Are Fundamental Rights Really Part of the Basic Structure of the Constitution ? --

New Insights Gleaned from the Book
‘The Kesavananda Bharati Case’ by T.R. Andhyarujina

(By Srinath Girish, Advocate, Calicut)

When I saw this book for the first time, I had a vague memory of having read about this case long ago in the Constitutional Law text at Law College. Something to do with how the Supreme Court, by a majority decision, held that Parliament cannot amend the Constitution in such a manner as to alter its basic structure.

There were several other cases in that text in the same chapter - Golak Nath, Minerva Mills.The gist of all such cases to be memorised, reproduced on the answer sheet for the examination and promptly shelved in the recesses of memory, in all probability never to be recalled again.

I am sure the situation is similar with all other lawyers who concentrated on civil, criminal and other run-of-the-mill matters after graduation and never appeared in a Constitutional matter in their careers.

Years later, having convinced myself that I had surely acquired a bit more legal acumen than in the Law College years, I picked up this book by Senior Counsel T.R. Andhyarujina, who passed away recently. Frankly, it was the book description that made me curious about it. It says that the book is ‘The Untold Story of Struggle for Supremacy by Supreme Court and Parliament’.

So I read it - and gained a totally different insight into the working of our democratic institutions, the equations between and within the Bench and the Bar and the process by which a nation’s future can be shaped by the decision in a single momentous case.

The author appeared along with the legendary H.M.Seervai on the side of the Government and thus had a ringside view of events. In the very beginning of the book, he regrets the fact that ‘India’s greatest Constitutional case was regrettably heard and decided in a manner most unconducive to a detached judicial decision’.

All throughout, the case was marred by political overtones. The balance of power between the pillars of democracy was threatened, with the Government playing all its aces to obtain a favourable verdict granting it absolute power to amend the Constitution, the primary target being the Fundamental Rights guaranteed by it. In the Golak Nath case, wherein the Supreme Court had held by the narrowest of majorities (6 to 5) that Paliament has no power to amend the Constitution in any way affecting Fundamental Rights, the Government had lost. Now it was banking on the Kesavananda Bharati case, to be heard by a 13 Member Bench, principally to consider the correctness of the decision in Golak Nath.

His Holiness Kesavananda Bharati Sripadagaveru was only a name lender. In the proceedings, he did nothing else but lend his name, by virtue of the petition he filed challenging the placing of the Kerala Land Reforms Act and the amendments thereto in the 9th Schedule of the Constitution.

The Congress party had obtained a massive majority in Parliament and was confident of the electorate’s backing to restore the supremacy of Parliament’s power to amend the Constitution in any manner it pleased. The Bench was headed by Chief Justice Sikri, known to be antagonistic to the Government’s stand. Nani Palkhivala, the versatile genius, spearheaded the challenge against the Government.

What better setting for a mega judicial thriller?

One has read in novels of the Perry Mason and the John Grisham variety, of lawyers trying to pack the jury with members who they feel would serve their clients’ cause. From this book, it appears that there was a deliberate attempt by the Government to pack the Bench with Judges who were likely to favour it.

There were tensions inter sethe Learned Judges on the Bench, ego clashes between the Attorney General Niran De and H.M.Seervai, both appearing for the Government and between Palkhivala and his opponents. Several sparring bouts ensued between the Bench and the Bar, to the extent that even a walkout by counsel was threatened. The Chief Justice was due to retire and wanted a judgment before he did. A Judge fell ill thrice during the proceedings, in the midst of speculation as to whether such illness was feigned or not, delaying the decision further. The hearing consumed 67 days, Palkhivala grumbling that he was given only 31 days for his submissions while the other side got 34.

On the 24th of April, 1973, a day prior to the Chief Justice’s retirement, eleven separatejudgments were read out in Court. 6 Judges held that the amending power was limited by inherent and implied limitation in the Constitution including Fundamental rights, while 6 others held that there were no limitations on the power of Parliament to amend the Constitution. The Judgment that clinched the verdict against the Government was that of Justice H.R.Khanna.

But as the author points out, the reasons stated by Justice Khanna differed completely from those stated by the 6 Judges who held against the Government. While the others held that the Fundamental Rights were inviolable, Justice Khanna relied more on the interpretation of the word ‘amendment’ and opined that amendment of the Constitution cannot have the effect of destroying or abrogating its basic structure or framework. The author points out that at no point did Justice Khanna uphold the inviolable nature of Fundamental Rights, in fact he rejected such a theory.

So could it be really said that the acclaimed View of the Majority actually represented the view of the majority of the judges in the case? The View of the Majority was in fact only a summarisation of the judgements on a paper prepared and produced by the Chief Justice on the day of judgment and passed along for the signatures of the other Judges. What is more, it was signed by only 9 of them. Four Judges merely passed on the paper to their neighbouring colleague without signing it. However, all Judges signed the Common Order of the Court remitting the cases to the Constitution Bench. There was no discussion by the Judges as to what the real view of the majority was.

