Transparency in Collegium

This was first published here by me.

The decision of the Supreme Court collegium to upload its resolutions with reasons is a watershed moment in the longtime campaign by various stakeholders to ensure transparency in its functioning, albeit with certain reservations. Until now the functioning of the collegium was shrouded in utmost secrecy with the news articles regarding the appointment, transfer of judges from the collegium published as obtained from ‘highly placed sources’. This method of functioning of the collegium came under heavy criticism from various sections of the society, since no significant improvement happened even after the court in the NJAC judgment accepted that the collegium system requires corrective measure for ‘improvement’ in its functioning. After the delivery of the judgment, declaring the National Judicial Appointments Commission as unconstitutional the bench invited suggestions for improving the functioning of the collegium, in pursuance to which a report came to be filed, containing recommendations on four categories Transparency, Eligibility, Secretariat, Complaints. Of the four categories, the recommendations made under the head of transparency were easily implementable by the collegium itself without having had to wait for the finalisation of the Memorandum of Procedure. But it was not until the recent furore over the resignation of Justice Patel that has resulted in this voluntary disclosure of collegium resolutions. What is yet baffling the is the consistent failure of the institution to recognise the importance of civil audit of its functioning, which cannot be sustained without adequate disclosure of information about its functioning. The recent episode of Justice Karnan has amply demonstrated that such disclosure of information at the level of High Collegium would have at least provided sufficient warning about the appointment of an ineligible candidate to the bench. The sordid saga of the Supreme Court having to resort to its contempt jurisdiction against a serving High Court judge cannot be erased easily.

Even now the decision to disclose the resolutions cannot be termed as sufficient. It is a first step in a long way that is to be covered. The resolution of the collegium to disclose information has made a subtle reservation at the end in stating that “The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.” No information has been provided as to what does the maintaining of confidentiality would entail and what are the aspects and information in its functioning which would be reserved from disclosure. The protest lodged by a member of the collegium Justice Chelameswar specifically pointed that minutes of the meetings to discuss on appointments and transfers to maintained. Subsequently, only an informal source provided a news that ‘circulation’ method has been adopted, where files on appointments and transfers are circulated amongst the members with each of them having to provide their reasons in writing about their decision. The reasons provided in the resolutions are extremely limited for any meaningful understanding to be drawn about the appointment of a candidate. For example, each candidate’s, who are members of the lower judiciary, professional ability has been assessed by “Judgment Committee” which assess the quality of judgments delivered by them. With no basic information about the criteria upon which the committee makes the assessment and the weight that the conclusion of the judgement committee carries in the overall decision to appoint a candidate, it is inadequate in the least. It is also notable that for the appointment and transfer of judges of the High Court opinion of only three senior most members of the collegium is required to arrive at the decision and all the five members for the appointment to Supreme Court.

In spite of this being a very bold and welcome move, a reserved disclosure of information just as this would not completely satisfy the requirements of transparency. Adequate disclosure of relevant information must start from the High Court collegium stage itself when a candidate is under the zone of consideration. This would inculcate the first principles of transparency in the appointment process while paving way for civil participation as well. Arguably, the present mindset within the judicial set up against any move towards ensuring transparency is to protect the institutional integrity. Counterintuitively, such informational disclosure would also shield the decisions of collegium from unnecessary criticism paving way for enhanced institutional integrity that it strives for. This is very bold and welcome step, albeit in a long road that is yet to be covered.

Reportable Judgments and Non-Reportable Judgments.

The post first written in Law and Other Things by me.

The common law as a legal system derives its legitimacy from its reliance upon the established tradition called precedents or in other words called as the principle of stare decisis. The tradition of this system as a whole, it is thought that, derives its legitimacy from its reliance upon the precedents. This is nothing more than a result of the importance to stability and certainty that it expects from the law as a discourse. It is seen as a steadying force that steers it clear of the much-resented contradiction and towards a safer predictable course that which can be acted upon safely. This helped to a great extent for the evolution of the common law system in its past. However, if seen from a practical standpoint in the present situation, the contradictions that the voluminous precedents create are apparent. It is proving to be difficult for anyone to have a unified understanding of the widely complex jurisprudence that the flow of time would have created. The perplexity that is created in the mind of anyone who tries to apply the law is captured perfectly by Benjamin Cardozo, in the context of requirement of periodical restatement of law, in his following words

The very strength of our common law, its cautious advance and retreat a few steps at a time is turned into weakness unless bearings are taken up at frequent intervals, so that we may know the relation of the step to the movement as a whole. One line is run here; another there. We have a filigree of threads and cross-threads, radiating from the centre, and dividing one another into sections and cross-sections. We shall be caught in the tentacles of the web, unless some superintending mind imparts the secret of the structure, lifting us to a height where the unity of the circle will be visible as it lied below.

This perfectly reflects the situation that is prevalent in India, considering the fact that even the highest of court churns out hundreds of judgments every year with the volumes of court reports burgeoning with each passing year. Predictably, there have been instances of judgments with contradictory reasoning being delivered even by the Supreme Court simultaneously, creating a jurisprudential naught. In fact, they also report inconsequential orders that are peculiar to special facts of the case resulting in they too becoming a part of the ever-increasing volumes of precedent.
Common law as a system constantly strives hard to balance between the stability through the reliance on precedence on one hand and its need to cater to the changing needs of the time in the other. In the time past, in order to avoid such jurisprudential conflicts the salutary rule was to report only those judgments that establish any principle of law which can guide the decision-making process in the future to ensure a consistent approach. Even now the judgments of both Supreme Court and High Courts contains two questions

• Whether to be reported in law reports or not?
• Whether to be shown to the press or not?

Even if the judge answers both the questions in negative, the reports continue to report those judgments, making it an altogether futile exercise. Senior Advocate Fali S. Nariman notes in his book (India’s Legal System Can it be Saved? @Pg:143) that the judges themselves does not exercise their discretion judiciously “abetted by overweening judicial vanity” in deciding whether to report a judgment or not.
With increasing emphasis on the freedom of press and transparency in the judicial process, the exercise has long lost its purpose. Practically too there is nothing that can stop open access to the judgments of the courts from being accessed. With websites like India Kanoon and search engines like Google using ‘crawlers’ to periodically search for data and add to their index, the availability of the judgments is not merely confined to the law reports, unlike the earlier times. In fact, citing of unreported judgments has become a fairly routine happening in the courts by the counsels. A judgment of the Gujarat High Court furthers this by stating that merely publishing on the website would not amount to same being reported, as the word “reportable” used for judgment is in relation to it being reported in law reporter. Even otherwise, the law reports do not discriminate between a ‘reportable’ judgment and ‘non-reportable judgment’.

The Governing Statute:

Statutorily, the only act that seems to have been enacted to regulate the reporting of judgments is the Indian Law Reports Act, 1875. Section 3 of the Act states that ‘No Court shall be bound to hear cited, or Authority shall receive or treat as an authority binding on it, given only to the report of any case decided by any of the said High Courts on or after the said day, other than a report published under the authority of the Governor General in Council’. This effectively created a monopoly of legal knowledge to the official reports. However, in practice this statute remained a dead letter for unofficial reports continued to be cited and relied upon by the courts. The 14th Law Commission Report chronicles the history of law reporting in India in a lucid manner and other attempts in the form of a bill, which failed to become a law in the end, to regulate legal reports. The existence of this dead letter law was first taken note of in the 96th Law Commission Report (1984), particularly noting the anomaly created by the provision if, for example, “… a single judge, relying on section 3, refuses to look at an unofficial ruling of a division bench” creating an “unsatisfactory” position where there would be a division bench ruling “disregarded” by a single judge. This is clearly entrenched in Article 141 of the Constitution of India under which “law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India”.
The report ultimately recommended for repealing the act. Subsequently, the Commission on Review of Administrative Laws (P.C.Jain Commission) and 249th Report of Law Commission of India on ‘Obsolete Laws: Warranting Immediate Repeal (Second Interim Report)’ also recommended for its repeal. It was not until very recently through the Repealing and Amending Act, 2016 that the act stands repealed.

What to Report or What not to Report?

With the Indian Law Reports Act, 1875, the reporting conundrum has also been put to rest. However, there are lot many yet to be resolved questions that linger.

