Contempt of Court and Freedom of Speech: An Analysis of the Prashant Bhushan Judgment

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: 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 (link) against a former 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 (e.g., the introduction of structural mechanisms to ensure accountability)].


I began reading the 108-page long judgment (link) of the Supreme Court, which found Prashant Bhushan guilty of serious “contempt”, with a view to analysing its legal reasoning. On finishing the judgment, however, I found myself in a conundrum: there is no legal reasoning, and therefore nothing to analyse. In particular, Mr. Bhushan had filed an extensive reply (link) to the contempt proceedings against him, contextualising and defending the two tweets for which these proceedings were initiated; among other things, this Reply set out the basis for Mr. Bhushan’s opinion about the role of the last four Chief Justices in the decline of Indian democracy.

In the 108-page long judgment (the substantive part of which begins at page 93), the Supreme Court refuses entirely to engage with Mr. Bhushan’s reply. There are some colourful – and somewhat confusing – references to the Supreme Court being the “epitome” (?) of the judiciary, the need to maintain “the comity of nations” (?!), and an “iron hand” (!). There is, however, no legal reasoning, and no examination of the Reply.

It stands to reason that if an individual has been accused of contempt of court because they expressed an opinion about the role of four Chief Justices in undermining democracy, and that individual has filed a Reply setting out the facts upon the basis of which they arrived at that opinion, a “judgment” holding that individual guilty of contempt cannot pretend that the Reply does not exist. It reminds me of the times I used to take a football from the halfway line, dribble it across the pitch, and kick it into the goal – without any opposition players on the field.

But if the Court chooses not to explain itself, then there is little purpose to be served in excavating an explanation that it ought to have made, and then engaging with that imaginary explanation on legal grounds.

Consequently, I end this post here. Interested readers may consult the Reply, the “Judgment”, and draw their own conclusions.

The Afterlife of the Sabarimala Review: On the “Preliminary Question” before the Nine-Judge Bench

On this blog, I have previously discussed – and criticised – the “review” judgment in the Sabarimala case, as well as the Supreme Court’s subsequent actions in constituting a nine-judge bench to address some of the questions that arose out of that judgment. Earlier this week, during the course of oral argument, senior counsel brought up some of these issues – pointing out, in particular, that the five-judge bench could not, in the course of a review order, have “referred” legal questions to a larger bench. As a result, the nine-judge bench framed a “preliminary question”, which will be heard tomorrow: “whether this Court can refer questions of law to a larger bench in a review petition?”

Facts and Norms

This week’s hearing itself revealed two issues with the original “review” judgment, that we can take in turn. The first is the speculative character of the questions themselves, which go against the grain of how constitutional adjudication should normally happen. Doctrines of law evolve out of specific factual situations before the Court, and not out of abstract abstract philosophical enquiry. This is because, ultimately, doctrine has to be responsive to the wide range of factual disputes that could – and do – come up before the Court. In such a situation, a Court that deals in abstraction will inevitably create one of two undesirable situations: either it would have framed doctrine in such abstract terms, that it will be of no use in hearing and deciding the case before it; or it would have framed it in such concrete terms, that it would tie the hands of future benches in adapting doctrine to fit the peculiar facts that are before it in any given case.

To take the example of this case, the “referred” questions – that are about the intersection between religious freedom and gender equality – exist in a domain where there are a bewildering variety of social and religious practices. Take, for example, the religious practice of madesnana, that Suhrith and I discussed here (it is not about gender equality, but raises substantively similar questions); it should be obvious that practices of this kind are so particular and specific in character, that constitutional doctrine can only make sense if it flows from a careful consideration of the legal issues that they present, rather than first laying down abstract law, and seeing which side madesnana falls. In fact, in Sabarimala itself – as I have previously discussed – there wasn’t a whole lot of difference between the majority opinions and Malhotra J.’s dissent on the correct legal test – both sets of judgments agreed that religious practices that were oppressive or harmful to human dignity would fail the test of constitutionality. The only disagreement was whether in the specific facts of the Sabarimala case, the disputed practice fell within that definition or not. And that is exactly how adjudication should normally proceed.

In this context, the Chief Justice’s comment in Court – that the reason for this nine-judge bench hearing was that “these issues will arise again and again, resulting in a reference” – is an important one. Because that is precisely why, in fact, this nine-judge bench should not be hearing this case. The very fact that “these issues” (i.e., the interplay between women’s right to equality and religious freedom) will arise again and again is the reason that they should be decided as they arise, because the issues that they present to the Court will be layered, nuanced, and will require sensitive adjudication that is cognisant of those nuances. And as they arise, the judges who deal with them will – in the normal course of things – engage with existing precedent; they may agree with that precedent, they may disagree with it but nonetheless – exercising judicial discipline – follow it, or – if they think it is too wrong to follow – refer the issue for reconsideration. Once again, it is important to emphasise that this is how constitutional adjudication happens in the normal course of things, and that is entirely fit and appropriate: the law develops incrementally, responsive to facts, and gives judges the flexibility and the scope to modify, adapt, or alter doctrine as time goes by. It is that crucial flexibility – the hallmark of constitutional adjudication – that will be threatened if a practice of settling abstract questions in advance of concrete cases takes root in the Court.

Jurisdiction

While the first issue is one of desirability – i.e., that the Court should not decide these questions sitting as a nine-judge bench – there was, of course, a deeper issue raised by counsel in this week’s hearing: that the review judgment could not have “referred” legal questions to a larger bench. As discussed previously on this blog, that issue stems from the limited character of review jurisdiction, which is confined to checking if the original judgment suffered from an “error on the face of the record.”

It was contended by the Solicitor-General, in response, that Order VI(2) of the Supreme Court Rules, 2013, states that: “Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.” The argument, thus, is that the phrase “any cause, appeal or other proceeding” includes proceedings in review.

To understand why this argument is flawed, we need to go back to the basics. How – and why – does a referral happen in the normal course of things? It happens when, while hearing a case, it is brought to the judges’ attention that there is a legal issue – most often, a conflict – that has a bearing upon the case, which they cannot resolve, and which only a larger bench can resolve (because – presumably – the bench hearing the case is of too small a size). The issue of referral, therefore, is bound up with the process of deciding a case.

review, on the other hand, takes place after the case has been decided. And at that point, the bench is no longer considering what the legal answer to the case before it is. What it is considering is whether the reasoning that led to the decision was so fundamentally flawed, in some manner that is present “on the face of the record” (and therefore, by implication, requires no “interpretation”), that it simply cannot stand.

The distinction is crucial, because it demonstrates how the reasoning process that (potentially) leads to a referral, and the reasoning process that leads to a review, are fundamentally different – and that, by definition, the latter excludes the former. Because it is critically important to recall that a Review is not a “re-hearing” of the original case. If it was, then of course, all arguments in a hearing would be open to be re-litigated in Review. A Review is limited to a situation where the error is on the face of the record, i.e., so obvious that there can be no two ways about it. But an argument for referral always – and by definition – has two ways about it: the existing doctrine – which binds the bench hearing the case – and the interpretation that the bench may be persuaded to accept, but cannot, and is therefore referring the issue to a larger bench to decide.