The author emphatically states that the reports of AIR and SCC about the case are wrong and mixed up. No ratio of the Kesavananda Bharaticase can be derived from the so-called ‘View of the Majority’. The dictum that ‘Parliament cannot amend the basic structure or framework of the Constitution’ was the conclusion of only a single Judge and not that of a majority of them. In the words of Palkhivala “Thus by a strange quirk of fate, the judgement of Justice Khanna with whom none of the other Judges agreed has become the law of the land.”

For a case known widely as the ‘Fundamental Rights Case’, it is amazing that there is no conclusive finding that Fundamental Rights are to be considered a part of the basic structure of the Constitution. It took a ‘clarification’ by Justice H.R. Khanna two and a half years later in the Indira Gandhi case to actually bring them under the said purview.

The remainder of the book narrates the aftermath of the Judgment, the supersession by the Government of Senior Judges to pave the way for Justice A.N. Ray as the Chief Justice (which later resulted in the Supreme Court taking over the power of appointment of Judges in the Supreme Court Advocates-on-Record Associationcase, an attempt to review the Kesavananda Bharati judgement (which ended in an abrupt dissolution of the Bench by Chief Justice Ray without any apparent reason), further attempts by the Government to overcome the judgment, which were thwarted by the Judgment in the Minerva Millscase, how the judgment was perceived in other countries and so on.

The opinion of the author is that following the further interpretations of the Basic Structure of the Constitution by the Supreme Court, in the end, there was no clear victory either for the Supreme Court, the Parliament or the Government. Each side triumphed in its own way.

So this is the true story of the case which generations of law students have studied as part of their curriculum and never really analysed. We have always taken it as a given fact that Fundamental Rights are inviolable (except for the one with respect to Property). Reading this book made me understand how narrowly the hallowed Fundamental Rights, that we revere and swear by, almost became irrelevant in this wonderful Nation of ours.

A must-read for anyone who is interested in how Democracy works.

Is India Heading Towards Corporatocracy?

(By Liju V. Stephen, Advocate, Ernakulam)

The Constitution of India envisages a parliamentary democratic form of government, wherein it is the collective will of the people that remain the basic and the essential concept of democracy. But the baffling question in the present scenario is whether the original concept of democracy still exists. The democratic concept of the present day is not the collective will of the people but emerging as the collective will of the Business Corporates. And the social evil emanating from them has far reaching consequences on the democracy of this nation.

The Democratic Process of Election for various reasons and factors has undergone tremendous changes. A situation has arisen that to contest or to secure a winning mandate in the present parliamentary form of elections huge amount of money has to be expended. In the present scenario individuals or political sympathisers are not able to contribute the requisite amount of money for a candidate or a political party for elections. Facts and figures point out that the political parties and candidates are mainly depending on business corporate for requisite election funds. It is common knowledge that it is with and for a price that the Business Corporates contribute for elections and it is further common knowledge that the gratitude shown by an elected representative or an elected government in return, are sacrificing the common wealth of the Nation.

It is worth to note that CHIEF JUSTICE M.C.CHAGLA and JUSTICE DESAI as then BOMBAY HIGH COURT JUDGES (later the JUDGES OF SUPREME COURT OF INDIA) while interpreting the scope of Amendment of Articles of Association of a Company, enabling political contributions under Section 293 of the Companies Act 1956 held in Jayantilal Ranchchchoddas Koticha v. Tata Iron and Steel Co.Ltdreported in 1957 Volume 27  Company Cases 604 (Bombay)  as follows:

“1. It is with considerable uneasiness of mind and sinking feeling in the heart that we approach this appeal and the proposal of the Tata Iron & Steel Co. Ltd. that they should be permitted by an amendment of their memorandum of association to make contributions to political parties. Democracy in this country is nascent and it is necessary that democracy should be looked after, tended and nurtured so that it should rise to its full and proper stature. Therefore, any proposal or suggestion which is likely to strangle that democracy almost in its cradle must be looked at not only with considerable hesitation but with a great deal of suspicion. Now, democracy is a political system which ensures decisions by discussion and debate, but the discussion and debate must be conducted honestly and objectively and the decisions must be arrived at on merits without being influenced or actuated by any extraneous consideration. On first impression it would appear that any attempt on the part of anyone to finance a political party is likely to contaminate the very springs of democracy. Democracy would be vitiated if results were to be arrived at not on their merits but because money played a part in the bringing about of those decisions. The form and trappings of democracy may continue, but the spirit underlying democratic institutions will disappear ……………………..                      ………………………But whatever our view may be as to the rightness or wrongness of what the Tata Iron & Steel Co, proposes to do, however strongly we may feel that the danger of the corrupting influence of money must not be allowed to increase in this country and it must be strongly curbed, we could only be guided sitting in a court of law by legal principles and not by our own views as to politics or morality”.

