are made after a study of the equality courts functioning in South Africa, which can provide us with the necessary guidance about how things can go wrong or remain bad if not properly implemented.

Proponents of Legal Realism argue that ‘judges determine the outcome of a lawsuit before deciding whether the conclusion is, in fact, based on an established legal principle.Jerome Frank has noted that the decision reached by a judge is not based on the systematic understanding of the facts applied to the law, but on ‘judicial hunch’ or the ‘intuitive sense of what is right or wrong in the particular case.’ These intuitive results are largely determined through the socio-economic background, political inclinations, cultural understanding, personal experiences and individual characteristics of the judge. It has been argued that “since the ‘rules’ allow the judge considerable free play, he or she can in fact decide the case in a variety of ways, and the way that is in fact adopted will be more of a function of such factors as the judge’s psychological temperament, social class and values than of anything written down and called rules.

There have been instances of judges forwarding their personal notions in the equality courts of South Africa. In one instance, a judge belonging to the dominant class imposed a restriction on the rights of the blacks to sing their struggle song by employing questionable reasoning. Even in India, we have seen that in the late 1990s, the Supreme Court delivered a number of judgments expounding on the philosophy of Hindutva, while allowing political speeches and pamphlets grossly asking for votes based on religious lines. More recently, we have seen Justice Sen of the Meghalaya High Court and Justice Chitambaresh of the Kerala High Court, speaking through religiously coloured words. This depicts how discriminatory tendencies remains embedded in the judiciary, which dangerously ‘continues to favour the socially and economically dominant members of the society.’  

For successful functioning of the equality courts, it is necessary to secure the judges from being dominated by their discriminatory ideologies. They are one of the most important elements responsible for the success or failure of a justice system as they speak for the courts and their actions determine the level of confidence public shares for the entire institution. If we want people to approach the equality courts, we must first ensure that the Judges are well trained and properly sensitized to handle the matters of discrimination. Therefore, Clause 4 of Section 24 of the Equality Bill, which states that ‘Every judge presiding over a designated Equality Court shall receive a prior training on this Act, in the manner as may be prescribed under the Rules’, becomes extremely important and practically significant.

Apart from judicial sensitization, the Government would also need to ensure that the public is adequately aware of the equality courts and that they are accessible in terms of finances and judicial process. It is disheartening to see that the Government has decreased the Budget for the law and justice and has only earmarked one crore rupees for the advancement of transgender persons under the Transgender Persons Bill. Unless proper awareness campaigns are organized to educate people about their rights under the Bill and the judicial process required to be followed for their enforcement, the equality courts might end-up being just another theoretical attraction.

The courts could be based on the South African model, which has tried best to remove the barriers faced by public while approaching a court. It has made the courts to function in an informal manner, with case filing being nearly inexpensive for litigants and has provisioned for equality clerks as a guide for the litigation. We must ensure that the courts ‘operate with innovative and creative procedural and evidentiary rules that aim to maximise access to justice for victims of discrimination.’

Another important task for the Government shall be to ensure that the poor and underprivileged people have regular access to the courts. It has been noted by the South African Human Rights Commission that: “Equality Courts are not being utilized by the poor and vulnerable.Majority of the complaints are filed by the dominant class people, who hire best lawyers ‘to overpower the undereducated complainants.’ Unless these deficits are overcome in our system, we might fail to achieve the noble aims of the Equality Bill.

Concluding Remarks

The demand for a comprehensive anti-discrimination law is long pending and multiple attempts have been in the past. The reason is simple: it enlists the equality aspirations and non-discrimination responsibilities of the people in a specific and explicit manner, unlike the Constitution that has provided us with the overarching principles. The central stage is always afforded to the implementing body, which ensures that the statutory promises and objectives are fulfilled in their best essence. The constitution of equality courts shall fulfil such purpose and shall help us in achieving the constitutional promise in a more effective manner through forums closer to the public. Once properly sensitized, the equality courts shall bring with themselves the people-friendly and innovative tools for addressing individual actions of discrimination and might possess the possibilities of meeting the transformational goal of the Constitution.  

Quoting from Narnia Bohler-Muller’s work: “the creation of the Equality Courts in South Africa presents us with numerous possibilities. They do not depict in and of themselves the end of oppression but they do provide us with the hope for the future.” Hoping the same for our mature democracy, we must now endeavour to shift the constitutional adjudication at the ground level.

The RTI Amendments: Constitutional Statutes in Precedent and Practice

In the previous two posts, Malavika Prasad and I have developed the concept of a “constitutional statute”, in the context of the recent amendments to the Right to Information Act. In the first post, I argued that a constitutional statute provides a statutory framework towards implementing a fundamental right, thereby fulfilling the State’s positive obligation to do so. This is what justifies the status of the Information Commissioners under the RTI, and the requirement of independence – akin to election commissioners and judges – flowing therefrom. In the second post, Malavika further refined the idea, arguing that not every statute implementing a fundamental right has the status of a constitutional statute. There must either be a delegation to Parliament expressly envisaged in the Constitution itself (such as the case of elections), or the statute must – in some way – regulate the relationship between the individual and the State; and it is the manner in which that relationship is structured that gives rise to the specific constitutional implications at issue (such as, in the case of the RTI, the requirement of that Information Commissioners be independent).

In this concluding essay in the series, I will address one important objection to this argument: that because, unlike Election Commissioners and Judges, Information Commissioners do not have formal constitutional status, it follows that the constitutional safeguards applicable to the former (especially the safeguarding of independence and autonomy) cannot apply to the latter. The theoretical justification was provided in the first post, where I discussed Tarun Khaitan’s idea of “fourth branch institutions”, which may or may not find specific place in the Constitution, but which nonetheless perform functions (such as regulating the individual/State relationship in the manner described above) that justify bringing them together under one head when it comes to issues such as independence and autonomy. And in this post, I will conclude the argument by discussing how this proposition has already been affirmed by the Supreme Court, in the context of cases involving the Central Vigilance Commission (CVC) and the Central Bureau of Investigation (CBI).

Recall that, upto a point, neither the CVC nor the CBI had any statutory foundation. That changed in Vineet Narain v Union of India. Recall that the case arose out of an allegation that the CBI was not doing its job under political pressure. After passing a series of interim orders effectively placing various investigations under its direct supervision, in its final judgment, the Supreme Court made the following observations:

In view of the common perception shared by everyone including the Government of India and the Independent review Committee (IRC) of the need for insulation of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view in ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.