• In the interests of lessening the volume of precedents, whether it is possible by way of judicial discipline to enforce a rule to only accept reportable judgments as a binding precedent or not?
• Can the inherent conflict that would inevitably arise between the so un-reported judgments with binding provisions like Article 141 be reconciled in any manner?
• If yes, what are the parameters upon which a judge must decide and exercise his discretion on whether a judgment is to be reported or not?

Though it has become a settled principle that the open access to judgments cannot be curbed in any manner not to infringe upon other concerns such as freedom of press, it yet possible to evolve a form of restraint both from the bar and the bench to use this now obsolete way to use reportable and un-reportable judgments. In the United States of America, legal scholars come together to study all the past precedents and bring out coherent and concisely the general principles that emerge out of them for future use, called as ‘restatement of law’. This is used as a secondary source, but it relegates all the past precedents before such a restatement to the history. With no such exercise or the prospect of it happening in India, it would do good to evolve some self-made discipline to find a cure for the ‘case law diarrhoea’ that plagues our legal system.

Triple Talaq Verdict: Certain Misgivings on the Majority

The week past has been an important one for the two important verdicts delivered by the Supreme Court on Triple Talaq and the Right to Privacy has ushered in new changes in the constitutional outlook. Especially the verdict by the Supreme Court declaring the Triple Talaq to be illegal has been hailed by the members of the civil society as an important step towards the realization of equality for women. However, the 3:2 majority that delivered the verdict, precariously thin majority that it is, has given rise to more questions than what it purports to settle now. The jurisprudential questions that it has opened up will give rise to new round of debates over religious rights vis-a-vis the individual liberties. More than the outcome the basis upon which it has been arrived at poses certain intriguing questions that could give rise to new round of debates in the future. This is especially because even within the majority of three judges the authors Kurian Joseph J. and Rohinton Nariman J. differs on the fundamental reasoning to call the practice of TT invalid. Nariman J. in order to declare Triple Talaq to be illegal puts forward two fold reasoning.
1) It is 'arbitrary' in violation of right to equality under Article 14 and hence unconstitutional.
2) Triple Talaq is against the fundamental tenets of Islam and hence illegal.
In his first reasoning, Justice Nariman has restricted himself only to test the practice of Triple Talaq upon the principles of equality under Article 14, while wholly ignoring the discrimination that sexual discrimination that this practice causes by testing its validity against Article 15, which prohibits discrimination on the grounds of sex amongst other grounds. To the contrary, Justice Kurian Joseph takes a rather narrow approach by only testing the whether the practice of triple Talaq is against the fundamental principles of Islam itself without any resort to the arguments of the Petitioners upon the infringement of the affected women’s fundamental rights. While testing the Triple Talaq crucially did not feel the need to inquire into the constitutionality of Triple Talaq. He differs from the opinion of Justice Nariman in his finding that Muslim Personal Law (Shariat) Application Act, 1937 is a law that regulates Talaq, a precondition under Article 13 (1) of the constitution to invalidate anything to be unconstitutional. He has in fact agreed with minority opinion of Chief Justice Kehar in this regard. in holding that the 1937 Act is not a legislation regulating talaq, rather it merely states that "Shariat [is] applicable as the rule of decision in the matters enumerated in section 2" of 1937 Act. His reasoning for holding it illegal under the EP test are similar in nature to that of the opinion of Nariman J. Here he holds that under quran itself, whenever a talaq is granted, an opportunity for reconciliation is necessary and if the reconciliation succeeds revocation can happen. These are essential under Quran. TT closed the opportunity for such a possibility and hence it violated 'shariat'. But this narrow view to declare it illegal, without resorting to the main arguments on discrimination and arbitrariness is a precarious proposition for the enhancement of civil rights. Unless the rights that are alleged to be violated by such regressive religious practices are constitutionally protected it cannot be remedied completely. It is yet a regressive choice that personal laws can prevail over fundamental rights.
Quite independently, Justice Nariman, in consonance with Justice Joseph’s conclusion, also tests the practice by inquiring into whether it permitted within the Islamic jurisprudence or not. In other words, he tests whether it forms an essential inalienable part of the religion of Islam or not, called as ‘essential practices’ test. The test was for the first time used by the court in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 case. The question that was involved here is the conflict between the rights to practice a religion (Article 25) as against the intervention of state on the grounds of social welfare and other secular activities. The court held that any kind of infringement of these rights, if it does not affect the essential aspects of the religion, could not be given the protection under Article 25 and 26. Through this argument the court sought to regulate those aspects of a religion that does not form the core of the subject religion.

“… in regard to article 26 is, what is the scope of clause (b) of the article which speaks of management “of its own affairs in matters of religion?" The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, whereas the line to be drawn between what are matters of religion and what are not. It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.”

This test essentially gives the power to courts to decide upon what constitutes the essential aspects of religion, fundamentally altering freedom choice in the inner belief system of an individual to an externally dictated version of it. The reach and practice of a religion, while it cannot be put to any precise definition, the court attempts to do that by relating it powers to find what constituted the integral part of it. In the words of the court:
A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Article 25.
The attempt here is to secularize the religion with an external definition that might run contrary to the manner in which the followers of a particular religion would interpret it actually. This reverses the freedom of choice of a person to see the religion in the way that he chooses it to be as against an externally dictated conception of the belief system of the individual. This is an unnecessary exercise, which could have been avoided, to look into the validity of the practice when the rights infringed are constitutionally guaranteed rights of individuals.
This, in fact, runs quite contrary to the secular ideals that were envisaged under Article 25, which leaves things to choice sensitive to religious and legal pluralism rather than an expectation in terms of normative uniformity. Also, the definition of “religion” itself was given the widest possible amplitude in this judgment

“Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”

In fact, Nariman J. while noting this judgment states, “atheism would also form part of “religion”.” (Para 24) By both providing the powers to define what constitutes ones faith and by defining the term “religion” under the “essential practices” test the court’s power has arrogated to itself the powers to homogeneously define anything that falls under the term “religion”. In fact this has been used so much so that in a recent case the Supreme Court decided whether keeping a beard formed the essential practice under Islam or not. (Mohammed Zubair Corporal No.781467-G Vs. Union of India & Ors. Civil Appeal No. 8643 of 2009)
The subsequent line of judgments on this question both reiterated and expanded this. The fundamental issue here with this present TT judgment perpetrating this is that it chokes the critical ability of a person to self identify his own belief system by possibly alienating a social norm that does not conform to these devised tests imposed by the judiciary. There cannot be any straitjacket definition that could possibly be provided for a person’s faith by eliminating the role played by freedom of choice for an individual guaranteed under the Constitution. Counterintuitively this test curtails the very freedom the practice religion (according to one’s own conception of what religion is) that it seeks to protect under Article 25, creating an anomaly.
In the present case, Nariman J., in order to hold the TT to be unconstitutional, first he brought the 1937 act under the definition of “laws in force” Article 13 (1) in order to test TT for infringement of the Muslim Women’s rights under Article 14, as against the opinion of Kurian Joseph J. By holding that TT can be tested on the anvil of the principles ‘arbitrariness’ developed under Article 14 the case was very much made for holding it unconstitutional. There never arose any need for Nariman J. to resort to whether TT forms an essential practice of Islam. This was an invaluable opportunity to discard this test altogether from the constitutional jurisprudence.

Individual Liberty Vs. Religious Rights

The parochial understanding paid to the underlying questions upon the civil liberties of the affected women is made visible by the choice of the court to not reconsider the past precedent in State of Bombay Vs. Narassu Appa Mali, which held that personal laws cannot be subject to the restrictions of fundamental rights. It is quite anachronistic that individual rights are given precedence for the communal rights in an era where completely new forms of rights are propounded by the court. The narrow view taken by the judges, including the dissenting minority, without resorting to the main arguments on discrimination is a precarious proposition for the furtherance of civil rights jurisprudence. Unless the rights that are alleged to be violated by such regressive religious practices are constitutionally protected it cannot be remedied completely. It is yet a regressive choice that personal laws can prevail over fundamental rights. This is a classic example of misplaced priorities of the court in balancing individual liberties against the communal rights. More than the overall the conclusion, the failure of the court to recognize the inequality in the prevalent social structure against the women would ring against the liberal conscience of the court.

Formal Vs. Substantive Equality

The opinion rendered by Justice Nariman is celebrated by scholars for furthering the jurisprudence of equality and the principles of ‘arbitrariness’ under Article 14 of the Constitution. This is missing the wood for the trees. The verdicts failure to even recognize that there has been discrimination based on sex, in violation of Article 15, has misdirected the inequality analysis. It is only after taking into consideration the substantive effects of sex of a person plays a role in directing discrimination that one can recognize the mischief that is sought to be remedied. The superficial assessment of all the three opinions has failed to look at the root cause that is gender discrimination only accords a formal equality that has not remedied the issue. This is only a formal equality giving a short shrift to the unequal bargaining power of women in a family structure. It is necessary that the discussion must redirect its attention to the social constructs of discrimination and must analyze it in its own terms. The deeper questions over economic dependence of women, artificial construct of gender based social hierarchy and the resultant discrimination cannot be answered without it. It must deconstruct the social, economic and political dimensions of the gender based discrimination that are a direct result of a conservative understanding of women’s position in the society to achieve substantive equality by travelling the last mile.
A mechanical look at the majority opinion might show it to be a progressive verdict in terms of its outcome; however, it is yet another opportunity missed by the judiciary to protect a major vulnerable section of the society from discrimination and abuse. Jurisprudentially there is a great difference in the two opinions of the majority putting things at a naught. It would be interesting to see the further development of jurisprudence upon this pulpit in the future and how these differences within the majority are going to play out further.

Naz Foundation Judgement and Right to Privacy: A Revisit

Now that the much-awaited judgement of Supreme Court judgement on Right to Privacy is upon us, many interesting discussions are happening all around. On a jurisprudential level the judgement will be path breaking and will initiate further discussion on this subject, for its impact is widespread. More than putting an end to the problems involved this decision would initiate fresh grounds for development of law in this area. Some past decisions might have to be revisited based on the outcome here. One such case is the regressive jurisprudence established by the Supreme Court in Suresh Kumar Koushal & Anr. Vs. Naz Foundation and Ors. (2014) 1 SCC 1. Apart from other jurisprudential mistakes, that the judgement has made it has relied upon two judgements in particular to discredit the arguments on right to privacy made by the LGBT persons in the case. While the High Court 160 (2009) DLT 277 found Section 377 to be in violation of the Right to Privacy under Article 21, the Supreme Court simply rejected such arguments relying upon the judgement by the Court in Kharak Singh v. State of UP AIR 1963 SC 1295 and Gobind v. State of MP  (1975) 2 SCC 148. The overt reliance by the court in these two judgements is both to delineate the state interference on one’s privacy rights and to show that Section 377 challenged in the case falls under the reasonable restrictions on the fundamental rights guaranteed under the constitution. As far as the correctness of these two judgements are concerned it can be seen that these cases are no more a good law, since they were effectively been disregarded in a line of subsequent cases. Especially in Kharak Singh the ratio was based upon the premise that the fundamental rights were watertight compartments, which cannot be read together and cannot have spill over effects on each other –a pre Maneka Gandhi era with A.K.Gopalan understanding of fundamental rights. However, this understanding has been changed both in Maneka Gandhi and R.C.Cooper judgements of the court. Moreover, a seriatim of subsequent cases has identified this and has been noted by the court even very recently in Mohd Arif v. Supreme Court of India (2014) 9 SCC 737

“25. In Kharak Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] reading of fundamental rights in watertight compartments was reiterated by the majority. However, they went one step further to say that “personal liberty” in Art. 21 takes in and comprises the residue after all the rights granted by Art. 19. Justices Subba Rao and Shah disagreed. They held:
“The fundamental right of life and personal liberty have many attributes and some of them are found in Art. 19. If a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Art. 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Art. 19(1)(d) and Art. 21 are infringed by the State.” (at pages 356-357)
26. The minority judgment of Subba Rao and Shah, JJ. eventually became law in Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India [Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248] , where the 11-Judge Bench finally discarded Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] view and held that various fundamental rights contained in different articles are not mutually exclusive: (SCC p. 289, para 53)
“53. We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression “law” means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.”
27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248] . Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48 : SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J]

In the much-awaited judgement on the right to privacy, if the court finds that the Right to Privacy is a fundamental right recognised under the constitution they must necessarily overrule these two judgements, which has been relied upon in Naz foundation, explicitly to arrive at such a conclusion. This would erode the fundamental premise upon which the challenge to Section 377 was made by the LGBT persons was rejected by the court. Also, while arguments were made before the 5 judge bench in the Right to Privacy case it was strenuously submitted the petitioners that the court must only identify that the Right to Privacy is a fundamental right and is a part of the Constitution and it must not venture into defining the contours of it but to leave it to be decided on case to case basis. In Naz Foundation, the state interference in the matters of personal choice and sexual orientation may have to be revisited in view of the concrete understanding that would emerge through this judgement on privacy rights. Specifically in the context of privacy rights and individual autonomy over sexual orientation would be put to question and there would be a necessity to delineate the degree of state interference in such matters. It would provide a wonderful opportunity for the court to revisit one of the most regressive judgements ever has been delivered by the court. The overarching impact of the judgment on the constitutional status of right to privacy can be keenly felt when we see the wide ranging repercussions, either positive or negative, that it could create in the established jurisprudence. It is the fondest hope that the Supreme Court would not succumb to the temptations of arming the state by failing to recognise such an inalienable right.

ADM Jabalpur Vs Shivakant Shukla: Supreme Court and its Jurisprudence of Redemption

If there is one case which marked the downfall of Indian judiciary no doubt that it will be Habeas Corpus case (ADM Jabalpur Vs. Shivakant Shukla (1976) 2 SCC 521). The case was decided by the court in a highly charged political situation and it was clearly visible for everyone that the decision was made the court not on merits but on external political considerations. The tragedy also gifted us with the courageous dissent of Hon'ble Justice H.R.Khanna who went down the annals of history and the saviour of the ideals for which the Indian democracy stood for. But the mortal blow that the decision and its subsequent repercussions dealt to the higher judiciary took a long time to recover. During the hearing of the case when Justice Khanna specifically asked whether there would be any remedy if a police officer, because of personal enimity, took into detention a law abiding citizen and even put an end to his life. The attorney general unequivocally stated that, 'consistently with my argument there will be no judicial remedy in such cases as long as the emergency lasts’. It is a treacherous path that the government went into and which the Supreme Court gave into. The decision altered the very nature and course that the judiciary was to take in its days to come. The blatant supersession of Justice Khanna in his appointment as the Chief Justice of India was a direct result of his dissent from the 4 other judges forming the majority which held that even fundamental rights are suspended when emergency is proclaimed. The then judicial reclusiveness gave way to newly found activism which elevated it to unknown heights. The judiciary cloistered itself and arrogated to it all powers that was possibly within its reach under the Constitution including its own process of appointments and transfers. Entering into a new era, its subsequent interpretive ventures expanded both reach and scope of civil liberties under the Constitution.

The new jurisprudence that which was heralded by the Supreme Court post the Habeas Corpus case ushered in an positive morality to the constituional provisions. But it is yet a surprising fact that the judgement, which is seen as a gruesome manifestation of state power, has dubious validity without being explicitly overruled. There arose no opportunity for the Apex Court to revisit this byproduct of the dark hours of emergency. In an era where far reaching rights, which were never intended or contemplated by the framers of the Constitution were provided by the judiciary purely through its powers of interpretation, it baffles one's reasoning power to think that this still forms a part of its history. In contrast with the judiciary that we know of now, this judgement yet remains a blemish in its record. To put this in perspective a passage from the majority judgement written by J. Beg will be instructive

“we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed, and well-treated, is almost maternal. Even parents have to take appropriate prevent action against those children who may threaten to burn down the house they live in.”

The subsequent jurisprudence expounded by the Supreme Court in a series of landmark judgements changed the fundamental approach towards the interpretation of constitutional rights and the remedies. Therefore it is important for us to see what is the scope and reach of the jurisprudential conclusion arrived at by the court in this infamous judgement. Apart from its conclusion on the suspension of fundamental rights during emergency it also raised several contentious issues upon the substantive and procedural justice and it's implications.