“18.Before parting with this case we think it is our duty to draw the attention of Parliament to the great danger inherent in in permitting companies to make contributions to the funds of political parties. It is a danger which may grow apace and which may ultimately overwhelm and even throttle democracy in this country. Therefore, it is desirable for Parliament to consider under what circumstances and under what limitations companies should be permitted to make these contributions.........................................................................But having had this case before us and our attention having been drawn to the possible evils attendant upon powers exercised by the companies, we thought it our duty to draw the attention of Parliament to the necessity or remedial measures being immediately undertaken to curb and control this evil.”    

The Judicial prophesy of Justice CHAGLA is coming true in the present day where democracy of our Nation is being throttled by the said menace. The  financial contribution made by   business corporates and other sources are used to influence the voters,  and the  elected legislators and the elected  Government would be  forced to reciprocate the   favours they had received thereby tainting democratic values of our Nation.  It is pertinent to note that JUSTICE CHAGLA had warned the Parliament  through his judgment  at a point of   time when the Companies Act 1956, the Section 293 provided that a company can contribute up to `25,000/- or 5% of the profit of the company whichever is higher.

The Indian Parliament not only had  turned deaf ear to Justice CHAGLE but has by Section 182 of the Companies Act, 2013 enhanced the limit of political contribution of Companies from `25,000/-  to 7.5% of a Company’s Annual Profit. Further by the Finance Act, 2017, Section 182 of the Companies Act, 2013 is further amended and the cap of ceiling is taken off.

An individual out of his personal affection towards a candidate or his allegiance to a political ideology may contribute money for election. But what if a legal entity such as a Public Limited Company, a creature of a Statute, with a definite economic interest makes contribution out of its profit to the political parties is it with an affection or allegiance or is it with any definite economic interest?

It is definite that from a legal point of view and economic point of view one cannot attribute any human affection for the political contributions made by Companies, and it cannot be said that it is the collective interest of shareholders because in law shareholders are different from the legal entity of a company. Hence the only interest a legal entity such as Public Limited Company contributing money for election is with a definite economic interest.  The economic interest that a Company expects from a Political Party in power would either be favourable Government policies, relaxation of norms or terms in the matter of allocation of natural resources or other common wealth of the nation or can be any other act of favouritism. Thus the price that an elected Representative or the Government has to pay in return for such cororate contributions is destroying the very fabric of our Democracy and against the interest of our Nation. Such an act contravenes contravening Article 39(b)(c) “the directive principles of state policy” under the Indian Constitution.

The political parties in India are not constitutional or statutory functionaries, but only enabling bodies under The Representation of the People Act, 1950, for collective representation for contesting for elections and for forming of governments. It is worth to note that a Company contributing money for election to a political party is even given tax concessions under Section 80GGB of the Income Tax Act, 1961. It is ludicrous to note that the said contribution is not for any charitable purposes or a nation building process but only a political contribution to favour a political party or a candidate in the so called process of election.

The elected representatives who are called upon to form the Government, forms Council of Ministers who are the repository of the wealth of the Nation. The Third Schedule of the Constitution of India prescribes the oath to be administered by the person taking charge as the Council Minster of the Union Government or the State Government which states that the Minister shall discharge his duties in accordance with the Constitution, without fear, favour, affection or ill-will”. The oath is not a mere reading of words but it is a constitutional mandate by the supreme law of the nation, which the elected representatives have to literally follow. The moot question here is to what extent the same is possible or whether it is possible at all in the changing scenario.

The Constitution Bench of Supreme Court inP.V.Narasimha Rao v. State (C.B.I.)reported in (1998) 4 SCC 626 held that a Legislative Member would also come within the definition of public servant under the Prevention of Corruption Act. But the irony is that money can be received prior to an election  but not  after being elected. But what if the money to be given subsequently is taken in advance. Since the Prevention of Corruption Act does not define the said act as corruption, the law cannot condemn them, but in reality it can also amount to corruption. In our country the corruption at bureaucratic level can be termed as the secondary level but the primary levels where the seeds of corruption are sown are at the legislative level. Now money is the vital element in politics for securing votes and I suppose none can deny the same. The social evil that emanate from this is that the money received by these sources are used to pollute the democratic process of election.

One of the solution to curb such a social evil will be to direct the State to expend for the election propaganda in a restricted manner so that candidates need not amass any lawful or unlawfull money to meet the election expense. If that be so the legislators can do their duty without any fear, favour or affection, to none other than the Nation and its citizens. It shall also be the duty of the State to publish the credentials of a candidate to the voters prior to the elections, which is definitely a fundamental right of the citizen in a democratic country to know whom to vote. The Legislature and the Judiciary have the duty to see that the Constitutional values of the democratic process of election is not eroded, or else the democracy of  this country would be throttled and such business corporate would be like the next earlier East India Company.