In other words, therefore, the independence of the CBI – as a body tasked with investigating offences that often involved powerful and politically influential people – flowed from the constitutional principles of equality and the rule of law. Having noted this, the Court then passed legislative guidelines under Article 142 (the Vishaka technique), which would hold the field until a suitable statutory framework was established. The Court once again repeated that these guidelines were being passed in order to implement equality and the rule of law.

And what of the Guidelines themselves? Apart from insisting that the CVC be given a statutory basis, the Court also laid down a number of guidelines to ensure independence: these included setting out the appointments process, specifying that the tenure of the CVC Director would be two years (recall that a fixed tenure is exactly what the RTI amendments have now done away with), putting brakes on transferring the CBI Director (another thing the RTI amendments now enable), and so on.

In other words, therefore, Vineet Narain stands for two propositions that are relevant to us. First, the Court found that the purpose of the CVC and the CBI was to – inter alia – guarantee the constitutional principles of equality and the rule of law, by ensuring that the highest and most influential of people would be brought to book if they broke the law. Flowing from this, the Court laid down a set of guidelines to ensure the independence of the officers in these posts. And secondly, the Court’s opinion was that fixed tenure and constraints upon transfers were crucial aspects of guaranteeing such independence.

Let us now fast-forward twenty-one years, to the notorious Alok Verma case of late 2018. Recall that the core issue in that case involved the transfer of the CBI Director. Of course, in 2018, there was a statutory framework. The CVC Act had been brought into force, and the DSPE Act had been amended to include the CBI Director. The Supreme Court’s guidelines – including those on independence – had been legislatively enacted. The question in Alok Verma involved the interpretation of that statutory framework.

After going through the history of the CVC and the CBI, in paragraph 24, the Court noted the submission of Alok Verma’s counsel:

Shri F.S. Nariman and Shri Dushyant Dave, learned Senior Counsels, who have argued the case for Shri Alok Kumar Verma, Director, CBI and Common Cause have contended that the history of the institutional framework surrounding the CBI leading to the statutory enactments in question and the views expressed in the judgment of this Court in Vineet Narain (supra), including the operative directions under Article 142 of the Constitution, can leave no doubt that the judicial endeavour should/must always be to preserve, maintain and further the integrity, independence and majesty of the institution i.e. CBI. This is the core intent behind the statutory enactments and the amendments thereto, details of which have been noticed. The Director of the CBI is the centre of power in an abundantly powerful organization having jurisdiction to investigate and to prosecute key offences and offenders having great ramifications and consequences on public life. There can be no manner of doubt that the Director who has been given a minimum assured tenure of “not less than two years” must be insulated from all external interference if the CBI has to live up to the role and expectations of the legislature and enjoy public confidence to the fullest measure. This is how the provisions of the cognate legislations i.e. the CVC Act, 2003 and DPSE Act, 1946 (as amended), must be interpreted, according to the learned counsels. It is specifically urged that the embargo under Section 4B(2) of the DSPE Act which mentions that the Director shall not be transferred except with the previous consent of the Committee must be construed in the broadest perspective to include any attempt to divest the Director, CBI of his powers, functions, duties, etc. in any manner whatsoever and not necessarily relatable to the transfer of the incumbent as is understood in ordinary parlance. According to the learned counsels, unless such a meaning is attributed to the provisions of Section 4B(2) of the DSPE Act, the legislative intent would be rendered futile and so would be the entire judicial exercise culminating in the operative directions of this Court in Vineet Narain (supra).

I have extracted the entire paragraph because, in essence, what Fali Nariman and Dushyant Dave argued in Alok Verma’s case is precisely the argument we are making here for constitutional statutes. The analysis starts with the functions being performed by the body. If these functions include implementing a constitutional right and standing between the individual and the State, then certain further requirements flow from that. One specific requirement is that of independence and autonomy (a characteristic feature of constitutional functionaries) – in turn, guaranteed by a fixed tenure, constraint upon transfers, and so on. And most notably, these requirements exist independent of the fact that the officials in question are not formally constitutional functionaries, and also, independent of the specifics of the statutory framework in place; rather, they flow from constitutional imperative, with the task of the statutory framework being to supplement and give effect to them (which is exactly why, in the absence of a statute, the Supreme Court passed legislative guidelines in Vineet Narain; without the above analysis, it should be clear, the Court could not have done what it did in Vineet Narain).

Notably, in Alok Verma’s Case, the Supreme Court agreed with this argument. In paragraph 32, it noted that the statutory framework of the CVC Act and the DSPE Act was a “sequel” to the directions in Vineet Narain (which, in turn, it is important to reiterate, flowed from the constitutional function being performed by the CBI). The Court then noted in paragraph 33 that – specifically – Vineet Narain’s observations on independence and insulation – grounded in the right to equality and the rule of law – “hold a special field.” The Court then applied these principles to interpret the DSPE Act and find that Alok Verma’s transfer was not in accordance with law.

Reading together the judgments in Vineet Narain and Alok Verma, what clearly emerges is the fact that even though the CBI was not – and never had been – provided for in the Constitution, its role and functions (implementing fundamental rights and standing between individuals and the State) required a guarantee of independence in a manner broadly similar (although, of course, different in the particulars) to constitutional functionaries. In particular, security of tenure and constraint upon transfers were treated as vital to securing that independence.

There is precedent, therefore, for the argument to treat the Information Commission as a “fourth branch” institution similar to the CBI. Although, of course, the two bodies perform very different functions, what unites them is that they implement fundamental rights, and – in different ways – stand between individual and State, with a view to making the latter accountable to the former. This is what gives the statutory framework regulating these bodies the status of constitutional statutes, and this (especially the latter) is what requires guarantees of independence with which the statutory framework itself must comply. And the focus on tenure and transfers shows that a dilution in those areas does undermine independence, and that therefore, a strong case can be made for holding it to be unconstitutional.

Guest Post: RTI and the Idea of a Constitutional Statute

(This is a guest post by Malavika Prasad.)


The RTI Amendment Act 2019 has been critiqued for compromising the independence of the RTI’s “nerve-centre” – the Information Commissioners [“ICs”] and the Chief Information Commissioner [“CIC”]. It is argued that “the RTI Act was designed to redress the imbalance of power between citizens and the State…” In that context, the CIC and ICs, being tasked with “adjudicating between the two…”, need to be independent of the State. The Amendment – it is argued – eviscerates the ability of the CIC and ICs to be independent, because government gets to “control the terms of appointment as well as the salaries of the information commissioners.”