The issue that arose in ADM Jabalpur is whether constitutional remedies under Article 226 and Article 32 of the Constitution can be availed by a party whose fundamental rights are infringed during emergency or not. The issue arose when, after the declaration of emergency by the President, many leaders of the opposition were arrested by the government on one pretext or the other all over the country. Within two days of declaring the emergency the President made another declaration whereby no person could move the courts for enforcement of articles 14, 21 & 22. The detainees initiated Habeas Corpus petition before the high courts challenging their detention. Though the judiciary was not able to examine the order of detention on any illegality under the maintenance of internal security act, 1971, several High Courts granted the relief to such Petitoners by scrutinising the validity of such detention orders on the pedestal of fundamental rights conferred under Article 14, 21 and 22, in spite of the proclamation of emergency under Article 359. The Supreme Court in the challenge to such orders concluded that

"Article 359 prohibited enforcement of articles 14, 21 & 22 and it also barred anyone from approaching the High Court to question his detention on any ground whatsoever. Liberty is the gift of law and can be forfeited by law. There is a complete bar to approach the court for any violation of articles 14, 21 and 22 once a proclamation under Article 359 is made. No person can question his detention for any reason whatsoever or on the ground that it is illegal and mala fide."

In a textualist reading of the provisions the majority concluded the above by ignoring the fact that one does always have to read the provisions of the Constitution with strict fidelity to its text, or in a manner faithful to the intent of its framers. The parochial understanding of Article 21 and its substantive reach was directly carried over from the A.K.Gopalan (AIR 1950 SC 27) where the court rejected the arguments to import the due process clause from the American Constitution. The entailing effect was that even when a procedure established by law passed by the legislature offends Part III the validity of such a law or the procedure cannot be challenged. The court also concluded the fundamental rights to be mutually exclusive and are water tight compartments which cannot have spilling effects on the other rights conferred under Part III of the Constitution. The substantive effect of such a conclusion is that the rights that were not explicitly recognized under the Part III cannot be enforced. The dissent by J. Khanna in refusal tellingly stated that 

“The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights  I did not have the effect of exterminating the independent identity of such a right and of making Article 21 to be the sole repository of that right.” (para 531)

This conclusion of the court over the ambit and scope of Article 21 that is seen above was substantially overruled by the court the celebrated case of Maneka Gandhi Vs. Union of India (1978) 1 SCC 248. It is of interest to know that (ironically) three of the judges (Beg, Chandrachud, and Bhagwati) in the bench which decided the Maneka Gandhi were also a part of the bench which decided the Habeas Corpus case. It substantially imported the due process clause, which was consciously eschewed by the framers of the Constitution. The jurisprudence that was spearheaded by the Supreme Court in the subsequent decades expanded the ambit of the ‘due process’ to include 'substantial’ due process. In fact, it is the author of the Habeas Corpus judgement J. Bhagwati who opened up a whole new arena of rights under Article 21 by recognizing the epistolary jurisprudence for the first in the history heralding the new era of Public Interest Litigation (PIL). If one looks at the human participants behind these judgements, one cannot help but think that the ground breaking jurisprudence heralded by the Apex Court is a jurisprudence of redemption for what it failed to do during the hours of want for this country. While the external pressure made these decision makers to follow this path of regression, the subsequent decades, post emergency, provided valuable lessons for the judiciary to be cautious of the executive excesses affecting the Independence of judiciary and its ability to curtail the freedom. The judiciary saw this as an opportunity to redeem its role as a protector of civil liberties enshrined under the Constitution. Undoubtedly the subsequent developments be it the expansion of Article 21 to include civil rights of the new era or the expansion of its powers of judicial  review is towards this goal. It is necessary for the court to not forget such lessons in the present when questions as to the very existence of rights as basic as privacy are put to question by the state before the court.

P.S: In the arguments before the 9 Judge bench, constituted for deciding on the fundamental right to privacy, Advocate Mr.Gopal Shankaranarayanan made an argument (albeit as a passing remark) that this judgement can be overruled by the present bench. The legal effect of the judgement, apart from the implied overruling by subsequent judgements of the court, the 44th constitutional amendment nullified it. Making it irrelevant as far as the legal effect is concerned. However, it yet remains as a blot in the judicial reasoning and deserves to be overruled by the present bench of 9 judges.

Right to Privacy: Summary of Arguments Made by the Petitioners on Day 2 of the Hearings

Day 2: 

The bench comprised of 9 judges sitting from left to right in the following order

• Sanjay Kishan Kaul J.
• A.M. Sapre J.
• R.K. Agarwal J.
• Jasti Chelameshwar J.
• J.S. Kehar J.
• S.A. Bobde J.
• R.F. Nariman J.
• Dhananjay Chandrachud J.
• Navin Sinha J.

10:30 AM: Arguments were continued by Sr. Advocate Mr.Arvind Datar from where he let off the previous day

• The three types of privacy that an individual can command are as follows
• Physical privacy: Protection against tangible and intangible invasion of private space.
• Informational privacy: An individual's control over the dissemination of his private information.
• Decisional privacy: Protection of an individual's autonomy over fundamental personal choices.
• Interrupted by Dhananjay Chandrachud J. (DyC) with the following question 

DyC: For us to claim the protection from invasion of privacy from the state is one thing. But for a horizontal right like Right to Privacy can the same be enforced against private entities?

Datar: The remedy in that case is of damages.

DyC: But, the state has equal obligation for protection even against violations by a private player. Say for example its role might by to frame appropriate rules and regulations to prevent such violations from happening.

Datar: Yes! I completely agree. The state is obligated to play its role.

DyC: But the obligation and the entailing burden on the state may not be equal in all such horizontal rights.

11:00 AM: Mr.Datar rested his arguments and the stage was taken by Sr.Adv. Mr.Anand Grover

• Maneka Gandhi has overrules Kharak Singh, so there is no need to get into that discussion.
• The UOI has made a primary argument that the Right to Privacy is not present within the constitution in any form. If at all it is granted as a common law right. I say that English Common Law does not recognise the right. It is imported by the American Jurisprudence.
• It is baffling that we are still debating upon the very existence of a right as essential as this after the passage of such a long time.
• Such form of human rights is a part of the obligation that India has under the international instruments that it has signed. (Cites Article 17 of International Covenant on Civil and Political Rights).
• Sr. Adv. Mr.Gopal Subramanium (GS) interrupts: The recent Manipur judgement (Extra Judl. Exec. Victims Families Association & Anr. Vs. Union of India & Ors. W.P. Crl. No.129/2012) delivered by M.B. Lokur J. discusses this.
• It is the obligation of the state to implement and comply with such international instruments if it is not against any of the domestic law. It is in pursuance of such obligation that several acts like Protection of Human Rights Act, 1993 were enacted. In fact, Section 12 (f) of the Act obligates the National Human Rights Commission to study treaties and other international instruments on human rights to make suitable recommendations for their effective implementation. Interrupted by Rohinton F. Nariman J. (RFN)

RFN: The court can issue a mandamus to the government to enforce the commitments of the nation under such international instruments.

GS: Yes! It has happened in the past.

• If there is no domestic law and there is international law then the international law will prevail. This has been enunciated in the Vishaka Judgement by the Supreme Court itself.

RFN: Then we can say that the 8 judge bench in the M.P.Sharma case is outrightly wrong since it was delivered in the face of international instruments such as Universal Declaration of Human Rights (UDHR).

Grover: Also it does not have the ratio decidendi. Privacy was never an issue before that bench.

• Dignity is always associated with privacy. Interrupted by DyC: "Then the NALSA judgement would become vulnerable". (Mr.Grover enters into an animated discussion about the NALSA judgement by tracing out the dignity and privacy aspects of the issues involved in that case).
• The present bench should not precisely define the Right to Privacy in its totality. It may trace its contours to provide a general idea and leave the rest to be decided on case to case basis. 
• Cites Govind Vs. State of Madhya Pradesh 1975 SCR (3) 946. DyC: This judgement by Mathews J. is a rather narrow conception of privacy. The issue was not entertained in its full context. Only now the issue is entertained in full fledged manner.
• Tests that can be used differs from the Article under which the issue of privacy arises. It can either arise in Art.19 or 21. So the issue must be adjudicated and tested in the appropriate context. Several of such tests can be 
• Compelling state interest test.
• Proportionality test.
• Least Restrictive test.
• Legitimacy test.
• Privacy would also entail the right to identity and right to remain anonymous. DyC cites several practical examples where the issues of privacy and state necessity are encountered.

In applying for a passport for an adopted child can the authority compel to disclose the details of biological parents. Also in case of a single mother can there be any compulsion to disclose the identity of the father? To what extent such rights can be claimed, if at all there is any?

Suppose the government maintains a register about all people who has committed a crime. The violation of the Right to Privacy is not merely of the maintaining the register. There will be one if such an information is used to profile individuals and their propensity to commit crime. 

Ultimately, the important issue is that the identity should not be used to stigmatise the person. (Cites NALSA judgement.)

• Cites Right to Privacy and bodily integrity of a mentally unstable woman and a victim of rape to give birth to a child. (Suchita Srivastava Vs. Chandigarh Administration)
• There is a right to privacy. But it should not be defined now. It should be on case to case basis. It should be indicative (Sr. Adv. GS whispering in Grover's ears: Let us not go into the merits of Aadhaar case now. Grover nods in agreement).
• The Right to Privacy is all pervading, the test for which will depend on the right in which it manifests itself.

1:50 PM: Arguments rested by Mr.Anand Grover and the stage has been taken by Sr. Adv. Sajjan Poovayya (SjP).

• Cites United States Vs. Jones (2012). DyC: Please tell us about consent, informed consent and its entailing effects.

DyC: If any surveillance is a transgression of Right to Privacy, then what about the legitimate requirements of the state such as a person being put under surveillance under alleges terrorist activities?

SjP: Then it must be done under the procedure established by law.

Chelameshwar: What is the objection on mere collection of data?

SjP: Given the advancement in technology the collection of data and its processing happens near simultaneously due to artificial intelligence. The possibilities of abuse is large. Moreover, in case of a private player I consent for such a collection on a case to case basis on a private contract to avail its services. That is not the case with the state.

• Secrecy is not a prerequisite for protection under Right to Privacy. Even the information in public domain is entitled to such a protection.
• The state is not merely obligated to protect the physical being of its citizens, in modern times it is to protect their digital identity as well.
• Cites the various instances where the legislature has already acknowledged the existence of Right to Privacy.
• Section 5(2) of Telegraph Act.
• Section 8 (j) of RTI Act.

RFN: What happened to the privacy bill?

3:30 PM: Arguments rested by Mr.Poovayya. The stage was taken by Ms.Meenakshi Arora

• Cites Wolf Vs. Colorado.
• Rights there were already there before the Constitution came into being were inhered into the Constitution. Just because it is not stated there does not mean that it does not exist. A similar argument was taken by H.R. Khanna J. in A.D.M.Jabalpur case (Habaeus Corpus Case).
• Cites Row Vs. Wade.

04:00 PM: Adjourned. Hearing of Respondents arguments to continue on Tuesday.

Book Review: Gandhi Before India

The history of mankind, if one skims through, is merely a repetitive record of the violence that one perpetrates upon the other. Each era is punctuated with the leaders who defined the course of such events. The garb of nationalism and other paraphernalia associated with it are merely the tools in the hands of these leaders to gather the masses behind them. It was not until the arrival of Gandhi that morality of neither those tools nor the end that is sought to be achieved mattered much. His methods questioned the very basis upon which power was exercised by one over the other. The history of this man is the history of the mankind and its self-discovery of its moral compass. The invention by Gandhi of his methods did not happen over a single day or over a single incident. It was a gradual process of evolution and a self-discovery, a most important part of which happened in the continent of Africa. Mind that this transformation is from being an abject failure as a lawyer in his homeland to being an undisputed leader of the civil resistance is the story that was carried out of Africa. The man that we know as Gandhi in India was discovered by Gandhi himself only in this sojourn. But this history is a relatively immaterial happening for most of his biographers were blithe loathsome to dedicate time and space to this part of his story. The narrative importance of this part of his life can be better understood when we see that Gandhi himself sees South Africa as the place where he discovered the means to achieve the ultimate end of emancipation for his homeland from the colonial rule. It is a startling journey of a shy man from Kathiawar who cannot even deliver a speech on his own without any assistance to an undisputed leader of Indians. The author himself recognises the narrative importance of this part of the story in the early chapters of this book. The success of this book, more than anything else, depends largely upon the narrative fidelity of the author in taking us through the historical forces of causation that made the man that we saw as 'Mahatma' in India.

Of the Self-Discovery and the Horizons Unraveled

There are not many figures in the world history who has been subject to as much analysis as Gandhi has been. How much ever revered, he was still not without his own eccentricities and blemishes. In fact, he had an unheard of audacity to criticise certain such blemishes on his own in his autobiography. But a third man's account of such how he developed such nuances, which made the man that we know of, is a void that the author seeks to fill in, especially of the time that he spent in Africa. It was an evolutionary process in which his ideals were shaped by his interactions and experiences in one of the most racially prejudiced governments of the world. Of all, his relationship with the native Africans best demonstrates this. He was not free from the prevailing prejudice against the native Africans. This was even overtly visible in the actions of the Gandhi. While he was arguing staunchly for the rights of Indians in Africa and against the racially motivated laws he still abided by the prevailing racial hierarchy. Whites at the top and blacks at the bottom with the Indians floating somewhere in between. Rule be pleaded for equal treatment of Indians, he tried to persuade the authorities by arguing that let not the Indians be treated in the way Africans (Kaffirs) are treated. His petitions to the government to relax some rules specifically targeting the Indians shows a certain degree of apologetic approach that he had in his early days towards the imperial rule. Though justified as an incrementalist approach that he wanted to have in a political struggle, this reminds us again of the Gandhi that we are yet to see. However, what baffles one's mind is when such prejudices, if seen in today's terms, clearly comes in conflict with his ability as a leader. The entry into Transvaal in protest against the racial laws and the demands for equality was only sought for 'educated' and 'cultured' Indians.The struggle that he spearheaded is demonstrative of the very conception of civil liberties that we happen to have today. The recurring use of the qualifiers like 'cultured' and 'educated' to proclaim civil rights just shows that the concept of equality as we see it today was not even thought of then. Even Gandhi himself and his ideas were sequestered to this, confining his activism, at least until then, within these parochial notions of equality. It is baffling by today's standards how he was able to mobilise people cutting across populace regardless of the background. In fact, in the last stages of his struggle for political rights in Africa drew a majority of its support from the lower strata of the Indian populace in Africa, like the indentured labourers. It all, however, ended up as an educative experience for him shaping both him and his ideology with which he landed in India. Rather than dictating outlook towards the world, these encounters along with the extended friendship that he had with people from other races enriched his ideas and provided necessary inputs to forge what he ultimately called as 'Satyagraha'. Either consciously or unconsciously he expanded the horizon of his political views from being a conservative Gujarati baniya to a political leader with worldly views in this two decades worth journey.