Privacy as a Public Value

(By Thulasi K. Raj, Advocate, High Court of Kerala)

Nine Judges of the Supreme Court of India are deliberating on the status of the constitutional right to privacy and its link with the Aadharscheme. The arguments made and the questions raised will have significant ramifications on our democracy. The Supreme Court proceedings have posed certain academic suspicions, even among legal scholars. For instance, Prashant Reddy seriously argues that the Supreme Court has “divorced” the privacy issue from “the Aadhar challenge.” (Prashant Reddy, The Wire, 20.07.2017). Another surfacing argument is that the Court is embarking on a theoretical debate without assessing the Aadhar scheme with its nitty-gritties. I think both the apprehensions are premature. This is because a conceptual debate on the meaning and nature of the right to privacy is exactly what was lacking in Indian jurisprudence. Moreover, the conventional approach that rights can be violated only by the State or the State organs and not by private individuals also needs to be debunked.

For instance, when you walk down the street and part of your face suffered a bad burn. Do you have a right to privacy that the other people on the street do not see your face? Obviously not. This is because people on the street cannot be reasonably expected to anticipate this and not look at a stranger’s face. Imagine you wear a face veil to conceal the injury. A man walking past, lifts your face veil out of sheer curiosity. The intuitive response is that there has been a violation of the right to privacy.

A good theory of privacy must not conceive this right as merely private without any societal bearing. Privacy has a significant communitarian value that the morally autonomous individuals engage in greater social interaction. Privacy, establishes collective societal development (Regan P., ‘Legislating Privacy’, 1995) and an empowered and inspired society. It seems plausible to argue that without a reasonable promise of privacy, meaningful social relationships and interactions tend to diminish. Privacy is, therefore, also a public value.

Two questions

This brings us to at least two complex questions- questions that will tilt the balance in the Aadhar case in interesting ways - Firstly, is privacy a free standing right, separable from other related rights? And secondly, what does the right to privacy entail? It will be interesting to observe which approach and which conception of the right to privacy will the Supreme Court subscribe. In fact, the court’s adjudication on the Aadhar will and ideally should, depend upon a convincing theory of privacy.

Derivative or Distinctive ?

The content of privacy has been interpreted in varied ways. The strong contenders in this area are the reductionist and distinctiveness views. The former argues that the right to privacy protects no special interest and other rights such as the right to property are sufficient to capture privacy interests. The latter views privacy as protecting distinctive rights and does warrant separate recognition.

The reductionists argue that there is no free standing right to privacy. A strong privacy sceptic, J.J.Thomson argues that privacy is a derivative right and part of cluster of other rights, and “it is possible to explain in the case of each right in the cluster how come we have it without ever once mentioning the right to privacy.”(J.J.Thomson,‘ The Right to Privacy’, 1975) She examines the example of a man who owns a pornographic picture who does not want anyone else to know that he has the picture. She says that if we train our X-ray device on the wall-safe and look in, we would violate his privacy. But she contends that what is violated is his right to property which includes a negative right that others shall not look at it. Hence, she argues that every seemingly privacy violation is in reality a violation of some other right, in this case, a right to property.

But surely this account must be false. The problem with her argument is that a claim to privacy is not dependent upon other rights. Ownership could often be useful, but not absolutely material in making a privacy claim. Ann, a robber certainly has the right against another person installing a camera to glimpse at the stolen articles collected in her house. This right remains irrespective of whether she owns the articles in question or not.  Her right to privacy is therefore, not derivative of her (non-existing) right to property.

Another example could be this: In a public place, be it the street, or the restaurant, I whisper to my friend a secret that could not wait. Another person who uses a listening device to access the information is certainly invading my privacy. But this violation is not caused by factors like ownership or even possession. The intruder has violated my personal space, which is momentarily and spontaneously created. Thomas Scanlonseems to be very persuasive as he contends, “ownership is relevant in determining the boundaries of our zone of privacy, but its relevance is determined by norms whose basis lies in our interest in privacy, not in the notion of ownership.” (Thomas Scanlon, ‘Thomson on Privacy ’, 1975).

One would hope that the Court adopts a non-derivative approach to the right to privacy. If so, the Court will not require the petitioners to show the violation of any other right, such as the right to property. If the derivative line is chosen, the Court will require that something more, in addition to the so-called right to privacy be shown.

Conceptions of privacy

Privacy has been conceived by some as the ‘access account’, the  right to access to an individual. This account states that if you can determine as to who has access to you, then your privacy stays intact. In connection, privacy is viewed as non-interference and the absence of unwarranted intrusion or the “right to be let alone”(Warren and Brandeis, ‘The Right to Privacy’, 1890).

This idea of privacy has been quite easily challenged by what is commonly called the ‘control account’ of privacy. Control theorists demonstrate it through a contemporary example.  Imagine that an unknown individual collects your personal information. Imagine further that she stores this information, but chooses not to use it for the time being. Even though she does not use it, your privacy is violated by the mere fact that you know that somebody possesses your information without your consent, even with the possibility of use at a later point of time.

In the novel 1984, George Orwell creates a fictional society where the thoughts of individuals are monitored by the ‘thought police’ of the State. He says that there was no way of knowing if , at a given point of time, you are monitored by the State or not.  This is why it has been rightly argued by some of the petitioners before the court that mere surveillance or storage of information itself can create a chilling effect on your actions. It will disturb your private space in dangerous ways.