An alternate view has been that the mere conferral of rule-making power on government to decide tenure, salary and conditions of service, is not sufficient to conclude that independence of ICs and the CIC is at stake. Moreover, the amendment specifies two protections: “salaries, allowances and other conditions of service of” CICs or ICs “shall not be varied to their disadvantage after their appointment”, and the CIC and ICs appointed prior to the Amendment shall continue to be governed by the provisions of this Act and rules that were applicable then. These would prevent government from willy-nilly targeting inconvenient officers through its rule-making power, particularly since the provision on removing ICs and the CIC remains untouched by the Amendment. Any further comment on the loss of independence from government, for ICs and the CIC will only be possible once the new rules are enacted, the argument goes.

In this post, I attempt to develop a normative account of “constitutional statutes”, which Gautam Bhatia asserts the RTI is a classic example of. I then propose that for “constitutional statutes” of the type at issue here, the Constitution structurally requires independence between the government and the institutions at issue. On that account, I will attempt to answer the question whether the mere conferral of rule-making power by government to decide salaries and conditions of service, without more, is unconstitutional.

What might a constitutional statute be?

Bhatia argues that “constitutional statutes” are those statutes “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” Other jurisdictions such as the UK have used this formulation as well. Lord Justice Laws, in Thoburn v Sunderland City Council [2002] 3 WLR 247, held that a constitutional statute “enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” What exactly is the State’s obligation towards “fulfilling a constitutional right”? Constitutional rights are merely the floor. While governments have a positive obligation to ensure no individual is subject to treatment below the floor, there is no constitutional prescription on the extent to which government ought to positively fulfil the right above the floor. Any step taken by government to fulfil a right, to any extent above the floor stipulated in Part III, is a step towards discharging its positive obligation. On this reasoning, arguably, all laws are enacted in pursuance of the State’s positive obligation to fulfil constitutional rights.

But is this sufficient to make all such laws “constitutional statutes”? I think not. Something more is required.

For clues on what might qualify as “constitutional statutes”, I propose to rely on the structure of government as gleaned from constitutional text. In drawing inferences about constitutional principles from the structure of the government and its relationship with other institutions and citizens, I make what theorists like Phillip Bobbitt and Charles Black call a “structural argument.”

Some constitutional provisions state that the domain of that provision will be open for Parliament to legislate on, so long as the legislation is in line with the Constitution. Article 327 is one such provision:

327. Power of Parliament to make provision with respect to elections to Legislatures: Subject to the provisions of this constitution, Parliament may from time to time by law made provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

The power allowed to Parliament in Article 327 extends to “all matters relating to, or in connection with, elections to either House…”. The only caveat is that the parliamentary power shall be “subject to the provisions of this Constitution.”  Should Parliament choose to exercise this power allowed to it, in line with the constitutional provisions in the domain of elections, Parliament will be enacting a “constitutional statute” by fleshing out rules in line with the constitutional logic for that domain. Thus, the Representation of the People Acts (RPA) of 1950 and 1951 are “constitutional statutes”. This understanding is somewhat in line with Lord Justice Laws’ second formulation in Thoburn: that a constitutional statute “conditions the legal relationship between citizen and State in some general, overarching manner.”

Is the RTI Act a constitutional statute?

If Parliament enacts laws in the election domain under Article 327, it ought to obey the following provisions:

  1. On “conditions of service and tenure of office” in the proviso to Article 324(5): The conditions of service of the Chief Election Commissioner (CEC) cannot be varied to his or her disadvantage after appointment.
  2. On removal from office in Proviso to Article 324(5):
    1. The CEC cannot be removed from office except by following such procedure and on such grounds that Judges of the Supreme Court may be removed.
    2. Election commissioners and regional commissioners cannot be removed from office except by recommendation of the CEC.

The requirement of parity between Judges of the Supreme Court and the CEC on the question of removal from office is telling. Judges can be removed from office only by an order of the President, supported by a majority of the members of both Houses of Parliament and two-thirds present and voting, on grounds of “proven misbehaviour or incapacity” (Article 124(4)). The purpose of such a stringent removal provision is to guard the independence of the Supreme Court from government’s executive power – which can otherwise be used to willy-nilly target judges tasked with adjudicating cases in which government is a litigant. It is this same kind of structural independence that Article 324 intends to preserve between the Election Commission and government, in the removal clause, to enable it to be a neutral arbiter between government, voters, and candidates and parties contesting elections. By extension, all the requirements of Article 324 can be understood in terms of the need to preserve the Election Commission’s institutional independence from government. Thus, the RPAs and other laws enacted Parliament under Article 327 will thus have to be in line with this constitutional mandate.

Crucially, therefore, it follows from the structure of the Election Commission/Supreme Court and their relationships with government, that the Constitution is committed to ensuring the independence of all institutions tasked with being an arbiter between government and citizens. The RTI Act – which seeks to enable ICs and the CIC to be arbiters on the question whether government-information is disclosable or privileged – would thus also be covered by this principle. If the RPA, 1950 and RPA 1951 are constitutional statutes, then the RTI Act, by necessary inference, would also be a constitutional statute. In fact, the unamended RTI Act mandated that salaries and conditions of service of ICs and the CIC be the “same as that of” Election Commissioners and the CEC.  This shows that even the enacting Parliament understood the RTI Act to be structurally similar to the RPAs and the election law regime.

What turns on the RTI Act being a “constitutional statute”?

That the RTI Act is a “constitutional statute” does not automatically make the 2019 amendment unconstitutional. The devil, as they say, is in the details.

Returning to the structural analysis of the Election Commission, we find that the Constitution contemplates its institutional independence on two fronts: varying the conditions of service of the CEC, and procedure for removal from office of the CEC and election commissioners/regional commissioners. The rules on these two aspects, encoded in Article 324(4) are the express textual constraints on Parliament’s power to enact the “constitutional statute” on elections under Article 327. So long as a parliamentary law does not violate the rules on the two fronts read purposively, and other provisions of the Constitution generally, Parliament’s power to enact the “constitutional statute” is plenary. This is evident from the text of Article 327 which allows Parliament the power to legislate on “all matters relating to, or in connection with, elections to either House…” – the significance of which becomes clear when compared with the more limited power to legislate on merely the time, place and manner of elections that is allowed to state legislatures and the Congress in Article 1, Section 4 of the American Constitution. If Parliament enjoys a plenary power to enact laws on elections subject to the express constraints in Article 324(5) and other provisions of the Constitution, then Parliament’s power to enact other structurally similar constitutional statutes such as the RTI Act must be bound by structurally similar constraints.