Consequently, even if the Review bench believes that the original judgment answered the legal question before it incorrectly, that is not a ground for it to reopen the question; the only ground is a finding that there is an “error on the face of the record” in the original judgment (which, as we have seen, the Sabarimala Review order did not even attempt to demonstrate).

While this distinction may appear pedantic, it is of vital importance in a judicial system bound to the rule of law and the doctrine of precedent. A fundamental building block of this system is the importance of consistency in precedent. So, while the Court can always revisit – and overrule – its previous judgments, there exists a set procedure for doing so, which acts to ensure that such decisions are not taken lightly. So, in the normal course of things, if there is a five-judge bench decision holding “X”, then for it to be overruled, petitioners would have to (a) convince a two-judge bench to admit a case arguing for interpretation “Y”; (b) in a referral hearing – which can be opposed by the other side – convince the two-judge bench to refer it to a three-judge bench; (c) convince the three-judge bench to refer it to a five-judge bench; (d) convince the five-judge bench to refer it to a seven-judge bench; (e) convince the seven-judge bench to overrule the original decision. These hoops exist for the simple reason that without them, the law would be in a perpetual state of unsettled chaos, where individual judges would be perpetually at odds with one another, tugging at the law in different directions.

What the Sabarimala Review order did, on the other hand, was to short-circuit this entire process, and effectively sanction a “Sabarimala Round 2” without going through the inbuilt checks and balances that the legal system provides. This is presumably what Mr. Fali Nariman meant in Court when he said that it would set a “bad precedent”, and this is also why Order VI(2) of the Supreme Court Rules ought not to extend to hearings in Review: what it would then sanction, going forward, would indeed be a situation where Review hearings would become a “Round 2” – where speculative legal questions could be raised even after the original case had been decided – and thus seriously undermine the sanctity of precedent.

Conclusion

As discussed previously, the issues at present are no longer about the merits of the original Sabarimala judgment. They are about something deeper, and more institutional: in a poly-vocal Court of thirty-five judges, where the Office of the Chief Justice wields tremendous administrative power in selections of cases and benches, how do we ensure that the Court remains a coherent institution, and does not break down into competing factions? The present institutional structure of the Court – with its number of judges and small panels – makes judicial discipline and adherence to conventions around precedent even more crucial than in a more traditional Court (such as the US or South African apex Courts) that sits en banc, and speaks as one. From that perspective, the nine-judge bench has an onerous responsibility to discharge when it hears the preliminary question tomorrow.

 

The Curious Continuing Afterlife of the Sabarimala “Review”

[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 a former 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.]


Previously on this blog, I had noted how the “review” order in the Sabarimala judgment flouted all known principles governing the Supreme Court’s review jurisdiction. In the wake of that order, things have moved fast. Two women approached the Supreme Court, pointing out that as there was no stay on the original Sabarimala judgment, their right to access the temple continued to stand, and that the state of Kerala was bound to implement the original judgment. During that hearing, as I noted, the Court refused to pass any orders, only making a series of remarks that appeared to have little to do with the actual issues in the case. Subsequently, however, the Chief Justice established a nine-judge bench to hear the issue, which sat for the first time yesterday.

We will get to the proceedings of the nine-judge bench in a moment, but to begin with, I want to note that the leap from the five-judge bench that wrote the Sabarimala review order straight to a nine-judge bench, is an odd one. In the review order of the five-judge bench, it was observed that there might be a possible conflict between the seven-judge bench decision in Shirur Mutt and the five-judge bench decision in Durgah Committee, on the question of the role of the Court in determining the “essential practices” of a religion. Notice, however, that the Sabarimala bench did not deliver any finding on the issue (as indeed it couldn’t, as the question was not before it). Consequently, if a five-judge bench had noted a possible discrepancy between previous seven-judge and five-judge benches, then the correct course of action would have been for the Chief Justice to convene a seven-judge bench, that would have (a) heard arguments on the issue of whether there was indeed a conflict, (b) if it found there was, heard arguments on whether Shirur Mutt was correct (and that therefore, by extension, Durgah Committee had incorrectly gone against a binding judgment), or (c) if it doubted the correctness of Shirur Mutt, to then refer the question to a nine-judge bench to decide. Instead of this judicial consideration of the issues, what we got was an administrative decision of the Chief Justice to constitute a bench of nine judges off the bat, which could now directly overrule Shirur Mutt if it so decided.

This is not pedantic hair-splitting. On the contrary, it is deeply important, because respect for precedent is at the bedrock of our judicial system, and of the rule of law. Ordinarily, prior judgments of the Supreme Court are binding, and meant to be followed: this is what provides the system the stability and continuity that differentiates the rule of law from the rule of judges. Now if a later bench of the Court wants to go against binding precedent, a series of ground-rules exist to ensure that this can only happen after careful consideration and reflection, and in judicial proceedings where both sides can put their case. These ground rules stipulate, for example, that if a smaller bench feels that the binding decision of a previous, larger bench is incorrect, it “refers” the case to a larger bench to consider; and in general, this referral takes place incrementally (for example, from two judges to three, three to five etc. – although there have, of course, been exceptions). The reason for this – to reiterate – is that respect for precedent requires, logically, that settled law be disturbed only when there are weighty reasons for doing so.

However, let us now come to the proceedings of the nine-judge bench itself. When the case was first listed on the Supreme Court’s website, there was a note below it that specified that the nine-judge bench would only be considering the reference questions that the Sabarimala review order had listed, and would not be entertaining arguments on the merits of the Sabarimala petitions themselves. This, as things went, was entirely appropriate: as I pointed out in my original piece, the Review Order had not even doubted the correctness of the Sabarimala judgment, let alone refer it to a larger bench; it had, rather, referred certain “questions” that it felt might be relevant for certain other cases (involving female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques). Thus, whatever the irregularities of the Review order, a limited consideration of those referred questions was the only issue that was actually before the larger bench.

When the matter was heard yesterday, however, events took a decidedly different turn. During the course of arguments, the Chief Justice indicated that the bench intended to hear not just the referral questions, but all the cases that the referral order believed might be impacted by those questions: female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. The hearing closed with the bench directing counsel for all parties to meet and – if necessary – reframe and fine-tune the questions for decision.

While this in itself is unexceptionable (the original questions, as anyone can see, were much too broad and academic), the devil – as always – is in the details. In this case, it lies in the last line of the nine-judge bench’s order, which states:

List these matters along with Writ Petition (C) No.472 of 2019, SLP(C) No.18889/2012 and Writ Petition (C) No.286 of 2017, on 03.02.2020.