A   balanced access-control theory, which captivates both information and access, does seem appropriate to absorb major privacy infractions. Adam Mooreprovides a satisfactory definition. According to him, “a right to privacy is a right to control access to and uses of —places, bodies, and personal information.”(Adam Moore, ‘Defining Privacy’, 2008).
This seems to address both - collection of information and use of information.

Implications

Aadhar is said to be probably the largest database system in the world of storing biometric information.  The 12-digit Aadhar number creates and facilitates one’s digital identity. According to the government, more than 99% of Indian adults have enrolled in Aadhar. (The Hindu, 27.01.2017). This is crucial while examining the allegations of Aadhar data leakage and the privacy implications associated with it.

Whatever the Supreme Court might decide on the issue, the present case invariably has far reaching implications on India’s constitutional law and politics for the years to come. The court seems to be siding towards a liberal – as opposed to a rigid-approach to constitutional interpretation. For those who are skeptical about this methodology can probably find solace in the words of Ronald Dworkin, an influential legal philosopher of the twentieth century. In the introduction to his book ‘Freedom’s law: The Moral Reading of the American Constitution,’ he says that the “moral reading” is the  ideal way of “reading and enforcing a political constitution.…So when some novel or controversial constitutional issue arises….people who form an opinion must decide how an abstract moral principle is best understood...The moral reading therefore brings political morality into the heart of constitutional law.”

(This article originally appeared inBar & Bench on 31 July 2017).

Judicial Reform As An Imperative*

(By Justice Jasti Chelameswar, Judge, Supreme Court of India)

Dear brother Kurian Joseph, Mr.Kaleeswaram raj, author of the book “Rethinking Judicial Reforms: Reflections on Indian Legal System”, Justice Basant, my one time colleague at the bench, Mr. Raju Ramachandran, senior advocate, ladies and gentlemen,

I am happy to be here this evening for a number of reasons.  A book release function is an event which I always enjoy whether I release or receive the book or simply participate in the programme. I know the author. The book is well written. I am not saying this to please the author.  I have gone through three or four articles of the book. Participating in this event gives me an opportunity to be in a gathering of Keralites, a state which I had the privilege of serving for 18 months. All these reasons are good enough to make me happy.

The occasion demands me to say something about the author and the book.

Mr.Kaleeswaram raj has argued a few cases before me when I was chief justice of high court of kerala and couple of times in the supreme court.  On one occasion, he was critical of one of the judgments rendered by me as chief justice of high court of kerala.  He said that I missed an opportunity of laying down something very profound.  It was this article of mr.Kaleeswaram which made me take a serious note of him, not because he was critical of my judgment but because I realised that he was a man who has the energy and enthusiasm to critically analyse the judgments. 

Lawyers are more willing to criticize judges than critically analysing the judgments.  Successful lawyers hardly have time or patience to critically analyse judgments.  Some lack determination and others the necessary resources to publish.

In his article, Mr.Kaleeswaram made a reference to Jacques Derrida. I confess that I have no in depth knowledge about Derrida’s theory of deconstruction, though I am broadly aware of the theory.  The reference to derrida really made me take note of Kaleeswaram raj’s intellectual abilities. I like people with that endowment.

I have an uncomfortable feeling that we have become a society which admires and promotes mediocrity. Brilliance is not admired. Mr.Kaleeswaram by now should have been a prominent figure in the indian legal system.  I believe that he has not got the recognition which is due to him.

I believe today that the kind of intellectual inquisitiveness which was exhibited by young lawyers of the earlier times and the excitement which they experienced when they had an opportunity to hear a brilliant argument in the court hall appears to be missing.  If I am proved wrong, I will be the most happy man. I am talking about the averages of the profession.  I know that some of the youngsters are brilliant.  The priority seems to have shifted from learning to money making. I am not at all against lawyers making money. Make it by all means. But make it honourably. That is what I was told when I was an youngster. Legal profession is something more than a mere occupation.  Arguing a case well or writing a good judgment or making a critical analysis of a judgment always gave me greater satisfaction.

I have heard disparaging remarks being made by people occupying high constitutional offices about lawyers who have an academic bent of mind. A very tragic state of affairs.

I believe the period between 1960 to 1990 did not attract the best minds to the legal profession. The best minds of those years were attracted to the study of medicine or technology. Some even opted for the civil services. However, there have been exceptions.