The RTI 2019 amendment does not permit varying conditions of service of the CIC and ICs to their disadvantage after appointment. Likewise, it does not change the rules on removal of the CIC and ICs, which, under Section 14 of the Act, can be done only on “ground of proved misbehaviour or incapacity” after a Supreme Court inquiry on a reference of the President. Thus, as a constitutional statute, the RTI 2019 amendment obeys the requirements laid out in the Constitution for institutions such as the Election Commission, which are structurally and relationally similar to ICs and the CIC.

The tenure of ICs and the CIC, which was statutorily fixed at five years, is now, along with salaries and other conditions of service open to government to prescribe by way of rules, per the 2019 amendment. Can the mere conferral of rule-making power on government on these aspects be constitutionally suspect? Article 324(5) leaves the tenure and conditions of service of election commissioners and regional commissioners to the power of Parliament under Article 327. Parliament ought to enact laws in this regard, towards fulfilling the purpose of ensuring the Election Commission’s independence from government, and in line with the Constitution’s provisions generally. The Parliament may choose to do this by delegating rule-making power in this regard to government, since the mere act of delegation of legislative power does not compromise institutional independence or violate other provisions of the Constitution. Applying the same reasoning to the RTI context, the RTI is a constitutional statute which must ensure independence of ICs and the CIC from government. Consequently, any delegated legislation enacted by government empowered to do so by the RTI 2019 amendment will need to preserve the independence of ICs and the CIC and be otherwise constitutional.  This inquiry, however, can only be done once rules are enacted by government.

The Kanojia Bail Order: Two Constitutional Issues

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

[First published here. Reposted with permission.]


In this blog post, Abhinav Sekhri has lucidly highlighted some of the systemic issues around the journalist Prashant Kanojia’s arrest and subsequent release on bail: in particular, the heavily politicized character of the police forces, and the structural reasons why Magistrates – the first line of defence in the fight for civil rights – too often act like postage stamps when it comes to confirming remand orders. In this post, I want to approach the issue from another angle, focusing on the Supreme Court. I will argue that the Court’s bail order is an extraordinary one, departing from ordinary procedure, and can only be justified if its underlying jurisprudential basis is an extraordinary emphasis being placed upon freedom of speech and personal liberty. While the Court does not spell this out in the order, it is – as I will argue – necessarily implied; but at the same time, it will have value only if it is now applied across the board and uniformly, in cases of this kind.

Recall that Kanojia was arrested by the UP police for some tweets “defaming” the Chief Minister of UP, and others that allegedly “insulted Hindu gods and goddesses” (the latter allegation was added subsequently, presumably after the UP police discovered that out of the two criminal provisions in the FIR, criminal defamation was non-cognisable – making the arrest illegal – and that not only had they erroneously invoked Section 66 of the IT Act instead of 66A, but 66A itself had been struck down as unconstitutional four years ago). In response, Kanojia’s wife moved the Supreme Court through a habeas corpus petition under Article 32 of the Constitution. Crucially, however, by the time that the case was heard by the Supreme Court, Kanojia had been produced before a Magistrate, who had remanded him to custody until 22 June. This meant that effectively the petition was no longer challenging Kanojia’s arrest but a judicial order of remand.

In this context, there were two important procedural questions that arose. The first was whether a habeas corpus petition was maintainable against a judicial order (as opposed to the more standard set of cases where habeas corpus challenges an illegal arrest); and the second was whether, as a matter of judicial propriety, the Supreme Court should have heard the matter under Article 32, when the High Court of Allahabad had not been approached by way of Article 226 proceedings.

 Maintainability

It is important to (very briefly) recapitulate the basics. The writ of habeas corpus – as everyone knows – was evolved to protect individuals against illegal detention, by forcing State authorities (in whose custody they were) to produce them in court. The State would then have to prove that the detention was legal; if it could not do so, the individual would be set free.

This makes it immediately clear that by definition, the habeas corpus remedy is directed against the Executive. However, where constitutional procedures under Article 22 have been fulfilled – i.e., the arrested individual has been produced before a Magistrate within 24 hours, unless the arrest has been made under a preventive detention law – at that point, a judicial authority has been seized of the matter. If the judicial authority then directs the accused to be remanded, the deprivation of his liberty is no longer courtesy of the Executive, but has received judicial imprimatur. Ordinarily, then, a habeas corpus remedy – through which the writ courts can be approached directly – will not lie; the accused must take their chances through ordinary proceedings, presumably under Section 439 of the CrPC. .

Over the years, however, the Supreme Court has carved out a very narrow set of exceptions to this rule. The position of law was summed up most recently in March 2019, in CFIO v Rahul Modi (thanks to Abhinav Sekhri for directing me to this case), where – on a survey of precedent – the Supreme Court reiterated that a habeas corpus petition against a remand order would not lie unless the Magistrate had acted without jurisdiction or if the remand order was “without jurisdiction or passed in an absolutely mechanical manner or wholly illegal” (this formulation comes from Manubhai Ratilal Patel v State of Gujarat). The basic idea appears to be that if the Magistrate acts in a way that cannot be described in any sense as “judicial”, their order is no better than arbitrary executive detention, and can therefore be challenged through habeas corpus.

It should now be obvious that, in the context of this high threshold, the Supreme Court’s finding that the habeas corpus was maintainable necessarily depended upon its finding that the Magistrate’s order of remand was “wholly illegal” or had been passed “absolutely mechanically” (jurisdiction was not an issue here). The Court, however, made no mention of whether the remand order had been passed “mechanically” or not; what it did say was that it was granting bail because of the “glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media”, and in view of the “excessiveness of the action taken.”

Although Justices Banerjee and Rastogi did not elaborate further, our discussion above should make it clear that the Court’s order rests upon the necessary inference that freedom of speech and personal liberty are such critical constitutional values, that the “deprivation of liberty” for a pure speech offence (“… putting up posts/tweets on the social media” (sic)) would ipso facto be presumptively illegal. Notice that the Court did not qualify its order in any way, or dilute it, by making observations about the character or the nature of the speech in question. Instead, the Court noted that “the fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.”