Of Gandhi- The Private Man 

All through the book one can see two distinctive personalities of the man. Gandhi- The political leader and Gandhi- The unsuitable family man. Though it has always been my principle not to criticise someone on their actions in personal relationships, I must make a special exception for the likes of Gandhi. I deduce reason thus. I find that all his political proclamations were backed by a strong sense of personal integrity in doing what he says and ask others to do. His political reasoning was entirely built upon his moral construct of self and the discipline in leading a principled life.  It is for this very reason he was able to connect with the masses, unlike any other leader until then. He eased himself into the blurry lines that which political leaders like him unconsciously drew between them and the people that they seek to lead by only preaching what he did. There existed no dividing line between his public and private life when he expected even the members of his family to participate in what he did politically. He was unrelenting in his acts of self-discipline. However, this virtuosity of the man cost him much in his interpersonal relationships. Perhaps he himself realised this, evident from his communications to Kasturba (his wife) where at places he indicates the importance of public work in his life and his inability to dedicate time for the family as much as she would want him to. For a person as important as him it is understandable, however, the real problem arose when he imposed his discipline upon other members around him and it consisted of people outside his family as well. Apart from the relatively difficult relationship that he had with Kasturba the constant struggle that he had with his sons would best demonstrate this. Every single letter that he wrote to his sons reeks of unwanted authoritarian language. He expected them to follow everything he wanted them to till the end. He never seems to have left any legitimate choices for them to make or to discover things for themselves. It would sound paradoxical if one were to see that Gandhi himself was made to be the man that he is because he had the freedom to exercise such choices. If one were to see his history it is the very freedom that he denied his sons which provided him with the means to see the world in his own terms. Had his father been alive, he sure would not have allowed him to travel to London to become a barrister. It is in London that he was exposed to the experiences which came in handy in his ascension to the peak. With his sons, to the contrary, he curtailed any and every means for them explore their abilities in their own terms. His letters are always filled with his exasperation on his unmet expectations, which went even to the extent of asking them to control their carnal instincts. Though a successful leader, he is an abject failure as a father.
His relationship with his wife if seen through the lens of modern standards of women's rights and emancipation Gandhi is an unsurprising failure. All through it is an uneasy civil relationship that they established amongst themselves. The physical attraction played role in their young age (regardless of his later day self-criticism on his inability to be at his father's side on his death due to his carnal desires) but the later day compulsions and Gandhi's exposure to the outside world changed the dynamics of the relationship between them. With his increasing proclivity towards public work his expectations from his wife changed. Being an uneducated and conservative woman, Kasturba at the best could do what he asked her to without any consideration her own sense of self and independent choices. All through, her part in the story of Gandhi is merely a devoted wife standing with her husband's choices, an outcrop of conservative Indian ideals thrust upon a woman. Her sojourn into the gaol in Africa and other participation seems purely out of this devotion, not out of her own intellectual exercise. Gandhi's unilateral decision to practice celibacy is one such decision. Though Kasturba accepted unequivocally it was out of the fact that she did not want to bear any more children. All this is a result his inability to see past his perceptions about the individual that Kasturba was. He grew comfortable in a mechanical role of a 'provider' for his family. One of Gandhi's close friend Millie Polak, who lived in the same house as Gandhis along with her husband, conversation with Gandhi explains this clearly. After being with Gandhi family for a while she told Gandhi that 'the East has made the woman the subject of man, she seems to possess no individual life'. Gandhi characteristically replied that 'The East has given her a position of worship' and went on to quote the story of Satyavan-Savitri. This deification is dangerous reasoning that has been cast upon numerous social institutions of oppression to legitimise it and Gandhi continued to use this reasoning even in the many other beliefs of his own to justify his claims.
Even more unique is the friendship that he cultivated around him. As a person, from what we can see through the history, he might even come across as incorrigible and impracticable due to his eccentricities. But if we want to understand what Gandhi was it is those eccentric reasonings that he professed in his personal life which will give us a peek into it. In fact, his friendship to a great extent grew because of people getting attracted to these eccentricities of his. There was a presence of an overwhelming attraction that transcended such nuances that made the man. Gandhi reciprocally was made to be what he was only with their influence both intellectually and in kind. His friends willingly put themselves in the ways of hardship since they unconditionally believed in what Gandhi did. The strongly knit circle of friends that he fostered in Africa cannot be treated in a conventional sense. They got close to him out of sheer attraction for the principles that he stood for, in that way they were early 'followers' of Gandhian principles.  The very experiment of the Tolstoy farm is an example of how people got influenced by him put themselves to the hardship by willingly abandoning the creature comforts that the modern life offered them.
The most notable of his friends during his time in South Africa was Henry Polak, Hermann Kallenbach and Paranjivan Mehta. Both Polak and Kallenbach attached themselves to Gandhi out of sheer attraction to the principles that he espoused and in fact dedicated their life to those principles. They played a dominant role in Gandhi's political ascension in Africa. Paranjivan Mehta saw Gandhi as the saviour who would emancipate India from its colonial rule. He predicted a greater role that would be played by him in the forthcoming political struggle and wanted him to return to India at the earliest possible. In fact, it was him, who called Gandhi a 'Mahatma' for the first time, not Tagore. He went to great extent to help Gandhi in all mean he could, especially in monetary terms.

Of the Man of Eccentricities

The relationship that Gandhi fostered with people around him had a peculiar flavour to it. Just as it is seen with the relationship that he established with the members of his family he might come across as an eccentric individual who is difficult to deal with in a conventional sense. His beliefs and notions were archaic and are not always grounded in science and logic. Digest this statement of Gandhi, about modern medical facilities, if possible: "modern hospitals perpetuate vice, misery and degradation; had there been no hospitals for cure of venereal diseases, there would be less sexual vice amongst us". I can only imagine the negative impact that a thought which is even remotely influenced by this. He was unnecessarily obsessed with the sexual choices of individuals around him. In many communications that he made with his sons and cousins, he chose to enter into a diatribe on celibacy.

Of Gandhi- The Idea

We often tend to forget that the journey is as important as the destination. Mankind as a whole reached a place where it had to do a moral reevaluation of the progress that it made up until then. It required the directions to lead it somewhere where it can create a just word. It came in the form of Gandhi. Just as Victor Hugo said "You can resist an invading army; you cannot resist an idea whose time has come". Gandhi was an idea whose time had come. He questioned the morality of things that our world took for granted until then. More than the man himself, it is his principles that has endured the passage of time and it is to stay relevant for the future too. We are living in a period where the sense of brotherhood amongst fellow humans has been overtaken by parochial considerations of identity. It is for us to rediscover for our own sake the man that was 'Gandhi'.
A picture is sometimes not a product of an painter's mind. It there present somewhere, to be discovered by the painter. The broad strokes of his brush brings it to life for us to see. Ramchandra Guha has painted this for us to see something as important this. By providing a deep insight into the life the man Ramchandra Guha has done a great service for us all to read. This book is a must read for all who wants to know the man that was Gandhi.

Of the Unkept Promises in the Language Policy of India

Formation of a democratic polity is a complex process of negotiations of various interested groups. They bargain amongst themselves over various factors that would form a part of the overall structure of the society. This could very well be a straightforward process in places where no questions are raised over issues of identity and its constituent factors such as religion, language, culture etc. The answers to such questions are taken for granted during the formative stages of a nation. In this sense, we can clearly see India as an anachronism. It belies all traditional notions of national identity and those that hitherto were considered as formative requirements of a nation. It does not possess either a single religion or a culture that anybody can call as a focal point that brings the unity. However, the yet to be resolved issues of language threaten this unique character. Though, for a long time after the anti-hindi agitations of 60’s this has been a simmering issue, it has come to the forefront recently sparking the debates over the language policy of the union government. Uniquely, voices of protests are being raised from new groups apart from the traditional bastion of Tamil Nadu, giving much more credence to the long-standing demands of the supporters of regional languages. The non-hindi speakers’ non-acceptance of the present language policy is well known. However, what still baffles one’s mind is what could have led to the present situation of discontent? Were the drafters of the constitution so oblivious to even the legitimate demands of a major section of people? 
With the passage of time we have a propensity to disassociate ourselves from taking a critical view of things that we revere. The Constituent Assembly is one of such things where we tend to take a puritanical stance and prefer to look at it as an unblemished record taking it to a metaphysical status. The founding ‘fathers’ were seen as a bunch of angels who convened together with a solitary aim of forging the destiny of the millions. We tend to forget that they are not without their own set of nuanced problems and eccentricities. Each carried with them a distinct vision of the future that the country was to step into and the path that would lead towards that envisioned destiny. The discussions held by the assembly upon the language question of the union displayed best how the conflict of reasonings between members translated into a less than an ideal solution to the problem that was posed. Granted that it is not easy to arrive at an acceptable solution when the assembly itself represented an eclectic mix of people from different backgrounds and different set of ideologies, however, it certainly does not absolve them of the shortcomings or rather deliberate compromises that took us here.
The discussions upon this question begun with a fundamental and unassailable assumption amongst many of the members that there must be a single official language for the union and it must be Hindi. The people who formed this group consisted of the members from Hindi speaking constituencies. None from this group was in the mood to concede any ground to make English as a link language, as suggested by other members who hailed from other non-hindi speaking states. The prejudice was so great that when discussions on the language of the assembly itself was held one of the members Seth Govind Das said “I want to tell my brethren from Madras that if after twenty-five years of efforts on the part of Mahatma Gandhi they have not been able to understand Hindustani, the blame lies at their door. It is beyond our patience that because some of our brethren from Madras do not understand Hindustani, English should reign supreme in a Constituent Assembly... assembled to frame a Constitution for a free India”. In the course there was a flurry of suggested amendments to the draft, of which several were so extreme as to even refuse the transitory period for the usage of Hindi to come into force, nor did they feel any necessity to accord a constitutional status to the regional languages as suggested by the Munshi-Ayyangar formula. An assembly of men, who, until then, made everything based upon consensus, broke into an acrimonious dispute over the issue that threatened the very purpose for which they set forth with. It took the united efforts of other moderate members (as Granville Austin calls the members of the assembly who believed that English must perform the role of a link language and must be replaced by Hindi slowly and cautiously) to stall the efforts towards hoisting a linguistic hegemony by the extremist members of the assembly. More than what the record indicates the solution that was arrived was due to the intense background negotiations held amongst the party members, since it was the earnest belief of the members that all outcomes must be based upon mutual consensus. However, it would be funny to know that the bitterness that the language question caused would have derailed this unwritten rule of the assembly. When a voting was taken to decide upon the official numerals between Hindi and international numerals it was passed in favour of hindi numerals by a slender margin of one vote. Sensing that such an important question cannot be imposed upon others on wafer thin majority Nehru pleaded against it. It was at this stage the Munshi-Ayyangar formula was proposed as a form of compromise. This formula eschewed the very concept of a national language and in its place proposed to have official language as against the wishes of pro-hindi agitators within the assembly. Apart from this it also suggested for an interim measure to use English as a language of the union in addition to Hindi for a period of 15 years, which can be further extended in case of need amongst other measures. It was an overwhelming concessions from both sides of the camp that resulted in Part XVII of the Constitution that deals with the official language.
All through one can sense an overwhelming sense of urgency with which the question was dealt with by the assembly. There was a lingering anxiety to ensure that the language issue does not topple the larger project of constitution that was standing in front of the assembly. It would not be an exaggeration to state that this anxiety has resulted in a less than optimal solution for the issue, for it curtailed the legitimate aspirations of large sections of the populace to be recognised as a part of the democratic polity. It is plainly visible that the assembly in order to deal with its inability to resolve the issue merely provided for a temporary compromise to carry forward its functions without hindrance. They merely postponed the righteous answer due to internal political compulsions and it was a sincere belief on the part of its members that the issue would be resolved in the future in a composite manner carrying forward the ethos of inclusion and equality.
However, the future is yet to resolve for itself the issue. To the contrary there are only attempts to impose Hindi upon other non-native speakers at the cost of their own language and the resultant discrimination is a reneged promise upon which this union still stands. The recent recommendations by the Committee of Parliament on Official Language is an example of dastardly incursions on the freedom of choice to speak and act by a non-hindi speaker. The very fact that such recommendations were assented to by the President without any further public discussion demonstrates this discrimination. In fact few of the recommendations goes against the express bar under Article 343 (3) of the Constitution which requires the commission to take into consideration the just claims and the interests of persons belonging to the non-Hindi speaking areas in regard to the public services. We may still be the only country where there exists no official translation of the Constitution itself in the regional languages. More than being inclusive the vision of a nation with a single language as its identity yet continues to be a festering wound for the majority of regional language speakers. In fact the monist vision of the nation, in terms of language, has been internalised by the Hindi speaking populace of the country that most are not able to think in any other terms.
A constitution cannot merely be relegated to a formal documentation of the governance structure for a nation. It reflects the collective conscience of the people who decided to provide for them a national identity. An identity that is unique and is a remnant of the forces of historical causation. For a country like India it entails the collective struggle for self-governance that transcended the parochial considerations of identity of all sorts, which however never failed to represent them equally. The civil struggle that resulted in the nationhood always possessed the morality and righteousness only imbibing within itself the principles of democratic pluralism. The Constitution of India thus a physical manifestation of the principles that the struggle represented. Call it the constitutional morality or whatever one may feel, but the apparent compromise that the assembly provided for the language question does not do justice to it. The recent move to print devanagari numerals in the latest 500 and 1000 rupees notes is one such move, whose legality otherwise is also questionable. It yet remains an unfulfilled promise for the regional languages to be accorded the equal treatment that they deserve. Fundamental to this is the recognition of the idea that a nation does not necessarily require a single language as its formative identity. From being the grandest of political experiment to a constitutional anachronism it is time for us evolve to become a inclusivist ideal that the world must strive for. Arriving at an equitable solution to the language question is an important step forward in this.

Book Review: Neither Roses Nor Thorns

If we look at the post-independence history of India one can easily see the tumultuous times that this young nation has gone through to reach the stage where it can call itself a robust democracy. Littered with doubts, the journey was always on the verge of derailment. A few gentlemen of extraordinary grit and calibre saved it, however. With most of those men, as is usual with the history, the importance of their actions and the men themselves have gone unnoticed during their times, except a gifted few. Justice H.R.Khanna is one such man who was celebrated in his times and continues to be a venerated personality of this order. His was the lonely voice that sung the triumph of democracy in testing times. To arrive at a decision with wide ramification to both him personally and to the moral fabric that made the country like India takes the kind of courage that is rarely encountered in the history. What makes the man that he is? The answer comes straight from the horse's mouth in 'Neither Roses Nor Thorns'. The narration starts with his childhood and traces it to his ascension as the judge of the highest court of India. The best part of this journey is that, more than the man himself, it is the importance that he gives for those people who partook the burden of the journey with him. Littered with hear warming anecdotes of such men this book just shows the immense importance that this man gives to others that surrounded him in his life, how much ever small they may be. In spite of being a well-written prose there are significant shortcomings that I felt made the book somewhat of a disappointment. The book does not carry the much-required depth that one would expect from it. The lack of depth makes one to think that this is a half-hearted attempt by the author to write an autobiography. For a towering personality that he is, this book has all the possibilities to set the golden standard in writing, since his life offered immense scope for the grandeur in such a scale. In fact, I was not able to help myself but to draw comparisons with the “Roses in December by M.C.Chagla” (The greatest autobiography ever written in my opinion) against which this book fails in every possible aspect of writing. If my guess is right, this is the mistake of editor who was not able to bring the best out of the author. Another major problem that I encountered in reading this book is that it does not make any chronological sense. At places, it jumbles within the overall timeline without much making sense or purpose confusing the reader. Granted! A non-linear narrative is a style of writing. But it must go organically with the story that the writer intends to convey to the reader, which is missing here.
I was utterly disappointed with the book. However, few stray snippets of information about people and incidents qualifies this book to be a read worth one time. There went the unsung song of one of the greatest composers of the democracy called India.

Enforcement of Foreign Awards and Regulatory Intervention: The Case of Tata-Docomo

It created flutters would be an understatement. The high-profile international arbitration between Tata Sons and Docomo was a head turner from the day that the disputes arose between the parties to the failed venture. After the severely contested proceedings before the international arbitral tribunal, where Tata Sons lost the case, the matter came for enforcement before the Delhi High Court. An unlikely intervention against the enforcement was made by the Reserve Bank of India (RBI) before the High Court. Initially, the enforcement of the award was opposed by Tata Sons on the grounds of inability to perform without special permission from RBI under the Foreign Exchange Management Act, RBI opposed the enforcement on the grounds of illegality that would result if the award is enforced since they would contravene the several prohibitions prescribed under the FEMA. This is the first known instance where a regulator intervened in the enforcement of an arbitration award on the grounds of illegality, raising fundamental questions about the propriety of an intervention by a third party in enforcement proceedings. In the meanwhile, a joint application under Order XXIII Rule 3 was filed by Tata and Docomo seeking to place on record the settlement agreement arrived at amongst them. The settlement agreement too subsequently came to be opposed by the RBI on the grounds of illegality under Section 23 of Contract Act and the express bar against any settlement agreement in a execution proceedings under Order XXIII Rule 4 of CPC.The RBI's opposition hinged upon the following grounds:

1. The transaction is in contravention to the FEMA: Clause 5.7.2, the put option clause that created the right in favour of Docomo to have an assured amount of returns on its investment if it wishes to exercise the right vested with it under the clause was seen by RBI in violation of Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000.
2. The award does not consider the special permission of RBI to carry out such transactions: It was the case of RBI that for carrying out certain category of transactions are defined under the Foreign Exchange and Management Act, 1999 and the same is plenary in all respects unless anything to the contrary stands stated in the Act. The transaction that was sought to be carried out was seen as a Capital Account transaction that is disguised as a current account transaction. As per Section 2 (e) of FEMA, mere alteration in the assets/liabilities of either a resident or a non-resident entity constitutes a capital account transaction.
3. The transaction, in the form in which it is sought to be enforced, is a colourable transaction: According to RBI, the manner in which the SHA is structured would necessarily result in contravention of FEMA provisions. The portrayal of the transaction as a current account transaction cannot be accepted simply because the essential result would remain the same. The ultimate result of the transaction is the transfer of shares by Docomo to Tata for an agreed consideration under the share holders agreement. This is sufficient for the transaction to fall under the definition of a capital account transaction.

The arguments on the merits aside, RBI all through has never been make out sufficient case or itself on the question of maintainability of such an intervention at all by an entity who is neither a party to the shareholders agreement under dispute nor a party to the process of arbitration. This attains more significance since the important cause of intervention by RBI, as it stated, is that the present case involves interpretation of the provisions of FEMA and other regulations governing foreign exchange. As a regulator it sought to justify its intervention to protect its interests by aiding the court in arriving at the right interpretation of the statutory provisions. This is a dangerous precedence to be set, if such an intervention is allowed. If regulatory bodies across the board intervened on the grounds of the case involving interpretation of statutory provisions, over which they have vested interests, or that the arbitral tribunal has arrived at a wrong conclusion over its interpretation, it would be nigh well impossible for any arbitral award to attain the sanctity of the decree without the express authorisation of such bodies. It would deal a death blow to the whole ecosystem of arbitration. The very concept of arbitration is to resolve dispute amongst two private parties without any intervention from an alien third party entity would stand compromised. The High Court has rightly rejected the intervention made by RBI. 

The objections of RBI, under Order XXIII Rule 4, were also ruled against it holding that nothing can prevent the parties from entering into a compromise regardless of nature of proceedings. Even otherwise, the court found that the objections of RBI, over the illegality of the consent terms arrived at between Tata and Docomo, were not justified.

Another interesting question that this decision has answered is whether RBI would be bound by an arbitral award that interprets the scope of its powers or not. Answering in positive, the judgement states that the conclusion arrived at in the award would be binding on RBI just as it would any other entity, since, under Section 36 of the Arbitration Act an award automatically becomes the decree of the court and is enforced as such under the Civil Procedure Code. However, it must be noted that it would be binding on RBI only for those two parties. It can neither be a precedent nor can it be binding on RBI for any other transaction of similar nature. The judgement is also careful enough to note that this would yet not permit any intervention by RBI, since there is no statutory provision which expressly provides for it.

The judgment is a watershed moment in the field of international arbitration in India, since it has effectively put to rest the ambiguity that prevailed over the control of regulatory bodies in enforcement of foreign arbitral awards. Any contrary decision would have resulted in a situation where the enforcement proceedings of foreign awards would be subject to the whimsical objections of regulatory bodies such as RBI.

Disclosure: I assisted the court on behalf of Reserve Bank of India in this matter.

Secularism Under Section 123 (3) of the Representation of Peoples Act

The Supreme Court of India recently in a very short of period heard and delivered several judgements of wide import, several of which were heard by a large bench of seven judges. One of those judgements involving the usage of 'religion' to appeal to the voters by a candidate invited much public and media attention. The decision of the court was much lauded for its progressive interpretation of Section 123 (3) of the Representation of Peoples Act, both by the media and public at large. In a political landscape fraught with communalism and other narrow-minded considerations this seen as a welcome move to cleanse the democratic elections to ensure the survival of constitutional ideals. In all this hubris something very fundamental about this judgement has gone unnoticed by everyone. The gravity of this misconception is too large to be brushed aside easily. Though on the face of it the judgement comes out as a progressive stance taken by the judiciary towards ensuring the elections to be free of parochial sectarian considerations, the overall outcome of the interpretation offered by the Court proves to be diametrically an opposite one at that. The jurisprudential error committed have widespread ramifications, not merely confined to the corrupt electoral practices that it sought to adjudicate. The spillover effect that this judgement can have over other legitimate democratic aspirations that find its way through freedom of speech and expression is the main concern that I wish to address here.
The fundamental issue that arose for the consideration is the scope and purport of section 123(3) of the representation of people act, more specifically the scope and application of the word "his" as used in the section.

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

Section 123 of the Representation of People Act, 1951 provides for penal actions against corrupt practices that are defined under the section. Subsection 3 of the provision defines any action by the candidate or his electoral agent using religion, race, caste, community or language to seek votes for himself or using it to the detriment of another candidate. A seemingly straightforward definition, however, gave rise to confusion on whether the appeals made is deemed to be a corrupt practise under the section only when it is of the religion to which the candidate belongs or it is a wholesale ban against the use of religion to seek the favour of the voters. The issue before the court was to decide whether it is a corrupt practice to use religion in all its forms to appeal to the voter or it must be confined only to those appeals made by a candidate on the ground of his religion. The judgement of the majority, after going through the usual rigmarole of framer's intent, the legislative history and other paraphernalia, decided in favour of an interpretation that gave the section widest possible import resulting in a blanket prohibition on the use of religion in election. The dissenting judgement assumes much significance for it espouses correct stand in this regard.
Though the intention behind the prohibition of using religion, either to seek the favour or to the detriment of another candidate is laudable, the mechanism devised should not be so restrictive as to have detrimental effect upon other constitutionally guaranteed rights of the citizens. While the fact remains that the broad and purposive interpretation used by the Supreme Court to justify its conclusion to give a sweeping effect to the provision itself suffers from serious defects.
In any democracy the process of election is a democratic negotiation between competing groups of interests to have their views represented in the corridors of power. A minority, be it a language or a religion, might want to voice their concern against any issue that threatens their existence, for which elections are one of the best tool provided under constitution. It is through the elections they are given a possibility to voice their views either by electing someone as their representative or by pressurising the political parties to consider their views. The conclusion of the majority, in its aim to thwart unhealthy influence of religion in elections, has completely ignored the need for sufficient latitude in the interpretation of the provision so that such legitimate concerns are not curtailed. In this light, the overt reliance of the majority view upon the purposive interpretation is not right, since the inherent conflict that the resultant interpretation has with certain fundamental rights under Constitution of India. Surprisingly the majority has brushed this aside lightly, citing Jamuna Prasad Mukhariya vs. Lachhi Ram (1955) 1 SCR 608, where the similar arguments raised upon objections raised as against Article 19(1)(a) were rejected by the bench. Being a bench of seven judges, which is a rarity on its own, this was a golden opportunity missed by the court to reverse it. In the process the subtle line of difference that must be drawn between its aim to secularise the electoral process and protecting the rights like freedom of speech and expression has been lost.
What is surprising is the fact that the past decisions of the Supreme Court, which were considered and rejected in the present case, offers the apt perspective in this regard. The Supreme Court, in the case of Jagdev Singh Sidhanti v. Pratap Singh Daulta (1964) 6 SCR 750, perfectly draws the subtle distinction between using such parochial considerations for ulterior motives and a legitimate use as part of electoral process that I am advocating here. The relevant passage is extracted here

“The corrupt practice defined by clause (3) of Section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of a candidate’s language. It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of Section 100 read with Section l23(3). Therefore it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where, however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.” [Emphasis Supplied]

The Dissent

In all those rejoicing and unexpected attention paid to the majority view is the feeble voice of the dissenting judges, which was penned by Justice Dhananjay Chandrachud. The dissent strikes a distinct note in stark contrast with the majority view by providing the appropriate context in which the issue must be adjudicated to begin with. In a multicultural society like India it is impossible to divorce social institutions like religion, culture, language and other formative identities while considering such issues. Above all, if one looks at the Constitution, unlike other foundational documents around the world, it is these elements that are sought to be protected in some form or the other. This is in spite of the fact that its ultimate aim is to promote secular fabric for the society without such differences. The drafters of the constitution recognised this inner conflict but knew well that for any member of the society to become a part of the society it is vital to recognise and protect legitimate aspirations of his identity, be it cultural, religious or linguistic. This assurance by the state can only be ensured when they are given protection from any encroachment upon its safe practice while also providing a chance for them to voice their concern. It also includes the opportunity for them to be a part of the governing structure of the society, which can but be a result of social mobilisation. An oppressed class of citizenry can be mobilized only on those terms upon which they fell oppressed in the process of election; it would be silly to suggest anything otherwise. The fundamental rights in all its form were made with the sole intent of providing this to all the members of the society, in spite of the apparent conflict that it could cause with the constitutional ideals of secularism amongst others, resulting in forging of an unique constitutional identity. Reading it independent of this forged identity would render it to mere abstraction. This has been rightly pointed out in the dissent in the following words

"Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy."

The majority view has committed a grievous error in extending its misconceived notions of secularism here. The concept of secularism, at least in the Indian context, cannot be read to mean a society that is devoid of institutions and differences like religion and language. Here, it would mean a cohesion that coexists with such differences. It is not an anachronism in a democracy as it is portrayed in this decision.
This unfortunate decision is another addition to the series of regressive judgements that the Supreme Court has delivered in the recent times. Being a judgement delivered by a large of bench of seven judges it is going to prevail for a long time in the future. However, I put my belief upon the resilience of the Supreme Court to get back again, given its glorious history.