 

What are these petitions? These are the three petitions involving – as indicated above – female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. In other words, therefore, it appears that – despite originally stating (rightly) that it would only hear the reference questions, the Court now appears to have placed the pending petitions before itself. But this is absolutely unprecedented – these cases were pending before their respective (smaller) benches, and there is no order of reference asking them to be placed before this nine-judge bench.

However, there is something more concerning here. If the nine-judge bench is no longer restricting itself to the reference questions – but intends to hear these petitions as well – then it at least potentially follows that the Sabarimala petitions – out of which the review order arose – will also now be the subject matter of the hearing. This would be truly extraordinary: a final judgment of the Court (five judges) would be effectively re-heard by a nine-judge bench, against all existing norms and conventions. Recall that no judgment has yet doubted the correctness of the original Sabarimala decision, or made a reference to have it reconsidered. In other words, this “second round” with a larger bench is taking place purely by virtue of the Chief Justice exercising his administrative fiat.

It should be obvious by now that this is no longer about whether the original judgment in Sabarimala was right or wrong. People can – and do – have different views about that, and it would be entirely open to later benches to reconsider it, following proper procedures. But what is at stake here is something deeper: it is whether precedent continues to have any meaning at the Supreme Court, or whether what we are witnessing is a gradual metamorphosis of the Supreme Court of India into the Supreme Chief Justice of India (a point I have written about before). Because what has happened here is that a number crucial issues that required judicial consideration in a proper way (whether there is a conflict between Shirur Mutt and Durgah, requiring resolution; whether the referred questions actually affect the pending cases; and whether Sabarimala ought to be reconsidered) have been implicitly decided through the constitution of a nine-judge bench, by administrative fiat.

Admittedly, a lot of these problems arise out of the bizarre character of the original Sabarimala “review” order, which I have discussed before. However, in subsequent proceedings, these problems appear only to have been compounded. On the next date of hearing, therefore, it remains to be seen whether the Court will, in the end, confine itself to answering the reference questions posed in Sabarimala (which, it may be recalled, it need not even do so) – or to take upon itself a broader role that will severely compromise the already-damaged idea of precedent at the Supreme Court.

Guest Post: The Supreme Court’s Fact-Finding Priorities

[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 a former 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 post, by Abhinav Sekhri and Mansi Binjrajka, first appeared on the Proof of Guilt Blog, and has been cross-posted with permission.


Chief Justice of India, Hon’ble Mr. Justice Sharad Aravind Bobde, just yesterday, took suo moto cognizance of the working of the criminal justice system in relation to sexual offences. Highlighting how the amendments brought to criminal law after the Nirbhaya incident have not achieved the objective of speedy investigation and trial, the order passed by the Bench observes that:

The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people.” (emphasis supplied)

And therefore,

We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.” (emphasis supplied)

Thereafter, the Court “considered it appropriate” to seek not one, but TWELVE separate status reports on a variety of issues pertaining to all police stations in the country. I request the readers to peruse the order (hyperlinked above) and form their own opinion on the Apex Court’s priorities. Please note the breadth of information sought for by the Supreme Court when only a few days ago, the same Bench had declared that they do not have time to waste on fact finding in relation to police brutality against student protestors in Delhi and elsewhere. Please also note that a Senior Advocate was promptly appointed as Amicus Curiae and, in addition, the Secretary General of the Supreme Court, as well as the Solicitor General, were requested to extend their co-operation.

To have a further idea on the kind of cases where the Supreme Court thinks it does have time for fact-finding, please see the table below. It contains details of cases that were registered as suo moto writs (‘SMW’) in the last 5 years at the direction of the Court itself.

S/N CASE NO. PARTICULARS
1. SMW (C) 1 / 2019 In Re Matter of Great Public Importance Touching Upon the Independence of the Judiciary – mentioned by Sh. Tushar Mehta
2. SMW (C) 2 / 2019 In Re Felling of Trees in Aarey Forest (Maharashtra)
3. SMW (C) 3 / 2019 In Re Alarming Rise in Air Pollution in Delhi and Adjoining Areas
4. SMW (C) 4 / 2019 In Re Severe Problem Being Faced by the Citizens in Delhi and Adjoining Areas Due to Acute Air Pollution
5. SMW (Crl.) 1 / 2019 In Re Alarming Rise in the Number of Reported Child Rape Incidents

Amicus curiae – Mr. V Giri, Sr. Adv.

6. SMW (Crl.) 2 / 2019 In Re Missing of an LLM Student at Swami Shukdevanand Law College (SS Law College) from Shahjahanpur UP
7. SMW (Crl.) 3 / 2019 Ghanendra Pal Singh

Letter addressed to Secretary General of Supreme Court.

8. SMW (C) 1 / 2018 RK Sareen v. RK Kulshreshtha

SMW against order of Disciplinary Authority in relation to a bribe – due to prolonged period of litigation

9. SMW (C) 2 / 2018 In Re Filling Up of Vacancies
10. SMW (Crl.) 1 / 2018 In Re Kathua Jammu and Kashmir
11. SMC (Crl.) 2/2018 In Re The Indian Express and The Tribune Dated 2nd May 2018 Regarding Kasauli Incident

(regarding unauthorised hotels and guest houses in Kasauli)

Orders seek status reports from Govt. on names of officers posted at the time of illegal constructions, guidelines to prevent such constructions, specific steps on how the problem is to be tackled, steps taken for demolition.

Amicus curiae was also appointed.

12. SMW (C) 1 / 2017 In Re Central Selection Mechanism for Subordinate Judiciary
13. SMW (Crl.) 1 / 2017 In Re To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

Amicus curiae – Sidharth Luthra, Sr. Adv., Basant R., K Parmeshwar

Reports sought from all States and UTs on their suggestions

14. SMW (C) 1 / 2015 In Re Outrage as Parents End Life After Child’s Dengue Death

Amicus curiae – Colin Gonsalves, Sr. Adv.

15. SMW (C) 2 / 2015 In Re Muslim Women’s Quest for Equality
16. SMW (Crl.) 3 / 2015 In Re Prajwala Letter Dated 18.02.2015 Videos of Sexual Violence and Recommendations

(regarding blocking child pornography, gang rape imagery, videos and sites on content hosting sites)

17. SMW (Crl.) 1 / 2014 In Re Harassment and Physical Abuse of Ms. ‘M’ v. State of Chattisgarh
18. WP (C) 406 / 2013 Re Inhuman Conditions in 1382 Prisons

Order dt. 08.05.2018 – directs all HCs to take up matters relating to prison conditions as suo moto writs.

19. WP (C) 95 / 2012 Devika Biswas v. Union of India

(regarding sterilisation procedures for women)

Detailed directions passed in an Art. 32 writ.

Order dt. 14.09.2016 requests certain HCs to take up the matter as suo moto writs – states which had given inadequate responses to SC.

Apart from seeking information directly from Union / State Government(s) by way of status reports, it is very common for the Supreme Court to appoint Special Investigation Teams (‘SITs’) for fact finding purposes. In Ram Jethmalani v. Union of India, the Petitioner’s prayer for appointment of an SIT to investigate unaccounted monies allegedly stashed abroad was allowed and the Court observed:

“45. The resources of this court are scarce, and it is over-burdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this Court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not perform that task. In a country where most of its people are uneducated and illiterate, suffering from hunger and squalor, the retraction of the monitoring of these matters by this Court would be unconscionable.”

47. The merits of vigour of investigations, and attempts at law enforcement, cannot be measured merely on the scale of what we accomplish with respect to what has happened in the past. It would necessarily also have to be appreciated from the benefits that are likely to accrue to the country in preventing such activities in the future. Our people may be poor, and may be suffering from all manner of deprivation. However, the same poor and suffering masses are rich, morally and from a humanistic point of view. Their forbearance of the many foibles and failures of those who wield power, no less in their name and behalf than of the rich and the empowered, is itselfindicative of their great qualities, of humanity, trust and tolerance. That greatness can only be matched by exercise of every sinew, and every resource, in the broad goal of our constitutional project of bringing to their lives dignity. The efforts that this Court makes in this regard, and will make in this respect and these matters, can only be conceived as a small and minor, though nevertheless necessary, part. Ultimately the protection of the Constitution and striving to promote its vision and values is an elemental mode of service to our people

48. We note that in many instances, in the past, when issues referred to the Court have been very complex in nature, and yet required the intervention of the Court, Special Investigation Teams have been ordered and constituted in order to enable the Court, and the Union of India and/or other organs of the State, to fulfill their constitutional obligations. The following instances may be noted: Vineet Narain v Union of India, NHRC v State of Gujarat, Sanjiv Kumar v State of Haryana, and Centre for PIL v Union of India.”

It is possible to create a similar table as the one above for situations where the Supreme Court has actively sought information to be placed before it. It is also possible to list out innumerable instances where the Supreme Court has exercised its jurisdiction even where the petitioner did not first move the High Court. But the point of this post is not to create an exhaustive glossary of such instances, but to highlight that the Court’s observations on their inability to undertake fact-finding exercises borders on disingenuous.

Whether or not one agrees with these policy choices of the judiciary is besides the point, for today we are at a place where fact-finding by Courts is practically a norm, and as the Supreme Court’s orders confirm, it is still true today. Unfortunately, despite the normalising of this practice, there has been no formalising of the process that governs how the Supreme Court chooses to exercise its discretion, rendering it subject to the vagaries of an individual judge’s idea of justice.

There was a time when the Supreme Court was lauded for its activism when the other branches of government failed. The historic move by sitting Justices to physically proceed to inspect prison conditions in Delhi, or to go and inspect the working conditions of bonded labourers, were the foundations upon which a people based their faith in the Court and relied on it to do justice rather than merely apply the law. At a time where people’s faith in the judiciary is at a trough, and there has been vocal support for executive killings of suspects owing to frustration with judicial delays, the judges would do well to bear in mind that all their choices convey a message. Judicial intervention cannot come to resemble the executive arbitrariness it was designed to protect against.

The 16th September Order and the Supreme Court of Convenience (or why separation of powers is like love)

Until the 16th of September, 2019, we believed that there were some fundamental principles that underlay our constitutional system. These principles were as fundamental as breath, and as natural. We took them for granted. For example:

  1. Fundamental rights cannot be infringed in the absence of a law (Kharak Singh v State of UP).
  2. If there exists a law, that law must be promulgated publicly, so that citizens may know what it says, and know the basis on which fundamental rights are being restricted. Secret laws are an anathema to the very concept of the rule of law (Harla v State of Rajasthan*).
  3. If that law is challenged in a court of law, then it is that court’s constitutional duty to decide whether (a) fundamental rights have been infringed, and (b) whether that infringement is justifiable under the Constitution (do I really need to give you a citation here?).
  4. After the petitioner has discharged her initial burden of showing a prima facie infringement of her rights, the burden shifts to the State to justify that infringement (see point 3).
  5. When assessing the infringement of rights under Articles 19 and 21, the court is not expected to vacate the field and enable executive supremacy, as the Emergency-era judgement in ADM Jabalpur v Shivakant Shukla has been buried “ten fathom deep with no chance of resurrection.” (Puttaswamy (I) v Union of India).
  6. Instead, when examining the infringement of rights under Article 19 (freedom of speech, association etc.) or 21 (life and personal liberty), the court will apply the proportionality standards. The proportionality standard requires a showing that the infringing measures were necessary (i.e., there were no reasonable available alternatives) (Puttaswamy (II) v Union of India).
  7. The right to freedom of expression under Article 19(1)(a) can be restricted only on the eight sub-grounds mentioned under Article 19(2). The Court cannot add additional grounds through judicial fiat (Sakal Papers v Union of India).
  8. The Court must give reasons for its judgement (see point 3).

In its order dated 16.9.2019, in Anuradha Bhasin’s Case, the three-judge bench of the Supreme Court, led by the Chief Justice, has taken each of these principles to the shredder. In doing so, it has fashioned new constitutional “law” that resembles a directive from the Home Ministry more than it does a reasoned judgement from a constitutional court. The petition involved a challenge to the communications lockdown that has been imposed in the State of Jammu and Kashmir since August 5 (the extent of the lockdown is disputed). According to the eight principles stated above, the task of the Court was simple: it had to (a) examine the order under which the lockdown was imposed (did it flow from Section 144 of the CrPC, for example, or from the Telecommunication Suspension Rules of 2018)?); (b) examine the grounds of the lockdown, and assess whether a state-wide suspension of communications infrastructure met the test of proportionality, and (c) provide a reasoned judgement.

In other words, the Court had to hear the case and decide it.

What did the Court do? After footballing the hearing from one date to another – thus enabling a continuing violation of fundamental rights without a decision on its legality – on the 16th of September, it passed a two-paragraph order. After stating that the matter will next be listed on September 30, the relevant portion of the order reads:

The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.

Let us examine this paragraph. The first thing to note is that the order authorising the communications shutdown has still not been made public, after more than forty days. It stands to reason that if the government (either the central government or the state government) has passed this order without publicly promulgating it, then the responsibility lies upon the government to produce it before the court, so that adjudication may take place. In exempting the government from this most basic principles of the rule of law and natural justice, the court’s order violates principles (1) and (2) mentioned above.

Next, the Court has returned no finding on the constitutional validity of the communications shutdown. It has therefore violated principle (3). It has not recorded any justification from the government in the order, or examined its validity. It has therefore violated principle (4). And by choosing to include an exhortation to the government to restore normalcy by making “all endeavours” keeping in mind the “national interest and internal security”, an exhortation without any binding force, and subject to what the government believes are the requirements of “national interest” and “internal security”, the Court has taken us straight back to 1976 and ADM Jabalpur, violating principle (5). Ten fathoms deep, apparently, is not deep enough, because nothing of ADM Jabalpur doth fade; it only suffers a sea change, into something rich and strange (ding dong bell!).

Further, the Court has engaged in no proportionality analysis. It has not examined whether a communications lockdown of an entire state is a proportionate response to what the External Affairs Minister referred to as the goal of stopping terrorists from communicating with each other. It has not even asked the State to show that other alternatives were contemplated and found wanting (if the Court was concerned about national security implications, it could even have asked for the evidence in its favourite manner, i.e., in a sealed cover). So perhaps the judgements that have actually been buried ten fathom deep – to resurrect whenever convenient – are Puttaswamy I and II.

“National interest” and “internal security” are not grounds under Article 19(2). By inventing new grounds to justify the restriction of the fundamental right to freedom of speech and expression, the Court has violated principle (6). Words matter, especially when they are being used to justify a clampdown on rights.

And lastly, no reasons have been provided in this order. This is why I observed, at the beginning of this post, that this “order” resembles more a directive from the Home Ministry, rather than a reasoned opinion from a constitutional court: not only does it provide no reasons, but it is so vague and so broadly worded, that is has practically no impact. What does “all endeavours” means? The government will decide. What does “national interest” require? The government will decide. To what extent does “internal security” require clampdown on rights? The government will decide. In the ADM Jabalpur, the Supreme Court had the minimum courtesy of telling citizens that during the Emergency, fundamental rights stood suspended – and it provided some reasons for that conclusion. Here, by framing an order for “restoring normalcy subject to whatever the government thinks is fit”, the Court has effectively done exactly the same thing, without extending that courtesy.

The order of 16.9.2019, therefore, is not recognisable under any theory of constitutional adjudication, and the bench delivering is not recognisable as what we commonly understand as a “constitutional court.” What it resembles more is a branch of the executive, enabling and facilitating the executive, instead of checking and balancing it, and reviewing its actions for compliance with fundamental rights.

And this has been a long time coming. Throughout the 1980s and the 1990s, in PIL litigation, the Court emphasised that it was not adversarial litigation, that normal standards of evidence and fact-finding were dispensable, and that it was effectively acting in partnership with the government to achieve national goals. It may have been possible to predict that if the court began to fashion itself as a partner of the government, its role as an oversight body would be severely compromised. But legal academics of the time did not mind; indeed, the foremost academic of these times, Professor Upendra Baxi, referred to concepts such as the separation of powers as “Anglo-Saxon” and outmoded, and indicated that they ought to be jettisoned as the Court became the “last refuge of the oppressed and the bewildered.”

But perhaps, all along, Anglo-Saxon or not, separation of powers has been like love: you only realise what you had when it is lost.

Beyond any chance of “resurrection.”


*I thank Malavika Prasad for bringing this case to my attention.

An Analysis of the Supreme Court’s Order in “In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary”

Almost exactly one year ago, in the Judge Loya Case, the Supreme Court laid down the legal principles to determine when requests for court-sanctioned investigations into serious wrong-doing would or would not be granted. Recall that in that case, the Supreme Court took an interventionist approach: it did not merely assess whether the evidence had met a prima facie threshold of credibility, but rather, it went deeper, assessing the quality of the evidence, and subjecting it to detailed scrutiny on the touchstones of both internal consistency, and external plausibility. It was an approach that I strongly disagreed with the time (for reasons detailed in the linked post), but whether right or wrong, that was the position the Court took.

It is in this context that we must analyse today’s order mandating an investigation into “bench fixing” at the Supreme Court, to be probed by Retd. Justice A.K. Patnaik, with the assistance of the CBI, the Intelligence Bureau, and the Police (recall that these proceedings arose out of sexual harassment allegations levelled against the Chief Justice). Has the three-judge bench of the Court followed the approach in the Loya Case? As the order comes on the back of three affidavits filed by Advocate Utsav Bains, it is the contents of these affidavits that must be studied in some detail.

Analysis

[Regrettably, no analysis can be conducted of the order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as all the affidavits have been placed before the Supreme Court in sealed covers.]

Conclusion

[Regrettably, no conclusion can be drawn about the Court’s order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as no reasons are available from which to draw conclusions.]


[This post will be updated if and when the sealed covers are unsealed, and sunlight allowed into the corridors of the Supreme Court again. However, as Justice Patnaik has been asked to submit his report in a sealed cover, the prognosis is not optimistic.]

Guest Post: Hacking the Supreme Court in the Age of AI

(This is a guest post by Anand Venkatanarayanan).

Introduction

How do you bring down a democracy? In their seminal paper, Bruce Schneier and Henry Farrell argue that democracy is a political information system, which has the following characteristics.

  • Common knowledge – the consensus beliefs that hold systems together.
  • Contested knowledge – the knowledge that is contestable, where people may disagree.

They argue quite convincingly through the example of Russian election meddling in the US elections, that democratic systems have an inherent vulnerability that can be exploited to bring it down: this vulnerability comes into play when common knowledge becomes contested knowledge. For example, the disinformation campaign launched by the Russians included undermining knowledge assumptions about how voting works, spreading distrust about the candidates and also the political system in general, through a variety of other means.

This post builds on the above paper and further argues that dispensation of justice is also an information system in a democracy, and has the same characteristics. For instance, “settled law” can be viewed as common knowledge, while different interpretations of law by different benches of the Supreme Court of India (due to its polyvocal nature) can be regarded as contested knowledge.

When viewed through this lens, one way in which the Supreme Court could be brought down is by turning common knowledge into contested knowledge. For instance, a party that has lost a case in the court can ascribe extraneous motives to the judge who gave the judgement, and attempt to turn common knowledge (Court orders are binding) into contested knowledge (they are not binding and can be flouted because they are based on extra-legal factors).

While Courts have evolved contempt jurisdiction to handle external attempts to change common knowledge into contested knowledge, this post argues that the Supreme Court has become institutionally blind to how i’s recent judgements, in attempting to deliver substantive justice by disregarding procedure, are turning common knowledge (settled law) into contested knowledge, and thereby undermining public trust on it.

Procedure, Proof and Innovation

It is often said by Karl Popper that Science never proves, but only disproves. At the heart of his assertions is the simple observation that “criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”. The difference between science and pseudo-science is that pseudo-science does not offer any testable experiments (natural or otherwise) that can disprove the hypothesis.

Testability by others, and not just by the claimants, hence is at the heart of scientific inquiry. For instance, while someone can make a claim that peacocks reproduce by crying, by virtue of their position and title (as a judge), it is deemed to be absurd because contrary evidence has been recorded by eyewitnesses and others for a very long time.

How does testability itself works in the scientific world? It is defined as a process that must be followed to ascertain the validity of the claims. This includes formal proofs, experimental observations, peer review through publishing in journals, feedback, revision and finally acceptance or rejection.

Thus process, procedure and innovation are deeply interconnected in furthering scientific knowledge. There are well known cases such as fraudulent stem cell research where all of this failed, but that was not because of lack of application of the due process – it was in spite of it. Thus, failures in applying due process are very rare and practically non-existent – and the necessity of due process itself gets strengthened through exceptions such as the fraudulent stem cell research case.

Scientific due process is hence an information system, which everyone agrees is essential (Common knowledge) to mediate substantive disputes (contested knowledge). Hence innovation (change) in due process, while permissible and welcome, is not arbitrary and accepted only when it aids on mediating disputes and in furthering scientific knowledge.

Evidence Act and other norms

In the legal system, the Evidence Act of 1872 can be viewed as the equivalent of scientific due process, since it provides a legally sanctioned framework, which covers in detail how to establish facts within the context of a legal dispute, and also issues of proof generation, and scrutinizing those proofs via cross-examination.

The Indian Evidence Act embodies the adversarial system of justice, where parties represent their case before judges, who attempt to determine the truth and pass judgment accordingly. In this system, the Courts are expected to follow due process (as set out in laws such as the Evidence Act) and other norms to decide the ratio decidendi of a particular case. This, in turn, implies that (subject to their own interpretation, of course) the rules set out under the Evidence Act and other norms can be thought of as “Common Knowledge”, which used to mediate substantive disputes (Contested knowledge). Innovation in common knowledge (i.e., modifying or bypassing due process) must be accepted only when it aids in delivering justice.

However, if common knowledge (due process and norms) can be converted into contested knowledge (due process and norms are not important and hence can be discretionary), it introduces an “attack surface” on the justice system itself, which is not patchable (in software terms, not patchable means that it can’t be fixed). What would be the implication if this attack succeeds?

The Salem witch trials offers us an example of this played out in medieval times: in these trials, “tribunals” admitted spectral evidence based on dreams and visions. Leaving aside the problematic outcomes of the witch trials, they resulted in results void of any reason and reflected the bias and prejudices of the population as well as the judge.

Modern-day effects are very similar, and a critical analysis of CJI Dipak Misra’s judgements pointed out how outcomes void of reason have become the norm. Sealed covers and power point “evidence” are the modern day variants of medieval spectral evidence. And whether it the non-existent CAG report in the Rafale judgement or the dodging of facts and inverting reality and claiming that something that was argued in open Court was never actually argued in the Aadhaar judgment, jettisoning reason has serious consequences and makes judgements unintelligible.

If reason and norms are abandoned, what replaces them? Both the Rafale judgement and the Aadhaar judgement show that it is replaced by excessive faith in the government of the day, and statements by government functionaries have higher evidentiary value, even when they are unsigned, not placed on affidavit and demonstrably false, when put under scrutiny.

Attack surfaces on the Supreme Court

The structural faults elaborated above exposes the Supreme Court to new attack vectors, which can be pulled off by actors in the age of Big data and Artificial intelligence (AI). State governments are turning towards AI systems for crime detection and even the court seems to believe that it can be used for medical education reform. Note that faith in technological regimes is not new, but even the creators of AI are not sure what they have built and how they work – in contrast to their employers, who believe that we can have, not just accurate AI but trusted AI as well. But if they manage to convince the executive and the government of the day to publicly pronounce their faith in new technological regimes, success is guaranteed against any litigation, since the court places excessive faith in the statements of the government and it’s functionaries. For example, as the creator of Aadhaar had so convincingly demonstrated, all that was required was to convince three judges that mattered, and Court’s belief in the government’s statements overrode reason, logic and other norms, including open contempt towards it’s interim orders.

This post predicts that this “trust us at the cost of established due process norms to establish contested knowledge” would be the new normal in how technology projects would be rolled out in the future, and litigation by citizens against those projects will always fail, unless the court reverses course.

Conclusion

This post made three claims based on the paper by Bruce Schneier and Henry Farrell

  1. Justice is an information system in a democracy and hence has the same vulnerabilities: common knowledge attacks are deadly to its legitimacy.
  2. The Supreme Court of India, in its quest to deliver substantive justice, has often ignored laws and norms which constitute common knowledge, and has hence unknowingly participated in an insider attack (in information security parlance) that has the potential to erode the court’s legitimacy in the public eye.
  3. The vulnerability caused by this blindness will be ruthlessly exploited by marketers of technology projects which will use Big data and AI.

It is entirely possible for others to disagree with the above claims, but the claims are at least testable in the Popperian sense; and thinking about justice as an information system that has unique vulnerabilities might bring to the fore new perspectives about its relationship to security.

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

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

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

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

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

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

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

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

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

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

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

What is the Role of a Judge in a Polyvocal Court?

For a while now, commentators have remarked about the “polyvocal” character of the Indian Supreme Court. The Court comprises of 28 judges who sit, for the most part, in benches of two (or at most, three). For this reason, the Supreme Court – it is argued – is better thought of not as a single “Court”, but as many different courts of equal authority, who may often speak with different – or even opposed – voices on the same issue (consider, for instance, that time in the late 2000s, when Justices Sinha and Pasayat were handing down what were virtually duelling judgments on the death penalty). This, in turn, leads to patchwork jurisprudence, which is internally inconsistent, and invariably influenced by judicial personalities to a degree that is probably far greater than in other jurisdictions, where judges sit en banc, or at least, in a substantially larger number.

However, for all the problems of inconsistency (and even incoherence), the fact remains that any judgment handed down by a judge carries the authority of the Supreme Court of India. That judgment speaks for the Court, and by extension, for the other twenty-six judges not party to the judgment.

Keeping this in mind, I want to focus on an issue that is separate from the problems of institutional incoherence and contradictory jurisprudence, but which is becoming increasingly pressing. The polyvocal character of the Supreme Court would, under normal circumstances, be constrained by two centripetal forces: a respect for precedent – including judgments delivered by Constitution Benches from a time when two-judge benches were the exception rather than the norm – and the limited scope of the Court’s jurisdiction (i.e., the Court can only rule upon issues that are brought before it, and which concern questions of law). Institutional inconsistency, therefore, would remain a bounded inconsistency, both in terms of its content, and in terms of its subject matter.

In my view, at this point of time, both these centripetal forces (after having been consistently undermined for the last three decades, both in the Court and in the academy) are virtually non-existent. Constitution Bench precedents are regularly ignored, or distinguished on dubious bases, and the scope of PIL has now become so vast that the idea of a limit on the Court’s jurisdiction is almost laughable. This, effectively, concentrates great power in the hands of individual judges to shape or mould areas of law in a manner that is simply not contemplated in a functioning legal system.

To understand why this is a problem in the specific context of a polyvocal court, let us consider what Justice Dipak Misra (the second-most senior judge of the Court, and scheduled to become Chief Justice of India this August) has done to Article 19(1)(a) of the Constitution. In Devidas Tuljapurkar, he ignored fifty years of precedent and invented out of thin air a new standard of obscenity applicable only to “historically respectable personalities.” In Subramanian Swamy, he upheld the constitutionality of criminal defamation as it stood, ignored the conflict that the ruling set up with the coordinate bench judgment in R. Rajagopal vs State of TNconcerning the different standards in civil and criminal defamation law, and invented a mythical doctrine of “constitutional fraternity” to justify this. In his interim orders in the national anthem case, he has ignored the binding judgments of nine judges in Naresh Mirajkar and five judges in Rupa Ashok Hurra, as well as the basics of separation of powers, and has made the playing of the national anthem compulsory in cinemas before every film. In his interim orders in Sabu Mathew George, he has passed interim orders on the “auto-blocking” of keywords for sex determination, supposedly justified under the PCPNDT Act, but without any consideration of the 19(1)(a) issues at play (including those of intermediary liability). And in the Azam Khan case, which he is presently hearing, he has framed issues on whether political figures can be restrained from commenting on rape allegations, on the basis of another invented doctrine labeled “constitutional compassion” (and also goes against a line of judgments starting with Sakal Papers and ending with Shreya Singhal, which have made it clear that freedom of speech can be restricted only on the grounds listed in Article 19(2)). Out of the five cases mentioned above, four have come to the Court as PILs.

These five cases make it clear that Justice Dipak Misra does not consider the freedom of speech to be of much value. That is his personal prerogative; however, when in case after case, brought to the Court through flimsy PILs, he passes judgments that place vast swathes of speech off limits, through the invention of new doctrines completely untethered from constitutional text and at odds with clear precedent, it becomes a serious problem.

Now, in ordinary circumstances, to implement his views on free speech (or the lack thereof), Justice Misra would have had to convince a bench of five or seven judges to agree with him. However, as the senior judge in a two judge bench, he only has to convince one judge – and anyone who has spent any time in the Supreme Court knows that puisne judges rarely assert themselves against senior judges (there are exceptions, of course).

When, therefore, you combine the following features: decisions being rendered effectively by one individual (who is assigned these cases based on roster determinations by another individual, the Chief Justice), the declining importance of precedent, the evisceration of subject matter and jurisdictional limits, the fact that Article 145(3) (which requires that issues of substantial constitutional importance be heard by a bench of at least five judges) is more or less a dead letter (because the decision to refer is made by the judge hearing the case in the first place), and the predominance of PIL (which, as Anuj Bhuwania points out in his book, often amounts to the Court choosing a petitioner as much as it does a petitioner choosing the Court), you get the following result: the power to shape crucial areas of law, including fundamental rights, which impact peoples’ lives, rests in the hands of single individuals; and every institutional feature that might place a check upon those individuals’ predilections becoming the law of the land has been rendered virtually non-existent. The most basic and most important feature about a constitutional court – that its decisions ought to be rendered through a collegial process, involving give and take and compromise between judges of differing views – has completely gone.

This takes us to a crucial question, which arises simply because of what the Court has become: what about the responsibility of the other twenty-six judges who sit on the Supreme Court? For example, I suspect – and indeed, I would hope – that many of them have strongly different views on the role of free speech in a constitutional democracy, or at the very least, that they disapprove of the use of PILs to advance an anti-free speech jurisprudence that runs counter to precedent, text, and the separation of powers. In such a situation, it seems particularly problematic that a single individual (by virtue of the CJI-determined roster – and the concentration of power in the hands of the CJI will be the subject of a further post) gets to speak for the Court on issues of such great constitutional importance.

The Court as a whole, therefore, has the responsibility of evolving a mechanism that prevents this. Perhaps issues involving any article of the Constitution must compulsorily be sent to a five-judge bench, regardless of the referring judge’s opinion. Perhaps in issues involving constitutional articles, judges not on the two-judge bench should be able to write dissenting notes on the exposition of law involved – a radical suggestion, but this is a Court operating in an entirely unprecedented context. Whatever the solution, however, it is important to stress that the other twenty-six judges have to bear a substantial share of the responsibility: we cannot employ the fiction of “many different Supreme Courts” to absolve judges who, as part of the institution, acquiesce to judicial conduct and jurisprudence that they find contrary to the Constitution. Inaction must imply agreement.

I do not suggest that either of the two potential solutions outlined above will work; at the very least, though, this is a conversation that we must now begin to have.

Book Review: “The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India”

There is a well-known narrative that explains the trajectory of the Supreme Court in the last quarter of the 20th century. Habeas Corpus (1976), with its abject capitulation to the Executive, was the low point – four judges, either desirous of currying political favour, or fearful of the consequences (or both), failed in their fundamental duty to protect the civil liberties of India’s citizens. The crisis of legitimacy that this generated drove the Court to look to another forum to re-establish itself. That forum became the PIL, a substantive and procedural revolution: loosening the rules of standing, combining it with an expansive interpretation of Article 21, and bringing in the Directive Principles into constitutional adjudication, the Court spent the 1980s solicitously tending to the social and economic needs of the most marginalized sections of society. But then, with the 1991 economic turn to neo-liberalism, there was a parallel change in judicial values. Now the PIL became the instrument of choice for a newly-assertive, rising middle class, and it was the interests of that class – prefaced with grand perorations of economic development and progress – that the Supreme Court found itself giving most attention to – and that, at the expense of the most marginalized. If Bandhua Mukti Morchawith its powerful and moving use of the PIL to free bonded labourers living in conditions of abject depredation, characterized the former phase – then Almitra Patel, contemptuously equating encroachers on public land (normally desperately poor people with nowhere else to go) with “pickpockets” – marked the Brave New Supreme Court: neoliberal and corporatist.

This narrative fits in with two theories. One is the theory of institutional vacuum, which posits that if one wing of the State retreats from its proper sphere of functioning, its place will be taken by another. The other is Robert Dahl’s famous argument to the effect that the judiciary is not, and has never been, a “counter-majoritarian institution”: on the contrary, much like the legislature, the judiciary also comes to reflect majoritarian values. Legislature and judiciary are not so much in opposition, then, as much as sometimes separated by a lag: more often than not, they will be on the same side of a concrete issue.

On these accounts, it was the legislature’s continuing, supine inaction that allowed the Court to step in and consolidate itself in performing functions that, under classical separation of powers theory, are paradigmatically within the institutional competence of an elected body. And once established, it is hardly surprising that the Court’s actions reflected the same neoliberal values that animated the legislature through the 1990s, and beyond.

Of course, this is much too simple to be the whole story. The structure of the Court – its size, that it sits in panels, and its (at best) loose adherence to precedent – makes it nigh impossible to consider it as a social actor qua Court. And more broadly, neoliberalism itself has had a rocky road in India, coming in by fits, implemented by starts, and always faced with popular resistance.  A full account of the Court’s career through the 90s, then, must be far more nuanced than the simple narrative we have discussed above.

The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India is a collection of eight essays interrogating various aspects of the simple narrative. In Embedded Judiciary, Aditya Nigam compares specific cases from the two eras: Olga Tellis, for example, which famously read in the “right to livelihood” into Article 21, and allowed for evictions of pavement dwellers only if alternative accommodation could be found for them – gave way, fifteen years later, to the notorious Almitra Patel, with its pickpocket analogy. A similar transformation is witnessed in labour-rights cases; essentially, the judiciary converts rights-bearing citizens to rightless subjects, whom the government can treat as it wills, without constitutional impediment, in the quest for economic growth.

Usha Ramanathan continues the theme in In the Name of the People. Both writers stress that the transformation in the Court’s jurisprudence has come about under a broad rubric of continuity. The Supreme Court has never said that it has changed course, or changed values, but it has done so nonetheless. Ramanathan locates the change in Article 21: in PIL 1.0, “life” stood for “dignity, health, livelihood and shelter”; in PIL 2.0, under the imperatives of “structural adjustment, liberalization, privatization and globalization”, it came to stand for “growth and development”, which was often at odds with the earlier set of values. In order to be able to rule on such issues, which seem prima facie the domain of the legislature, the Court undertook to aggrandize its own power, doing so through the Sheela Barse case, where it struck of the petitioner from a PIL and assumed control over the proceedings, and in the Nadiad and Bhopal Review cases, where it created out of Article 142’s (circumscribed) “complete justice power” a carte blanche for far-reaching policy-making judicial action.

Nivedia Menon’s Environment and the Will to Rule completes the triumvirate. Through cases such as Almitra Patel, Godavarman, Narmada Bachao Andolan, and so on, Menon identifies a clear hierarchy in the neoliberal Court’s scheme of priorities: development > environment > people. She argues that when it comes to a confrontation between extractive industries and indigenous people’s rights (Vedanta, for instance), the Court embarks upon a utilitarian calculation, pitting the needs of development against peoples’ land and forest rights, a calculation that comes out in favour of the former. We may make an additional observation here: whatever you may think of the outcome, the very fact that the Court is making these utilitarian calculations is a problem in and of itself, because this is exactly what the legislature is supposed to do. Recall Dworkin’s famous distinction between rights and goals:  a polity’s goals are for the legislature to decide, as the elected body and responsive to the people, whereas the Court’s task is to ensure that in pursuit of these goals, the legislature does not infringe citizens’ rights. The moment the Court gets into policy-balancing acts, rights-talk no longer makes sense. And not only is the Court ill-suited – institutionally – for making these judgments, but – invoking Dahl again – it means that marginalized communities are going to lose twice over: first, in the legislature, where they don’t have adequate access or influence; and secondly, in the judicial process, where the Court, instead of vindicating their rights, puts them in the balancing scale, and comes to the same judgment as the majoritarian organ. This demonstrates starkly the grave peril of the Court’s entry into the legislative arena. Once it starts thinking like a legislature, the Court loses sight of its primary, exclusive and most crucial task: to protect the rights of precisely those individual and groups who don’t have recourse with the legislature.

Varun Gauri, in Fundamental Rights and Public Interest Litigation in India, puts an empirical spin on the above arguments, demonstrating through statistics the relationship between the social class of PIL petitioners and their likelihood of winning in Court, that there has been a reversal of sorts between the 80s and the 90s, in terms of advantaged and marginalized communities. At the same time, however, Madhav Khosla and Sudhir Krishnaswamy, in Social Justice and the Supreme Court, strike a cautionary note: symbolic cases such as Bandhua Mukti Morcha and Almitra Patel do not paint an accurate picture, they argue. The basic question is whether a claim framed in the 1990s would have a less chance of succeeding than if it had been framed in the 80s. Anecdotal evidence cannot tell us that, and nor is there reliable evidence to suggest that that is the case. Nonetheless, in Swallowing a Bitter PIL, Arun Thiruvengadam cleaves to the accepted model, that locates a transformation in the Court’s jurisprudence – both in the type of constituencies it favours as the beneficiaries of the PIL, and in the way it structures constitutional priorities. The thrust of Thiruvengadam’s piece, however, is to advocate for continued engagement with the judicial process, notwithstanding the number of setbacks that have begun to pile up over recent years.

The last two essays examine two specific – and hugely important – areas. In A Meandering Jurisprudence of the Court, Philippe Cullett examines the approach of the Court to water laws, and finds it to be – unsurprisingly – wildly inconsistent. While the Supreme Court has, from time to time, held the “right to water” to fall within Article 21, and held water to be in “public trust”, it has not shrunk from allowing alienation of that trust in development cases. And while the Court has continued to develop its Article 21 jurisprudence with respect to water, cases such as Narmada Bachao Andolan and Wazirpur Bartan Nirmata Sangh demonstrate that when it is a question of displacement in the name of development, the Court once again enters into a utilitarian thicket, and emerges from it bearing a defeat for the oustees.

Perhaps fittingly, we end with democracy. In The Judicial Nineties, Ujjwal Kumar Singh compares the Court’s active, interventionist stance in the right-to-know election cases with its hands-off, deferential, near-obsequious approach in terrorism and national security cases. In the PUDR-PUCL series of cases, the Court held that under Article 19(1)(a), a voter had the right to know the antecedents of candidates, including assets and criminal records, and that the Election Commission had the power to enforce this; when the legislature tried to amend the RP Act to take the issue out of the purview of the EC, the Court struck it down on constitutional grounds. On the other hand, when it came to the constitutionality of the AFSPA, POTA, TADA, MCOCA and the rest of the national security legislation, the Court allowed the legislature to eviscerate the Constitution in the name of fighting terrorism, deferring not just to the legislature’s estimate of the threat, but also the extent to which it deemed fit to abrogate civil liberties to meet the alleged threat – thus giving an eloquent proof of that old Latin chestnut, inter arma enim silent leges. There is thus a clear tension between the Court’s grand perorations upholding procedural democracy in the right-to-vote cases, while allowing the executive to trample all over fundamental rights in national security cases.

Naturally, these sketchy summaries do not do justice to the eight essays. They are worth engaging with, and together, they form a coherent and fairly comprehensive body of work examining a crucial period in the Court’s history We may add to the range that they cover, the additional point of the Court’s pressing into service the Directive Principles of State Policy into service post-Habeas Corpus. Previously, the DPSPs had played little to no role in constitutional interpretation. With the advent of the PIL, they became formidable interpretive tools to flesh out the contours of Article 21, and to re-imagine concepts of equality, reservations, reasonable restrictions upon trade, etc. We may also add the Court’s invention of the continuing mandamus, particularly in the PUCL right to food and the Godavarman cases, that allowed it to play a near-executive role in not only framing policy, but implementing it as well.

Judicial Nineties is thus an important book, in order to understand how the Supreme Court has come to stand where it does today; but also, perhaps, to understand its trajectory in the short-term future.

Mayur Suresh and Siddharth Narrain (eds)., The Shifting Scales of Justice: The Supreme Court and Neo-liberal India (Orient Black Swan 2014); Rs. 650. Available here