In other words, therefore, it necessarily follows from the Court’s order that granting custody for pure speech offences is illegal and unconstitutional (of course, this does not include cases involving an ongoing incitement to violence or public disorder, because in those cases it is no longer a pure speech offence – but it does involve cases of defamation, “hurting religious sentiments”, obscenity and the like). It is perhaps a measure of how far we have drifted from the promise of the Constitution that this eminently sensible and reasonable proposition today sounds almost odd to the ears. Readers will recall how, in a similar case, another bench of the Supreme Court told an individual that “jail would be the safest place” for him, for offending religious sentiments.

Article 226

The second issue was not one of formal maintainability, but of propriety. Even under writ proceedings, there is no doubt that it would have been more appropriate for habeas corpus proceedings to have been filed before the Allahabad High Court, instead of leapfrogging it to come straight to the Supreme Court. Here again, the Court noted that:

As a matter of self imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media.

Here again, what seems to have particularly weighed with the Court was that Kanojia had been unduly deprived of his personal liberty – and by the time the High Court could be approached and pass orders, this violation would remain an ongoing one. Once again, this is an approach that places an extremely high premium on personal liberty – where even an hour spent in custody is a grave infringement of rights that must be taken with utmost seriousness – and is keeping in with the finest ideals of the Constitution. If followed consistently, it would transform the existing situation – especially, for example, with regard to under-trials who spend years languishing in jail by virtue of provisions such as Section 43(D)(5) of the UAPA.

Conclusion

An American legislator once famously said: “If I let you write the substance and you let me write the procedure, I’ll screw you every time.” Some of the most significant legal developments take place not through sweeping substantive changes to law, but through subtle, almost unnoticed procedural evolution. The Supreme Court’s brief bail order in Kanojia’s Case is an order that, in the manner in which it engages with procedure, has the potential to transform substantive constitutional law and jurisprudence, towards a more rights-protective direction. However, so far it remains only potential: this is because although the substantive issues necessarily flow from the procedural findings, they have not been specifically spelt out in the judgment (and understandably so). Thus, while Justices Banerjee and Rastogi ought to be applauded for the verdict – and for what it entails – it is now the task of the Supreme Court, the High Courts, and the lower courts to take this forward and make it truly meaningful.

A Question of Power

On Tuesday, the complainant in the sexual harassment case against the Chief Justice of India, decided against participating further in the proceedings of the In-House Enquiry being conducted by three sitting judges of the Supreme Court. In a press release, the complainant set out for reasons for her decision: that she was not allowed to have her lawyer accompanying her, that there were no video or audio recordings of the Committee proceedings, that she had not been given copies of her depositions, and that she had not been informed of the procedure that the Committee was following.

At this point, it is unclear what will happen. Technically, having heard the complainant, the In-House Committee could now proceed without her, examine any witnesses it deems fit, and come to its conclusions ex parte. At the same time, the legitimacy of these proceedings – which have been of an informal and ad hoc character so far (more on that anon) – cannot but be significantly damaged by the public exit of the complainant herself.

While we wait to see how events unfold, it is perhaps an apt moment to recall how it is that we got here. But before that, a few points need to be made.

Structures and Institutions

Sexual harassment is bound up with questions of power. Power operates along multiple axes in the ways that it structures our lives and relationships, and in the ways that it distorts them. It is of little surprise, then, that cases of sexual harassment (of varying degrees of severity) so often flow out of situations where differences in power are at their starkest, and the possibilities of abuse are rife: between teachers and students, employers and employees, the rich and the poor, army-men and occupied populations, and so on. And structuring all these relationships is the institution of patriarchy, that, in its own way, distorts relationships even in the absence of these more obvious markers of power. For example, the sense of impunity that society often attaches to male conduct (“boys will be boys”), accompanied by the corresponding sense of stigma attached to those at the receiving end of sexual harassment, skews power dynamics right from the outset.

Why is this important? It is important because the way in which power dynamics frame and characterise sexual harassment cannot but spill over into the structures of accountability that are set up to address them. If those structures of accountability do not take into account this fact, and do not seek to pro-actively mitigate its effects, accountability itself will remain a mirage. To put it in simple terms: when two deeply unequal parties are brought before a tribunal, where the powerful stands as the accused and the powerless as the accuser, “neutral” rules that treat them as formally equal will invariably perpetuate the initial injustice.

Progressive anti-sexual harassment laws recognise this. For example, the famous Vishaka judgment recommended that complaint committees should involve third parties (either an NGO or someone else familiar with issues of sexual harassment) precisely to “prevent the possibility of any undue pressure or influence from senior levels [of the organisation].” The 2013 POSH Act requires that an internal complaints committee be headed by a senior woman employee. Among other things, it allows for a complainant to ask for a transfer to another workplace, while the enquiry is pending. These are all provisions (and there are others) that specifically recognise the inequalities of power that seep into accountability processes, and the need to design structures that can adequately address them.

The Background

Keeping this framework at the back of our minds, let us now look at what has transpired in this case. The facts are well-known, and have been discussed threadbare in the public domain: on the (Saturday) morning that the allegations broke, the Chief Justice convened a bench of himself and two other judges (Arun Mishra and Sanjiv Khanna JJ). The government’s top law officers (the Attorney General and the Solicitor General) were present in Court. From the bench, the Chief Justice proclaimed his innocence, declared that the allegations were part of a conspiracy to destabilise the judiciary, and pointed to the criminal antecedents of the complainant and her family; in this, he was supported by both the law officers.

There has been extensive criticism – including by the SCBA and the SCAORA – on the procedural improprieties of this hearing. However, there is something even more important here: the deeply unequal power relations that structured the relationship between the accuser (a former employee) and the accused (the Chief Justice of India) were distorted even further when the latter decided to ascend the judicial pulpit to exonerate himself, with the support of two other judges of the Supreme Court, as well as the government’s top two law officers. A blanket denial of allegations, an attack upon the character of the complainant, and references to a large conspiracy are all common responses in cases like this; not everyone accused of sexual harassment, however, has the chance to proclaim his innocence in Courtroom No. 1 of the Supreme Court, with the Attorney General and the Solicitor General to call upon. In effect, the complainant was damned by five of the most powerful men in the country, before being heard.