But post 1990s the situation is slowly changing, we find youngsters getting into the law colleges and profession, by choice. The choice is understandable.  Some of the successful lawyers in the Supreme Court make more money than successful film stars like Amitabh Bachchan or Rajinikanth. Perhaps that offers an explanation why the youngsters, are attracted towards the profession. I am not trying to denigrate the youngsters coming into the profession. I am trying to understand the various factors which attract youngsters.   Making money is one of the prime activities of all human beings. And the profession today has the potential of offering you limitless economic success. In the process, we find brilliant youngsters coming. I only hope honestly and pray that the future of this profession is going to be bright because ultimately the success of the judiciary depends upon the quality of the bar. The strength and the success of the judiciary, and the utility of the system depend upon the quality of the members of the bar. I see a hope. Some of the youngsters are simply brilliant. Today, they have greater avenues of information. Our generation and the previous generation coveted a photographic memory, I think it has simply become irrelevant in the modern world. Have a smart phone in your hand, your memory can be kept aside and you can retrieve anything what you want from that instrument. Before I acquired a smart phone, I used to remember at least 300-400 telephone numbers by heart. Today, I don’t remember my own telephone number, honestly ... Leave it there. !!

Having said so much about the profession, the lawyers and their state of affairs, I shall now come back to the book.  Mr. Raj in his book has touched various aspects of the legal system. I would like to mention only three of them for this evening. The first one is the most ‘glamorous’ topic for the last two years- the judicial appointment process. The second one is the eternal problem of indian judiciary – the law’s delays. The third topic is the better management of court system. In my view, they are all interconnected.

As far as the judicial appointment process is concerned, all of you are aware of the on-going story. There can never be a final word in this matter.  There are views and views. What was considered right in the 1950s and the 1960s became doubtful by the 1970s and the 1980s. By 1990s the process became objectionable and unconstitutional. A substitute was invented by a judicial interpretative process. However, with passage of time, doubts came to be expressed about the correctness of the substituted process. Another legislative experiment was made by way of the njac. And you know the result. The majority of the bench held it to be an unconstitutional exercise. Well, that’s the law declared and we are bound by it. But in a democracy, the debate can always go on and will go on; it will not stop. That is the beauty of a democratic system.

What is the right appointment process? Who should be the appointing authority?  Should there be a consultative process in the matter of judicial appointments and who should be the participants in such process? Who will have the last word? Who will have the primacy in the consultative process? These are all questions which possibly have multiple answers.  Irrespective of the answers to each of the above questions, the fact remains that all the exercise is meant for finding out the best available material for manning the judicial system. All of us are aware of the fact - though most of us are not willing to speak - that the selection process leaves something more to be desired.  Whether we are really picking up the best possible or available material for the bench?  It is a question which each one of us will have to answer for ourselves. I believe that the best possible material perhaps is not being picked up for elevation to the bench. So how do you solve this problem? It is an eternal experiment and the eternal vigilance of the bar is the price. Unless the bar as a body is vigilant about it, unless the bar speaks up and expresses its views about the process, things will not change.

If you want, I will tell you an example.  A few years back I was in Gauhati. I was the chief justice of the high court, and a recruitment process took place for junior civil judges’ post. We had to select about 75 candidates to the post of junior civil judges. The selection process was concluded with a written examination and a viva voce programme. After the programme was concluded, I received a delegation from a particular organisation. For obvious reasons, I am not mentioning the names. The grievance of the organisation was regarding selection of 12 or 14 candidates who were not the “children of the soil”- who hailed from the other states and got selected.  According to the delegation, that resulted in depriving “the children of the soil” the opportunity of 12 or 14 appointments.  I tried to convince the members of the delegation that such an argument is impermissible under our constitutional scheme. On the other hand, it positively prohibits it.  Of course, the members of the delegation were not very convinced about it! But then they had no answer to it. At least, in law, there is no answer to it. Then the second reason I gave them is relevant for us:- that is, if these 12 or 14 candidates were ignored (for whatever reason), necessarily the next best had to be selected.  I told them that it was not going to be my problem. I would leave that court some day or other, if not immediately. (it took me three years to leave that court). But the bar would be stuck with those less qualified people; they will have to appear before those less accomplished judges and at some point of time, later the bar would complain that they have to appear and argue before substandard judicial officers for whose appointment only the bar would be responsible.

What happened thereafter is not relevant for our purpose. For various reasons we are not able to pick up the right persons, in the sense, the best persons. I am not saying all those who are picked up are not the right people, but there could be better choices. We invent hundred and one reasons for preferring the less than desirable candidates.
I think, the sooner we get rid of this, the better.  It is better for this country and the system.

Some nine years ago, I said on the diamond jubilee event of the gauhati high court as the chief justice of that court that I didn’t want to make any high sounding speech. I simply said that I want my children and grandchildren to live in this country with dignity, therefore I need to protect this institution. If each one of us remembers this fact, everything would be alright in this country. Somebody could be arrested by the police illegally.  Somebody could be robbed on his way back home.  Unless you have some system in place to protect you from such criminal activities, you will not be able to live in peace or with dignity in the country. Therefore, we need a good, clean, competent and efficient judiciary. And each one of us who is associated with the system at this stage owes an obligation, owes a duty to make every effort to establish or maintain such a judicial system.

Let us come to the topic of delays and better management of the legal system. Delay is a huge topic. There are innumerable reasons behind it.  It may not be possible to touch all of them, not necessary also in a book release function. One of the necessary or inevitable factors which contribute to the delay is the low level efficiency of the system, of the personnel which man the system.  When I talk about the personnel, I am talking about both the bar and the bench. The efficiency levels are not up to the requisite standard.  All of you are practising here. Just visit any court (in the supreme court) on any monday or friday. In my opinion, at least 60% of the cases which are brought before the supreme court on monday and friday should not have crossed the gates of the high court.

This country lived without a supreme court for a hundred years before the establishment of the supreme court. Very few matters went to the privy council, after the federal court came into existence, for various reasons – distance and expenses etc. But the point is not that.the high courts enjoyed such a status and such a prestige. The quality of the High Courts was such that in those years, in quite a large number of cases, people never thought of questioning the decisions thereafter. Today, the situation is different. All kinds of matters are brought before the Supreme Court. I am not blaming the litigant, he may have a genuine grievance. But the question is, can the supreme court handle all these? Is it possible in any country for the highest court to handle every legal problem occurring in the country, is the question. If we don’t devise a system, if we don’t improve the efficiency of the system to assure the litigant about the quality of the adjudicatory process and the efficiency and integrity of the system, the Supreme Court is bound to be flooded with litigation which it cannot handle. Bail applications, delay condonation petitions, panchayat and municipal ward elections disputes - everything has to come up to this court. It only speaks not very well of the efficiency of the system. On Bhagwan das road – undoubtedly you find some of the best lawyers in the country here - some of these brilliant lawyers will always be able to toss up some questions of law to be examined by the supreme court. 

At least in my view - some of my brothers may not agree with me - the supreme court cannot attend to every legal error committed by the system in this country. That’s not the job of supreme court. If the supreme court starts correcting every error committed by every judicial body or a quasi-judicial body in this country, it cannot do its job, i.e., constitutional adjudication - in one of my recent judgments (Reena Suresh Alhat v. State of Maharashtra & Anr.(2017) 3 SCC 119)  I quoted felix frankfurter  in whose view, the court would be failing in its larger duty as ultimate law giver of the country, if it will be settling individual disputes between the parties. But all this is happening because, all of us believe, at least lot of us believe, that the quality of the high courts, nowadays, is not good. I have heard quite a few people saying it. The question is how do we strengthen the high courts? How do we improve the quality? As I mentioned earlier, improvement of the quality of the institution necessarily starts from the improvement of quality of the bar. Until we attempt it, the improvement in quality will not come.

The management of the court is another problem. At various levels the management problem occurs. Management problems are inherent in the model which we adopted in this country. Since the highest court of the country sits in division benches- some 13 courts are sitting today - we are bound to have management problems. What is decided in the first court is not known to the second court on the same day. On the same day, on the same issue, there is possibility of two violently differing opinions coming out. This happens because we have adopted this model of division benches. How many cases are referred to larger benches every year on the ground that there are conflicting opinions on a particular question of law. That is the proof of the failure of management system or the shortcomings of the highest court. Because it is not just the supreme court; it is the highest court. If we have two conflicting judgments on any issue, the confusion percolates down creating more and more litigation. Because the moment you have two judgments, naturally lawyers will start relying upon those judgments and the judges at the high court and the subordinate courts will be wondering what to follow.

I shall tell you an anecdote which is a facially amusing but little deeper examination gives a sad story. It was almost a quarter century back. I was appearing in an election petition for the returned candidate. Incidentally it’s a matter of excitement for me those days. The returned candidate happened to be the then chief minister of Andhra Pradesh. His election was challenged on certain grounds (of corrupt practice). It was the 1983 election.1983-84 were eventful years. The chief minister decided to dissolve the assembly and go for a fresh election in 1985. Election was held. The old election petition was still pending. The matter was adjourned on a number of occasions for various reasons.  There was a preliminary objection which I raised in that matter based on the judgment of the supreme court in M.Karunanidhi v. H.V. Hande (1983) 2 SCC 473).           

Eventually after the 1985 assembly elections took place, the learned judge to whom the election petition was assigned, entertained a doubt in view of the dissolution of the assembly, whether the election petition was still required to be tried. I conceded that the matter had to be tried for the reason that there was an allegation of corrupt practice, and if proved, the chief minister was liable for disqualification. The learned judge had his own doubts. Because the disqualification is not automatic. Prior toMrs.Gandhi’selection case (1975), the disqualification was automatic.  The moment the high court recorded the finding that the returned candidate is guilty of corrupt practice, a disqualification from contesting any election for the next six years automatically followed. Post 1975, since an amendment was made to the representation of people act, the disqualification is made discretionary. Therefore, the learned judge desired to hear the attorney general and ordered notice to the A.G.

 Mr. Parasaran was the attorney general those days. He was busy – most probably with the bhopal gas case. There were two or three adjournments.  Finally Mr. Parasaran came. He told the court: that there was no choice but to try the matter.

 After the attorney general completed his submission, the learned judge asked him for a clarification.  The learned judge asked, “Mr.Parasaran, there is a preliminary objection in this election petition based on karunanidhi’scase delivered in the month of march 1983.  Some 6 months later in A.Madan Mohan v. Kalavakunta Chandrasekhara (1984) 2 SCC 288) on the same question, a view which is apparently conflicting with the view of Karunanidhi’sjudgment was laid down. What am I supposed to do sitting in the high court, with two conflicting views from the supreme court in the same year?” The brilliant attorney general Mr. Parasaran gave a very devastating answer. He told the court, “Your lordships are very lucky. There are two judgments before your lordships today, to choose. Your lordships may choose to follow either of them.  But more often I am confronted with a situation in the Supreme Court where I rely on the earlier part of a judgment and my opponent relies on the later part of the same judgment”. Mind you, he said it. I have no reason to tell you lies today! I don’t know whether Mr. Parasaran remembers it or not. I still remember.

This problem is inherent in a system where the highest court sits in division benches. That’s what I am trying to tell you.

There are lot of such issues which are required to be examined and attended to. Mr.Kaleeswaram raj has tried to highlight some of these problems. The questions are: where do you find the solution and who should find solutions and what is the role of the members of the bar in finding the solutions to these problems. These are the questions I would like to pose to you. I think I have taken sufficiently long time from you. I congratulate Mr. Kaleeswaram raj, I congratulate the publishers and I thank each one of you for bearing with me. Thank you all.

Foot Note:-

*speech delivered by hon’ble Mr.Justice Jasti Chelameswar, judge, supreme court of India, on the occasion of launching of book ‘rethinking judicial reforms: reflections on Indian Legal System’ authored by Mr.Kaleeswaram raj, advocate, at the Indian law institute on 21st March, 2017.

Cognizance on Yogic-Yama

(By A.M Asharaf, Judicial First Class Magistrate, Adimali)

Anger is undesirous wave of feelings or thoughts. Preasure emanated from litigation makes dust-noisy situation. Prudent and wise attempt of courts is not to keep its hands tied. Expectation of people for the performance of Justice, technological advancements and explosion of laws in every aspect of modern life have contributed sky rocketing the mental imbalance of legal professionals too. In coping up with balancing or regulating of such tensed situation, will be fair to the public and parties to the lis. Intelligently handling the situation is the key to diminish cloudy sky. It is incumbent on every lawyers, officer of the court to dilute any unpleasant tensed situation with his inborn talent with the parameters of law. Judges are not interested parties to the legal struggle and not fighting for their own power, but a voyageour through the sea of difficulties to reach at the destination of truth and realities. Lawyers butterfly, who put grains and chalff in the adjudicating or revolving drum by flight-fight journey. However, they too succor the courts in the truth finding process, though, clash for protecting interest, values, actions or directions and often spark of conflict between Bar & Bench. Thus, conflicts in the mindsetting can result stress or tension among all, which may expose conflict of interest, which may mould in to an actual or perceived opposition of need and values, its result may be the loss of equilibrium of body and mind.

‘Yogic Yama’ is a mental medicine, to control waves of thoughts. In other words, tools for anger pressure management or may be understood as the avoidance of undesirable realms . Desire to win a case and urge to defeat a party in the lis, are the main root of anger in the atmosphere of courts. One commonalities is that, in all, an element of undesirous wave of feelings would be in praesanti i.e., Anger. When things have gone wrong, desire become frustrate, anger emerges, such anger would be expensive also or rather, less mental fitness and variety of stresses. In these juncture we can’t think equally, as we think, the negative and positive thoughts may result at the same time in the mind.   Here, the breathing techniques can bring a balanced deep and rest.

The irate reactions likely to result from anger. There may be factors affecting Anger, such as ego, ignorance, vengeance or exceed love. The range of anger may not be uniform in the minds of every one as the anger waves are undulates. Yogic Yama deals with the thoughts of mind or control of anger waves. The thought waves may either be intense (rajasic) or very slow (tamasic). Tamasic waves of thought are dull and gross. Rajasic waves are intense, agitated state of mind.

When we breath through left nostril, the left brain will be active. It is analytical, mathematical, scientific is rajasic. When we breath though right nostrils, right brain will be active. It is phylosophical, devotional, compassionate, and used for emotions like love, hartedness etc. and it is tamasic. A proper Anger control or emotion management is a proper balance between the right and left brains. Here the concept of ‘Yogic Yama’plays a lot. In Yogic Yama this equilibrium can be called as an union of “Prana”and “apana” i.e., pranayama. I would call it as Yogic -Yama. When it survives in our profession then call it as Judicial Yogic Yama.

The following methods may be adopted for not being affected by anger

1. Inner silence (antar mauna)

2. Leaving that place

3. Drinking immediately ice water

4. Awareness about sense and situation

So also there are ways to control anger by walking, observing and doing interested things etc. All the above are Yogic practices, such as Meditation, Karmayoga, Pranayama, Kriyas. In the recent past all the stated above have proven to be victorious in the world. Every one of us, however great or small or sinner, rich or poor, king or begger strives for happiness. Because, We desire the pleasantness.