This situation was compounded further by the hearing on the 24th of April. The bench now comprised of Mishra, Nariman, and Gupta JJ. This bench decided to look into an affidavit filed by Utsav Bains, claiming that he had been offered a bribe to frame the Chief Justice. Once again, I will not here discuss the controversy that has erupted around Utsav Bains and his affidavit(s). There is a different point: in the morning hearing, the Bench expressed its desire to combat the “larger conspiracy” ostensibly at play, and summoned the chiefs of the Delhi Police, the Intelligence Bureau, and the CBI, for a close-doors meeting. When an apprehension was expressed about how this would affect the sexual harassment allegations, Nariman J. emphasised that the two issues were entirely separate.

Unfortunately, Nariman J.’s protestations ring hollow. When the special bench in question was following up the hearing that the Chief Justice had convened on Saturday, and when the claims about a larger conspiracy against the Chief Justice and the judiciary were themselves now linked to Utsav Bains’ accusation that he had been bribed to fix the Chief Justice in a sexual harassment case, nobody could possibly maintain with a straight face that the two issues were separate. But most damningly of all, in that very morning hearing, Mishra J. specifically observed that “CJI Gogoi was trying to clean up the system” – hinting, thus, that it was for his independence that he was being targeted. How could anyone possibly argue that the judicial discourse around the “larger conspiracy” had nothing to do with the allegations of sexual harassment?

It is at this point that the question of power once again comes to the fore. Without having (yet) heard the complainant, the entire focus of the three-judge bench was on a possible conspiracy against the judiciary, a conspiracy that could have legs – and let’s be blunt here – only if the complainant was a liar. And every act taken by the bench – from Mishra J.’s statements in the morning hearing to the decision to summon law enforcement agencies for a closed-doors meeting, to the decision to have the matter probed by (Retd.) Justice A.K. Patnaik was, once again, a distortion of the power relationship against the complainant. Here was a bench of three Supreme Court judges saying that there were strong enough indications that the complainant was indeed a liar, very publicly summoning high-level law-enforcement agencies to their chambers (indeed, one of those agencies – the police – was precisely the entity that the complainant accused of having victimised her), and finally ordering a probe by a retired Supreme Court judge. And all this – and this cannot be stressed enough – without the complainant having been heard. Even once.

Meanwhile, Bobde J. – the second senior-most judge of the Supreme Court – had set up an In-House Committee consisting of himself, Indira Bannerjee J., and N.V. Ramana J., to look into the sexual harassment allegations. At this point, it took a public intervention by the complainant for Ramana J. to (correctly) recuse himself from the panel – for the very simple and straightforward reason that on the day that the allegations broke out, he had already dismissed them (effectively) as having been motivated.

It is one of the most basic principles of procedural justice that if you have already commented upon the merits of the case in a way that shows a clear view one way or another, you should not be on the Enquiry Committee that is probing that case. So why did it need the complainant to point this out before appropriate action was taken? Why wasn’t this evident at the time the In-House Committee was constituted? What does it do to the power relations in this case, already distorted beyond recognition after the Saturday morning hearing and the 24th April hearing, for the Supreme Court to constitute an In-House Committee seemingly either oblivious or indifferent to the fact that one of its members had conflicted themselves out by very publicly taking the side of the Chief Justice?

The Committee

It is in this institutional context that the complainant’s final act – to withdraw from the proceedings – now needs to be understood. When the In-House Committee was constituted, the Women in Criminal Law Association published a letter asking that best practices in cases of enquiries into sexual harassment, as set out under the POSH Act, be followed. What the Court elected to do, instead, was to set up what was effectively an ad-hoc process, with the constitution of the In-House Committee (where, after Justice Ramana’s recusal, Indu Malhotra J. came in). Among other things, one crucial departure from the Vishakha Guidelines was the absence of an external member on the Committee, an absence rendered even more critical by the fact that the complaint was against the (administrative) head of the institution himself.

That being the case – and given everything that had already happened before, as discussed above – the onus upon the Committee was particularly strong to ensure that the unequal power relations that characterised this case were mitigated by a set of structures and procedures that were designed to level the playing field in substantive ways. In particular, the In-House Committee had to deal with how best to restore the balance after two separate benches, one judge, and two government law officers had already suggested that the allegations were fabricated; how to deal with a situation where some of the witnesses testifying would be effectively testifying against their employer; how to deal with the fact that it was three sitting judges who were hearing allegations against their sitting colleague, the CJI; and above all else, how to correct the sheer imbalance of power that exists between an ex-employee and the Chief Justice of India.

The complainant’s press release suggests that the Committee comprehensively failed to address any of these issues. Each of the four points raised by the complainant speaks to issues of power: the refusal to allow the complainant a lawyer/support person, while she is facing a committee of three judges handling a complaint against one of their own colleagues, and the (administrative) head of their own institution, in a context when multiple other judges have publicly come out against the complainant, distorts the power relationship; the refusal to record the proceedings and the refusal to provide the complainant with a copy of her deposition (a procedural right that is guaranteed under the POSH Act) deprives the complainant of any kind of effective oversight over the process, and distorts the power relationship; but perhaps most of all, the refusal to disclose the procedures – in a case where procedures matter vitally, because they are critical to address the power imbalance, distorts the power relationship into something that is beyond hideous. And underlying all this is one simple fact: in any other situation, the complainant could have taken her dissatisfaction with the procedure to an appellate authority, and eventually, yes, to the court. But here, there is no appeal from what the In-House Committee does. That makes sensitivity to every single aspect of the process doubly, triply important. But once again, the facts reveal that the Court is either oblivious or indifferent to these issues.

Conclusion

It hardly needs to be said that this is not an essay about innocence or guilt, but rather, about the preconditions necessary to ensure that questions of innocence or guilt can be answered adequately. And for that, this is the point: at the time of writing, the sexual harassment complaint against the Chief Justice has been handled by no fewer than nine judges of the Supreme Court. As the above analysis demonstrates, each one of them has acted in ways that perpetuate the existing power imbalance. In the Saturday hearing, three of them either made statements against the complainant, or were complicit in the making of those statements by their silence. In the hearing of the 24th, two others did much the same. One judge agreed to sit in the In-House Committee despite being conflicted out on the most basic application of standards of conflict. And three judges who did finally conduct the In-House Enquiry did not follow processes that were sensitive to the power imbalances in this case, but rather, it appears, quite the opposite.

In 1997, following the murder of Stephen Lawrence, the United Kingdom government commissioned what would come to be known as the MacPherson Report. Among other things, the MacPherson report set out definition of “institutional racism”:

“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.” (Emphasis Supplied)


The crucial point about the MacPherson definition was that for an organisation to be institutionally racist, it doesn’t need to have people who intend to be racist, and to act upon those intentions. Rather, institutional racism stems from “unwitting prejudice”, “ignorance”, or “thoughtlessness” – almost internalised conditions, acted upon without any conscious desire or motivation to oppress or disadvantage anyone.

It is in a similar way that the above events demonstrate that there exists an institutional problem at the Supreme Court when it comes to dealing with allegations of sexual harassment, a problem that has been laid bare over the last two weeks. No doubt unwittingly, judges of the Supreme Court who have been tasked with handling the case have shown themselves unequipped to address – or even acknowledge – the bleeding heart of the problem: that this is a question of power, and without addressing that, you address nothing.

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.

On the Ethics of Representation in an Adverserial System: A Response – II (Guest Post)

(This is the second essay in Goutham Shivashankar’s two-part guest post series.)

This is my second post in response to Gautam Bhatia’s post on the “Ethics of Representation in an Adversarial Legal System”. The question we are considering is essentially this: ought a lawyer’s decision to represent a “morally unworthy client” or take on a “morally unworthy case” be subject to moral scrutiny? Bhatia argues that it should. I argue that it shouldn’t. In my previous post, I had provided a systemic justification for my position, which I will not restate here. However, I do wish to point out that the systemic justification I offered, makes no reference whatsoever, to the “cab rank rule”. Indeed, the cab rank rule is irrelevant to my analysis. This is significant, since Bhatia asserts in his post that: “Once you take away the “cab rank rule”, you find that there is nothing else to justify the moral and ethical insulation of representational choices.” Hopefully, I have offered something to fill in that void.

I suspect there may be other justifications for such ethical insulation that have no relation to the cab rank rule. For instance, an advocate is obliged, under law in many legal systems, to “fearlessly uphold the interests of his client by all fair and honourable means”. Would advocates be truly fearless in their representation of a case, if they are constantly second-guessing their decision to take up the case (for fear of public censure) in the first place? I doubt it.

In this post, however, I engage directly with Bhatia’s critique of the moral insulation extended to lawyers about their representational choices.

The Cab Rank Rule is not meant to be moral escape-hatch

A large part of Bhatia’s post is devoted to interrogating the cab rank rule. He begins with the premise that all persons ought to be held ethically and morally responsible for the actions they choose to take (or not take). People in other fields are not morally and ethically insulated from their actions merely because they are “just doing their jobs”. Why should lawyers be any different? If this rule were to be displaced for lawyers, he argues, then there must be something special about them to warrant the exemption. This “something special about the legal profession”, which Bhatia states to be usually proffered by those in favour of the moral insulation of lawyers’ representational choices, is the “cab rank rule”. He states, correctly, that the cab rank rule entails that “a lawyer blinds herself to the character of her client.” Then he adds, rather strangely and stating no authority, that: “[T]he logic of the “cab rank rule” is simple. If lawyers have no real choice in whom they represent (that is, if the system commits them to this course of action), then naturally, they cannot be held morally responsible for the consequences that follow from any specific case that they do.

It appears that to Bhatia, the dominant purpose of the cab rank rule is to give lawyers an escape hatch from moral scrutiny. It’s a bit unclear why he thinks this to be the case. Everything suggests to the contrary. The rule is, in fact, designed with interest of the litigant / client in mind (especially the “unpleasant, unreasonable, disreputable” sort of litigant), and not the interest of the lawyer. As Lord Pearce put it in Rondel v. Worsley [1967] 3 All E.R. 993:

“It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right.”

The cab rank rule, then, is designed to tie down barristers to unpleasant clients, with a view to giving even such clients a fair trial by ensuring they have good legal representation. The rule isn’t aimed at all at providing a moral escape-hatch to lawyers. That simply isn’t “the logic” of the rule, as Bhatia puts it.

 The Cab Rank Rule is not amoral

 The cab rank rule cannot be regarded as devoid of moral content, merely because it precludes a lawyer from refusing a brief based on the moral worth of a client or a case. On the contrary, the rule is to be regarded eminently moral for precisely this reason. By forcing a lawyer to accept even morally unworthy clients / briefs, the cab rank rule serves an underlying public good, i.e., the assurance of (good) legal representation for every litigant in society. The responsibility of delivering that public good, as it were, necessarily and logically falls on the shoulders of the legal profession. It is a collective responsibility that the profession owes to the public. For the profession to shirk that responsibility would be immoral. The cab rank rule is the means that the profession has devised to address that collective responsibility. But the cab rank rule has additional moral content. It also precludes individual lawyers from shirking their concomitant obligation towards other members of the legal profession to contribute to the discharge of the legal profession’s collective responsibility to society. In other words, the rule prevents individual lawyers from committing the morally reprehensible act of “free-riding”, as I will explain below.

To state my point differently, the “something special about the legal profession” that warrants a certain kind of ethical insulation for lawyers for the representational choices they make isn’t the “cab rank rule” itself, as Bhatia suggests. The rule is just the messenger, so to speak. The “something special” is what underlies and motivates the cab rank rule, i.e., (i) the need to ensure legal representation for all litigants; and (ii) to ensure that there is no free-riding with respect to discharging that collective responsibility of the profession. In a seminal and widely cited paper written for the Legal Standards Board in the UK on the cab rank rule, Prof John Flood and Morten Hviid state as follows:

Recall that as regards the merit of the cab rank rule the issue is whether a defendant or the public might struggle to find representation. Broadly speaking this market failure could arise for two reasons, either the fee is viewed as inadequate or the case is so unsavoury that no amount of compensation would bring forth a champion. The latter type one might expect to be high profile with considerable media attention where the defendant stands accused of doing something truly horrific.

Before moving swiftly on to focus on the financially motivated barrister, consider the obvious alternative that barristers are acting out of a concern for justice and the rule of law. In this scenario, the cab rank rule may be a way to avoid free riding. Even if all barristers hold the view that everyone should be represented, they might rather prefer it if someone else dealt with the unsavoury cases. One might wonder, to what extent, it would become obvious to the profession if someone chose to avoid what was seen as a collective responsibility. In that case, the consequent loss of reputation might be just as effective as the cab rank rule.”

At this point, it would be worth quoting from Bhatia’s post, just to contrast the difference in approach. Towards the end of his post, Bhatia asks:

Yes, someone will represent M.J. Akbar in his criminal defamation case against Priya Ramani. But it doesn’t have to be you, does it?

Yes. It does have to be me, if the case / client lands at my table (as opposed to me seeking them out, which I am barred from doing since lawyers are not allowed to solicit work in India). Why? Because I ought not be a free-rider. To be a free-rider is a morally deplorable act. Someone has to do the dirty work of dealing with morally unworthy cases / clients. It is not Bhatia’s case that these persons do not deserve legal representation. If I draw the short straw and a morally unworthy client / case lands up on my table, the morally correct thing for me to do, is to take up the case, and not pass the buck to another lawyer. What makes me so special that I can free-ride and not be that “someone” who does the dirty work? If there is a collective responsibility in the profession to ensure all litigants are represented, what makes me special to avoid contributing my fair share to the discharge of that collective responsibility?

The “illusory” Cab Rank Rule

 Bhatia then asserts that the cab rank rule is anyway, an illusion. This, he says, is because the rule only requires lawyers to take up cases where the clients can pay “her usual rates”. Since lawyers routinely reject cases on the client’s inability to pay fees, he states that “affordability is little more than a proxy for lawyers selecting a certain type and character of client. And above all else, the simple issue is this: is a hierarchy based on personal wealth any more justifiable than a hierarchy based on (say) ideology?”. From this, he concludes, that “[T]he cab rank rule, therefore, cannot insulate lawyers from moral and ethical judgment.” What he seems to be getting at is this: if lawyers can selectively wriggle out of their obligations under the cab rank rule to represent inconvenient clients on the pretext of their regular fees not being offered, then lawyers ought not be allowed to take cover under that very rule for to justify their claim ethical insulation from their representational choices.

 A few points are worth noting here. Firstly, Bhatia’s formulation of the cab rank rule does not apply in India. In India, the Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. The rule equivalent to the cab rank rule (Rule 11 under Section II titled “Duty to the Client’) states as follows:

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

 

 Thus, In India, the rule, at least on paper, is that fees should be: (i) at par with the fees collected by fellow at par with the fees of his standing at the Bar; and (ii) the nature of the case. It is not the lawyer’s “usual rates” which determines whether he can wriggle out of taking up a case. This is material, since Bhatia’s objection seems to be that design of the cab rank rule allows lawyers to wriggle out of cases selectively on the ground that the client cannot afford the fees. The rule as formulated in India, as I understand it, will not allow this, since the fee limb of the rule is also pegged to the “nature of the case” and the fees of other similarly placed lawyers. It is also worth noting here that the fee exception to the cab rank rule isn’t designed to allow “wriggling out” of the primary obligation imposed by the rule. Rather, it is merely the effectuation of a different sort of relevant moral principle – that professionals ought to be commensurately remunerated for their experience and knowledge. Intuitively, there is nothing immoral about the fee exception. I do not see how it makes the cab rank rule any less moral as well.

Secondly, even in the UK, as per the latest Bar Standards Handbook, a barrister is entitled to reject a brief under the cab rank-rule if he is not offered a “proper fee” and the propriety of such fee is to be determined with regard to: (i) the complexity, length and difficulty of the case; (ii) the barrister’s ability, experience and seniority; and (iii) the expenses which the barrister will incur. This appears to have been the position even in the now-repealed 2013 Bar Standards Handbook.

Thus, at least on paper, both in India and the UK, the cab rank rule appears to place clear restraints on the ability of lawyers to reject cases on the ground of their fees not being paid. In India, this rule is admittedly observed only in the breach, but that ought not take away from the soundness of the rule itself.

Thirdly, this entire analysis of the cab rank rule being illusory arises only if the cab rank rule is intended to be or invoked as a moral escape hatch for lawyers. As I have argued, that was never the intent of the rule. Bhatia seems to be attacking a straw man.

But what indeed, of Ajmal Kasab and MJ Akbar?

 Bhatia concludes by dealing with the argument that if the lawyers representing the Ajmal Kasabs of the world deserve ethical insulation from representational choices, then so too do the lawyers who represent MJ Akbar. Or more generally, if lawyers who represent alleged terrorists deserve ethical insulation from their representational choice, then so do lawyers representing ministers accused of sexual harassment. To Bhatia, this argument posits a false equivalence by ignoring an important distinguishing factor between the two cases. By his account, good lawyers must be allowed to represent alleged terrorists without suffering the cognitive burden of moral judgment over representational choice because terrorists are up against the powerful state’s criminal justice machinery. It is the David versus Goliath nature of the case, and the accused’s fight against entrenched power structures that justifies the moral insulation accorded to an alleged terrorist’s lawyer in his representational choice. According to Bhatia, the same does not hold true for MJ Akbar’s lawyer in the “Me too” saga because Akbar is top-dog in the relevant power structures, both by his position both as a privileged male in a patriarchal society and by his official position as a cabinet minister. In other words, Bhatia asserts that a lawyer deciding to represent Akbar is making a representational choice to take up a “morally unworthy case” that perpetuates prevailing power structures, whereas Kasab’s lawyer isn’t.

I have already addressed this issue in my first post. To state my case briefly, there is a systemic danger in linking the morality of a lawyer’s representational choice to take up a case with the moral worth of the case. This would have the systemic effect of funnelling morally unworthy cases to immoral lawyers, who would likely employ immoral tactics to win their cases. This is a bad outcome for society at large.

Conclusion

In conclusion, to my mind, it would be folly to subject castigate a law firm like Karanjawala and Co. on ethical grounds for their decision to represent MJ Akbar in his defamation case. For similar reasons, I believe Ms. Indira Jaising, for whom I have utmost respect and have looked up to in awe ever since I moved to the Supreme Court, has committed an immoral act by refusing to continue representing Tahlib Hussain. I do believe that on this occasion, she has been a moral “free-rider” by shirking her responsibility to the profession (and to society at large) to represent someone who in her eyes has become a morally unworthy client on account of the “Me Too” allegations against him. I realize these are very bold statements for a young lawyer to make in the prevailing times. I am very open to being shown as to why I am wrong.

The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere. I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year). However, what I do want to address is the Supreme Court’s approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation. In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out – argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”, conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply “technicalities of procedure.” They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent. For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard  (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation – or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken.