Substantive and Procedural Reforms in the Supreme Court......by Fali S Nariman

Substantive and Procedural Reforms in the Supreme Court
by Fali S Nariman

(Full text of a lecture on judicial reforms delivered by Mr Fali Nariman on July 20, 2004

Substantive and Procedural Reforms in the Supreme Court

Lecture series organised by the Supreme Court Bar Association

Inaugural lecture delivered by Mr. Fali S. Nariman* on Tuesday 20th July 2004 at the Auditorium of the Indian Society of International Law Bhagwan Das Road, New Delhi.)

This new series of lectures is being inaugurated today by the Chief Justice of India and the subject is “Substantive and Procedural Reforms in the Supreme Court”: a title deliberately chosen by our newly elected and popular President and Committee members of the Supreme Court Bar Association.

In each one of the Lectures, Senior Advocates who regularly practise in this Court will be required to offer suggestions, and one of the Justices of the Supreme Court will always preside at each Lecture. To me, this sounds quite ominous.

It will be recalled that in the 1960’s, Chairman Mao Tse Tung invited leading lawyers and intellectuals in his country to Beijing to comment on and criticise his policies. “Let a hundred flowers bloom” he had said; and his audience were taken in by the attractive expression. They then expounded on what was wrong with the system of Government in China. The result, as you all know, was the Cultural Revolution, when the lawyers who complained were the first to be exterminated!

I am sure my good friend, Praveen Parekh has been inspired by only the noblest of motives, and it must have been farthest from his mind to make us all unpopular with our Judges — especially when we tell them how to run their own Court!

But happily this series is being inaugurated not by Chairman Mao but by the distinguished Head of the Judicial Family. And I feel free to express my frank views, even at the risk of incurring judicial displeasure.

Let me begin with few general remarks. One aspect of Judicial Governance that has dismayed many people is a lack of consistency. Our Constitution is so structured as to ensure judicial consistency at all Court levels, except the highest. The subordinate Courts in every State are bound by the decisions of the High Courts – each High Court in turn is bound to follow the law declared by the Supreme Court. (Article 141).

But the Supreme Court consists of individual justices who don’t all think alike — and are not averse to saying so. Emerson once said that “A foolish consistency is the hobgoblin of little minds”. Even the fiercest critics of our highest Court cannot accuse its incumbents of having “little minds”. And that’s where the trouble begins. How are 25 justices drawn from different parts of the country expected to be consistent — not merely with themselves but with a continuing body of Justices whom they have never known, and whose thoughts and aspirations they do not always share? The problem of judicial inconsistency is a human one — like the judicial process itself.

One of the difficulties about this matter of judging is that it bristles with human problems. It deals with events which are unsavoury, and with clashes of personality thrown up by some of the momentous decisions — such as Kesavananda Bharati (1973), a case which split the Court down the middle. It shook the institution as no other case has done. I believe the Court has never been the same since. In that somewhat confused but epochal decision rendered in 1973 almost every single judge spoke for himself — and did not look kindly at his colleague who spoke differently. The case presented the sorry spectacle of a Bench of thirteen judges who could not agree (simply because they would not agree) as to what the majority had said! The final order which you will find on the last page of 1973 Supp. SCR (at page 1002) was signed by only 9 Judges out of a total of 13. At that time some wiseacre — paraphrasing Kipling — observed, “If you can keep your head about you when all others are losing theirs, may be you do not realise the seriousness of the situation! ”

Sociologists have ascribed the reason for uncertainty in the law in the highest Court of the Land to (what they describe as) “the plumbed depths of judicial psychology” — ie, the tendency of apex Court judges to overrule!

Judges of the highest Court in almost every country produce a recurrent proportion of successful appeals. The sub-conscious motivation is said to be role-justification. I am not a sociologist and dare not plumb the depths of ‘judicial psychology’. Suffice it to draw attention to a stark fact: that out of the decisions of the High Courts in the country which are admitted in the Supreme Court either by way of a certificate granted by the High Court or by way of special leave under Article 136, a large percentage are successful. This is also true elsewhere. That a final appellate court allows a substantial percentage of appeals — in every country — reflects a truism: that judges are decision-makers and that law itself, notwithstanding the legal ethic of certainty, is, very often, a matter of personal opinion. Uncertainty in the law is then a by-product of the Law itself.

And what about the rule of stare decisis — ie, the rule of judicial precedent?

Judgments in recent times indicate that many of our Justices would prefer to loosen the shackles of stare decisis. Their Lordships are in distinguished company. Mr. Justice Cardozo once criticized judges enslaved by precedent by comparing them to a type of medical practitioner “who would rather that the patient died by rule than lived contrary to it”. Long ago Lord Radcliff expressed the view (extra-judicially, of course) that “if a Judge of reasonable strength of mind thought a particular precedent was wrong, he must be a great fool if he could not get around it.”

In that excellent work entitled “Final Appeal — a study of the House of Lords in its judicial capacity”, Mr. Louis Bloom-Cooper says (at page 74) that the common law cannot escape from its precedents any more than an individual can deny his own ancestry. He however added that an individual tribunal can in specific instances “often disregard the more pernicious manifestations of judicial ancestor-worship”. Our reports — especially the more recent ones — abound with instances of such “disregard of judicial ancestor-worship”. This is all part of the structure of judicial governance.

With these known inherent defects in the system of Judicial Governance, let me offer a few suggestions.

My first suggestion for reform is inspired by an article I read in the summer holidays. It is by a man called Joseph Epstein. He has drawn attention to a fact of modern life — namely that the attention span of human beings is fast shrinking. It is perhaps due to the influence of television: news, comments and sound bites can be digested by the public only if they take no more than 60 seconds. People have simply lost all patience for lengthy dissertation. And believe me they have also lost all patience and tolerance for long speeches and long judgments.

The first reform I would recommend would be a self-imposed rule for both lawyers and judges:

(1) For lawyers we must speak less (and only after intense preparation). As to how well prepared one can be, let me cite one example, a story related to me by my good friend Mr. Srinivas Murthy of Hyderabad. He has been practicing at the Bar almost as long as I have and we have frequently appeared together in the Supreme Court. When my wife and I recently attended the Convocation at the NALSAR University of Law, he called on us in the evening and told me something Justice Subba Rao (a relative of his) had told him: Somewhere in the mid-1960s, in a case presided over by Justice Ganjendragadkar (sitting with him were Justice Subba Rao and Justice Bachawat) that great Advocate Vishwanath Sastri (his portrait hangs in the Advocate’s Lounge) was arguing in his inimitable manner, when Justice Bachawat reminded him that the proposition he was then canvassing for was directly contrary to what the Privy Council had said in a case which Justice Bachawat recollected and mentioned. Pat came the reply from Vishwanath Sastri:

“Yes, My Lord, and that is the only decision of the Privy Council that has been adversely commented on in Halsbury’s Laws of England in Volume such and such.”

This was too much for Justice Gajendragadkar. He said, “Let us suspend the proceedings — send for the decision in the Privy Council, and send for the volume of Halsbury mentioned by Mr.Sastri.” The books were brought and, sure enough, there was the judgment of the Privy Council as Justice Bachawat had recollected; and, equally surely, there was a passage in Halsburys Laws of England which commented adversely on the opinion of the Privy Council.[1]

(2) As for Judges I would respectfully suggest they write less after carefully pondering over what is drafted/or dictated — conscious of the mandate of the Constitution that whatever a Judge of the Supreme Court says is regarded by one and all as the law of the land.

It was said of the great Justice Oliver Wendell Holmes that he used to write his Opinions standing all the while. When he got tired of standing he knew how his readers would feel when they read what he had written.

The judgments of the Supreme Court are far too lengthy and sometimes difficult to understand — if for no other reason but simply because the Judges have no time to write briefly and precisely. You all remember the confession of the man who wrote long letters: “I would have written a shorter one,” he said, “if only I had more time.”

But if law is to be meaningful, and to be easily understood, judges must find more time to write more briefly, more precisely, with a consciousness that whatever is pronounced in a judgment or order of the highest Court is read very closely by lawyers and judges throughout the land.

Besides, in many cases that come up for decision, in this Court it is not necessary to lay down any law: they can be, and often are, disposed off on the facts of the case. Then why on earth are they reported? The moment a judgment comes into print the High Courts and Subordinate Courts read into the words that are written far more than the judges ever intended.

I would suggest, Chief Justice, that in order to save judicial time in a three-tier Court system, it is essential that the Supreme Court itself undertake the task of separating the wheat from the chaff. Please acknowledge, by a Court order, that it is not every pronouncement of the Supreme Court that declares the law. Remember, it is only the Supreme Court that can say so. For this too there is a precedent. In my early days in the Bombay Bar, the first page of every typed judgment was a format page which had printed the following in the left hand corner:

1. “Is the judgment to be reported”? (Yes/No)
2. “Is the judgment to be shown to Newspapers”? (Yes/No).

Perhaps with Article 19(1)(a) the latter is not possible. But it is for the Supreme Court to say which of their judgments and orders declare the law and which do not. Every pronouncement of the highest Court whether in form of a two-line order or otherwise is assiduously picked up by the newspapers and by the Law Reports and printed, and, once printed, they acquire a potency far greater than ever intended.

There is one other aspect. I do not — I dare not — presume to tell Judges of the Highest Court how to write judgments, because each one has his or her own technique and his or her own style. But I would commend something I heard Sir Ninian Stephen say in a lecture in Sydney many years ago. He was one of Australia’s most distinguished Chief Justices (later also its Governor General). He said that judgments are delivered in cases mainly for the parties to the cause, but sometimes also for expounding the law where it needed to be expounded; and in this regard it was essential that the judgment be clear and be widely understood. For this purpose he suggested that Judges themselves should add an opening paragraph to their judgments explaining in a few words what the case was all about and what was decided.

If we read the judgments of the US Supreme Court we inevitably find they have adopted this role-model — the first paragraph briefly explains what the case is about, from which Court it has been brought and whether the Supreme Court of the U.S. affirms or set asides the judgment. This is something that could well be introduced in important judgments that are delivered by this Court — especially when sitting in a Constitution Bench.

Let us be frank — the law laid down in Bench decisions of two judges is quite often hopelessly inconsistent with some other Bench decision of two judges; and precious judicial time is wasted in the High Courts and in the Supreme Court trying to reconcile them.

I am all for a three-Judge Bench hearing all matters in the highest Court. But I do know that in a regime where every one must have his last chance to approach the country’s highest court, (which I believe is a great safeguard for all citizens) it is just not possible to have benches of three judges to hear all matters — otherwise there would be innumerable delays.

If benches of two judges must hear SLPs, the order pronounced must never be reckoned as laying down any law — but this only the Supreme Court can say.

In fact I would respectfully suggest that decisions of benches of two Judges even in final hearings must never be regarded as laying down any binding law for the purposes of Article 141, but only apply inter-party. Some of the early judgments of the U.S. Supreme Court were disrespectfully characterised by newspapers in the United States as having the same validity as railway tickets: stamped “valid for single journey only”.
It is only decision of Benches of three or more judges that can be truly said to authoritatively lay down binding law, and that for two reasons:

1. Benches of two Judges, in my experience, often take the line of least resistance: A two-Judge Bench is quite often what I would call a “compromise Bench”, no good at all for authoritatively laying down the law for the guidance of Courts in the Country.
2. A three-judge Bench would give greater room for the individual justices to express their views regardless of whether or not colleagues agree, and then the majority decision will be the binding one.

I can never forget what Chief Justice Chandrachud once told me in the Needle Industries case, where vexed questions of Company Law were raised. It was way back in the 1980’s. The case came up for adjudication for a second time before a three-Judge Bench of the Supreme Court in 1981. In the first round it was heard by a Bench of two Judges, who, after having listened to arguments for over two weeks, reserved judgment. And after ten months, the Bench said that the matter should be placed before a larger Bench — obviously because the two Judges could not agree. An impressive Bench of three Justices was then constituted: Chief Justice Chandrachud, Justice Bhagwati and Justice Venkataramiah. When this Bench commenced hearing, the Chief Justice was quite angry with me. He said, “You, Mr Nariman, you should have told the Bench that this was not a matter for two Judges but for a Bench of three Judges — and this would have saved precious judicial time.”

He was right, and this is what I now do whenever I feel the occasion demands a larger Bench — but not always successfully!

Having said all this, let me set the record straight: I do not for one moment believe that the ample jurisdiction of this Court under Article 136 should ever be curtailed. Article 136 is the searchlight provision in our Constitution: searching into and rectifying injustices in individual cases. Despite great inconvenience to the justices where they have to read each and every matter, of which not more than 20 or 25% are ultimately admitted, Article 136 is (for me) a most precious justice jurisdiction. In the thirty-odd years that I have continuously practiced in this Court, I am convinced that that jurisdiction is a very important safeguard for citizens of this country, and I can tell you all that the confidence that is inspired throughout the country by your exercising this jurisdiction (or declining to exercise it after due consideration) is truly phenomenonal. If law is occasionally laid down wrongly, this can be corrected. But it is the rare perception of experienced Judges that picks up injustices in the long rigmarole of the SLPs; which injustices are ultimately rectified and remedied by the Highest Court. I, for one, would give full marks to the Supreme Court for its handling of SLPs. I wish more people and more politicians visit the Supreme Court on Mondays and Fridays to see for themselves the enormous work the Judges do.

My third suggestion concerns the tenure and age of retirement of Judges of the Higher Judiciary.

The way to avoid the mad race of High Court Judges to get on the Supreme Court — competing with each other, sometimes most unfairly — is to restore the position of the Supreme Court as a persuader: to persuade High Court Judges to join the Judges of the apex Court.

There should be no sense of elevation to the highest Court (“promotion” is a service word and I avoid it). The High Court Judge should be persuaded to join the Supreme Court, not be “elevated” to it. This could only be achieved by increasing the age of retirement of High Court Judges from 62 years as at present and raising it to approximate to the age of retirement of Supreme Court Judges (65 years).

I have recently introduced a Private Member’s Bill in the Rajya Sabha, which, if leave be given by the House to introduce it, will provoke scope for a discussion of this matter. It is titled “The Constitution (One Hundred And Third Amendment) Bill, 2004”. And, hopefully, as a Private Member’s Bill is supposed to do, it will evoke a response from the Treasury Benches which, in effect, means the Law Minister.

I am against the present selection of High Court and Supreme Court Judges exclusively by a Collegiate of five of the seniormost Judges of the Supreme Court because I believe that this tends to become a closed-club selection. That is a complaint often heard in whispers outside the corridors of the Supreme Court, Chief Justice, and you must be made aware of it.

In the first place, I see no reason why all the judges in the highest Court should not be consulted when a proposal is made for appointment of a High Court Judge or an eminent advocate as a Judge of the Supreme Court. I respectfully suggest that the closed circuit network of five Judges should be disbanded — mere seniority of the Judges may certainly mean more wisdom — but, if there is to be a collegial appointment (as under the present system), it must be after a consensus from amongst all the Judges of the Supreme Court.

Let me make one thing clear: Disciplining of High Court Judges (ie, all measures short of impeachment) in my view must be left entirely to the Judges of the Highest Court — no interference by anyone, neither the Bar nor Bar Associations nor politicians. And this does not require any special law: the CJI as Head of the Judicial Family has ample means of persuasion at his command to do this.

But on appointment of Judges to this Court, however, there must be more input from outside the select coterie of five Judges. It is not that since 1993 good Judges are not appointed to the Supreme Court under the present system, but sometimes better Judges are overlooked or ignored — often it is those who will not call on, or kowtow to, the Judges of the highest Court.

Without mincing words let me illustrate this by an instance from Bombay itself. I have said this before and I have written about this before as well. I wish to say it again in the presence of the Chief Justice of India. And without naming names, instances are not worth mentioning.

Justice Pendse, who retired some years ago, is now busy arbitrating with great success. One Bombay newspaper last week said that his income in the year after he retired was a whopping Rs.1.30 crores. He was truly an outstanding Judge who disposed off cases with the same speed and efficiency as did the late Justice JC Shah.

Justice Manoj Kumar Mukherjee when he was in the Supreme Court repeatedly told me when I mentioned the instance of Justice Pendse (and asked that he be brought here) that Pendse was in his opinion the best High Court Judge in the country. I told him to please mention this to the Chief Justice. He assured me that he had done so.

Yet, I regret to say that Pendse was successfully prevented from coming to this Court — for two reasons:

First, because he was a “naughty boy” since when he was asked to go from Bombay to Karnataka as Chief Justice he declined (for personal reasons), incurring the displeasure of the then Chief Justice of India; and

Second, because of the “Bombay Lobby” against him. By the Bombay Lobby I mean the Judges of Bombay in the Supreme Court. This phenomenon was and is regrettable — we must avoid it.

The Chief Justice can always ask his colleagues from Calcutta, Bombay or Allahabad or other High Courts as to the merit or demerit of someone from that High Court — but my plea is don’t always rely on such assessment. It can be warped or tainted. Sometimes when you know a person too well you can give an exaggerated opinion of some of his/her qualities — good or bad!

Another aspect I would like to advert to is the acute sensitivity of this Court to appointment of only retired Judges to Tribunals. This is often regarded by critical members of the public as “the Judges looking after their own”.

I believe that it is good and essential to have the Supreme Court to oversee all actions of Government, whether or not first vetted by Commissions or Tribunals, but I do believe sometimes our Court does go too far.

When faced with the appointment by the former Government of the Commerce Secretary as Chairman of the newly constituted Competition Commission under the then recently enacted Competition Act, the former Chief Justice of India did not enquire as to his technical qualifications for the job but was only reported to have made the following remarks:

It is a direct encroachment on judicial functioning. It is a direct onslaught on the high courts. A few years later, the government may replace all the 26 judges of the Supreme Court with bureaucrats. You must restrain your hand.”

The Government complied — it cancelled the proficient and technically qualified Secretary’s appointment. The result has been that the Competition Act passed by both Houses of Parliament, and assented to by the President has remained a dead letter for more than a year now. And Government is simply too embarrassed to do anything about it.

The Court — the High Courts, or the Supreme Court — can never be excluded under our Constitution: that is what the Constitution itself ordains. But in a regime of less controls where the government has to play the role of the facilitator, when providing a regulatory mechanism, it is important that the regulator should be a technocrat.

In the United Kingdom, from where we take our judicial system, the Chairman of the Commission for technological convergence is not a Judge, but a renowned economist. And the Competition Commission in the United Kingdom is headed again not by a Judge but by a distinguished Queen’s Counsel, who has special expertise in this particular field. I would request the Hon’ble Judges of our Court to please appreciate that in this technological age, the order of the day is “greater and greater expertise”.

I believe that the fact that there is no judge on the Competition Commission does not vitiate its composition so long as it does not directly engage in adjudicatory functions. I have proposed that when the Commission has to discharge such functions, the case could be referred to an appellate body presided over by a Judge. The Competition Act may require amendment and some fine-tuning. But as drafted it did not (I humbly submit) justify the somewhat exaggerated overreaction just quoted.

Why cannot the Supreme Court of India oversee a decision of a Tribunal or Commission manned only by technocrats? Why must they only oversee a decision of a tribunal manned by Judges? Why should a tribunal or commission set up under a statute be required to be manned by Judges? After all, arbitral awards of non-Judges are scrutinised by the higher Judiciary — why can decisions of Tribunals manned by persons who have never been judges, not be similarly scrutinised and vetted?

I would respectfully submit that the “dignity” of this Court is in no way offended by it being required to oversee a decision of a tribunal manned only by non-legal experts. In fact, just as the technocrat would learn and must learn something from the Judges, the Judges too would learn and must learn something from the technocrats.

One last plea, Chief Justice: It is because of your forthrightness and your anxiety to improve the system that this series of lectures have been put in place. Speakers after me from week to week or from month to month will make their own suggestions.

But suggestions for reforms — substantive and procedural — in the Supreme Court is not the preserve only of Judges and lawyers. Suggestions can be made and must be made also by members of the public and should be listened to, because both the judiciary and the profession exist for the community at large and we must harken to the criticism or complaints of that community.

They are voiced frequently by journalists and by the electronic media: I would beseech you, Chief Justice, that wide as are the powers of contempt, initiation of contempt proceedings for scandalizing the Court should only emanate from a Bench presided over by the Chief Justice.
Civil contempt is different: it is a necessary power to ensure compliance with orders passed by the Supreme Court or compel performance of undertakings given by party-litigants to this Court. But the jurisdiction in what is known as criminal contempt — contempt for utterances and publications that are said to undermine the judiciary and judicial administration — Courts must proceed with caution. Howsoever provoked the Single Judge or a Bench of two or three Judges may be, it should be administratively provided that the contempt occasioned by “scandalizing” the Court must only be initiated in the Chief Justice’s Court — both in the Supreme Court and in the High Courts. This would ensure consistency and would breed a new sense of confidence.

Let me be frank: contempt proceedings taken in recent years have been (in my humble view) most ill-advised, they have stultified useful criticism and suggestions for fear of offending the sensitivity of the Court. We are now living under the shadow of what is popularly regarded as a judicial regime, which cannot countenance any criticism against itself. This perception is erroneous — as today’s function discloses. But this is the popular conception of people like Arundhati Roy (and she has many sympathizers). We must work to change this perception.

Judges like to quote — and Supreme Court Judges simply love to quote — with approval the celebrated dictum of Lord Atkin; but the trouble is that sometimes they do so while sentencing the contemnor to jail, as Justice Thomas (a fine upright Judge) regrettably did.

The Lord Atkin quote reads:

“The path of criticism is a public way: the wrongheaded are permitted to err therin. … Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

The purple prose (in the speech of the great Lord Atkin) was composed way back in 1936 in an age that was always respectful for those in authority. No longer. I would suggest that the relevant words must now read as follows:

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny of outspoken comments of ordinary men.”

The word “respectful” stands deleted – it is too vague, and too nebulous.

It is this concept of respect (or disrespect) that recently occasioned in one of our Courts a sorry spectacle when a party in person who raised his voice when arguing (as we advocates also sometimes do) being physically and forcibly removed from the precincts of the Court room. In all my career of 53 years at the Bar I have never seen this happen before and hope we will never see this happen again. We lawyers often give cause for provocation, and we lawyers are perhaps the most guilty; but both sane and the not-so-sane are frequent visitors to Courts of law in this country as in many others: a little tact can often save the day.

It is recorded in the memoirs of Sergeant Sullivan — leading counsel in the Irish Courts of old — that a particular disgruntled litigant came into Court every single day and went to each and every Courtroom, disturbing the work of the Judges by interjecting and asking permission “to keep his hat on”. He had a psychological fixation that the top half of his head had been removed and since his brain would be exposed to the elements he had to cover his head! The Judges were sometimes nasty and rude to him. But ultimately the Chief Justice resolved all these problems by a single expedient. He administratively ordered that when the lists were read out in each court every single morning “so-and-so versus so-and-so, so-and-so versus so-and-so,” at the end of the list Court Master would say, “… and Mr. Murphy may keep his hat on”!

When Professor Allan Dershowitz, a distinguished lawyer and a professor of the Harvard Law School, said that the decision in Bush v. Gore was a “corrupt” decision — mark the words “corrupt” — he was not hauled up for contempt. His comment was outspoken – but certainly not respectful. Yet the Supreme Court of the US suffered him to say so.

I would respectfully suggest that Judges whether of this Court or of High Courts are not fragile flowers that wilt either in the heat of argument or in the heat of criticism, howsoever trenchant and caustic. The contempt power should not be used to discipline either the lawyer, or the press or the public.

Because of the vagueness of the contours of the contempt jurisdiction the power to punish for scandalizing the Court or the administration of justice (a topic on which everyone must be entitled to comment upon and criticize) must never be invoked in my humble opinion by a single Judge or even a Bench of two Judges: it must always be exercised in the Court of the Chief Justice by a Bench of at least five Judges — both in the High Courts and in the Supreme Court. Because when Judges speak in contempt cases they speak for the Court and it is important that what they say is representative of the thinking in the Court as a whole.

And most importantly — the power to commit for contempt should never be conferred on Commissions or Tribunals even if they are manned by retired Judges of the highest Court. Judges, when they retire, love to have the full panoply of power which they enjoyed as sitting Judges. The contempt of Court power is too serious and fraught with too many grave consequences to be left to ad hoc institutions, howsoever important, except the established High Courts and the Supreme Court of India. Even if so conferred on tribunals, since they are not “Courts”, any criticism of the Members of such tribunal cannot, in my opinion, have the protection of Article 19(2).

If I have been too heavy with the black brush, Chief Justice, I do apologize. But you can never make suggestions unless you are both frank and critical.

Lest I be misunderstood, in conclusion, let me say that I have consistently practiced in this Court longer than almost anyone today at the Bar — ever since the year 1972. And I can and do frankly say that I am proud of the Judges of this Court, both past and present. Whether some of us are critical of this or that judgment does not at all deviate from the fact that we members of the Bar are truly appreciative of the collective contribution of the Judges of this Court: they have kept all politicians, lawyers and the public in place just as they have kept all governments (Central and State) in place — and above all and most importantly they have kept the country together. If there is one outstanding feature of our written Constitution which is truly a basic feature it is the concern of the Founding Fathers for the unity of India.

I would like to end this lecture by citing two passages from two cases that I appeared in — in the first I won and in the second I lost.

In the case in which I won (the case of Jehovah’s Witnesses in the year 1987) I believe that the judgment on freedom of conscience of citizens — a fundamental right guaranteed under Article 25 of the Constitution — was a truly inspiring one, whether you agree with the ultimate verdict or not. It was a triumph for individual liberty. But what I liked most about this case was the concluding part of the judgment of Justice Chinappa Reddy who spoke for the Court. He wrote:

“We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”

Whenever I read this passage I think of what a fine manifesto this would make for a truly secular political party.

The second passage occurs in a case in which my client was recently the loser in June 2004. I cite it to show how conscious the Judges of this Court are to the constitutional scheme of things — to the great Federal structure of our Constitution. Justice Ruma Pal speaking for herself (and Justice P Venkatarama Reddi) concluded the judgment in the SYL Canal case with these ringing words:

“We conclude this chapter with a reminder to the State of Punjab that ‘Great States have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.’”

The quote was most appropriate — taken from a Judgment of the year 1910 of the great Justice Holmes in a suit between the then two warring States of the American Union — the Commonwealth of Virginia and the State of West Virginia (55 L.Ed. 353). The words were true when they were uttered in 1910; they are equally apposite and relevant when repeated in India in the year of grace 2004.

With these words I salute the Court in which I have continuously practiced for over 32 years — a Court over which Chief Justice Lahoti has now the privilege to preside. He is taking his duties of high office very seriously and all of us members of the Bar must support him in his endeavour to uphold the values of this great institution in which we practise: the Supreme Court of India.

ENDNOTES

* Senior Advocate, Supreme Court of India; President, Bar Association of India;
[1] I recall when I was practicing in Bombay, the great International Trade Mark expert Mr. Blanco White had been invited by Mr. K. Shavakshah, an expert in Indian Trade Mark Law to lead him in a Trade Mark Case - Mr. Blanco White appeared with permission of the Chief Justice. In the evening at a reception given for him Mr. Blanco White commented upon the accuracy of Halsburys Laws of England in all its editions. He said he had written the entire trade mark section and submitted it to the Lord Chancellor Lord Simonds who was the Editor of the 3rd Edition of Halsbury. Couple of weeks later he got a telephone call from the Lord Chancellor’s office asking him to pop in. Lord Simonds pointed out to Blanco White that two passages in his text were not supported by the cases cited. Blanco White found that the Lord Chancellor was right and he was wrong. He made the requisite correction. Such scholarship is rarely seen these days.

Democracy and the election process .......By Shree V.R. Krishna Iyer

Substantial reforms to the system of elections are needed to give every qualified voter an effective opportunity to cast his or her vote freely and fearlessly. Some tentative ideas.

Class-dominated, communally charged, lucre-lavished elections, which grant adult suffrage but nominally, defile and dilute to the point where democracy may well vanish. The Indian Republic has a phraseologically proletarian, compassionately profound tryst with a socialist, secular, egalitarian destiny. But the have-nots are rapidly losing faith in the representative pretence of popular government. The millions of people who make up the weaker sections have no voice or spac e in state power. The billionaires who are the foreign and native “proprietariat,” manipulate the major political parties through the media and with money power. Through mega-propaganda, political pressure, and mafia-operated minimal votes, they rule the state and run its instrumentalities.

This is not government by the people. If adult suffrage and its majority presence through the polls are to be a reality, considerable legal and strategic changes are necessary with accent on the weaker sections. Our colossal system is extravagantly expensive. It alienates the indigent and the backward from candidature or choice of candidates or decisive voting influence. The democratic drapery of our Constitution stands shrunken, with the commitment to Swaraj, national unity, and patriotic fraternity eclipsed. What prevails is tycoon raj and foreign investment craze, five-star lifestyle addiction, captured by the west-intoxicated culture of the exploitative creamy layer with a capitalist kink.

A transformation of our social order, true to the vision of the Constitution, is the dynamic mandate in election jurisprudence. Radical ballot operations through cost-free facilitatory projects are essential. To give every qualified voter an effective opportunity to cast his or her ballot freely and fearlessly, substantial reforms have to be wrought.

To begin with, the very composition and appointment of the Election Commission must reflect the independence, authority, and functional competence of the instrumentality, which should enjoy plenary power to direct and determine every issue relating to the nation’s elections.

The present provision regarding the removal of the Chief Election Commissioner equates him or her with a judge of the Supreme Court. But the appointment is by the President of India, which means it is by the Prime Minister. If the appointment of the Election Commission is by a political body like the Union Cabinet, its freedom of operation is prone to biases. Its decisional impartiality will be a dubious expectation and so too its functional neutrality. Hence it is only fair that the Chief Election Commissioner and the other members of the Election Commission are chosen by a high-level committee that includes the Chief Justice of India, the Leader of the Opposition (in the Lok Sabha), the Speaker, and the Vice-President. When the Commission acts with arbitrary theatricality or political partiality, correctional jurisdiction must be vested pro tem in a body comprising the Chief Justice, the Comptroller and Auditor General, and the head of the Union Public Service Commission. These are tentative ideas, not final assertions.

The representative credentials of the MLA, the MP, and the Legislature itself demand effective strategies whereby every suffrage holder is able to exercise his or her ballot with facility. But many may be in hospitals, under judicial remand, detained without trial, and so on. They should not forfeit their ballot since they are faultless on this count. So the Returning Officer must provide mobile polling officers who collect ballots from such handicapped voters. The categories that should be afforded this facility should be determined on the basis of local conditions, physical disabilities, and other situations. The focus is on every voter using his ballot. Voting is a duty, and wilful default must be made an offence.

If the constituency is to be heard in the House, the winner must enjoy the support of at least 50 per cent of the votes polled. Every poll, to be authentic, must in the final count by the Returning Officer disclose at least 75 per cent of the total number of voters in the constituency who have participated. If the figure is less than that, a fresh poll should be held within 10 days. If there is still deficiency, the votes polled will be treated as sufficient.

The Commission must have special police officers to invigilate compliance by parties of the rules and regulations to obviate corruption, extravagance, commercialisation, communal canvassing, bribery, and so on.
Proportional representation

In this context, political pundits and constitutional jurists may well consider the use of the system of Proportional Representation (P.R.) as against the first-past-the-post system that India has adopted. The advantage of P.R. is that every party securing a certain percentage of votes will have a voice in governance. P.R. ordinarily means “any system of voting designed to ensure that the representation of voters is in proportion to their numbers.”

In the list system, the number of candidates on a party’s list who are elected depends on the proportion of votes they receive in national elections. In the single transferable vote system, votes are cast in multi-member constituencies. An ordered preference for all the candidates can be expressed on the ballot paper, votes being transferrable from one candidate to another to enable them to gain the necessary quota to be elected. Most West European countries (but not the U.K.) employ the P.R. system. The case against it is that it produces unstable coalitions, and breaks the bond between MPs and their constituencies.

In order to accommodate P.R., the basic structure of our Constitution may require fundamental changes since the Cabinet system with a ceremonial President proceeds on a different jurisprudential foundation. A national debate must precede the P.R. project being considered.

Our constituencies are large but our people are poor. Therefore, certain concessions and facilities must be made to enable the poorer sections to participate in the elections. Free nominations without deposit in proven cases of impecunious candidates must be provided. Returning Officers must have the discretion to provide free transport to the polling booths. Humanism is the justification for many ameliorative methodologies favouring the have-nots and the marginalised. If every human voice has a democratic right it is fundamental that provisions are made to convert every person into a governor of the country.

Speaker Somnath Chatterjee did emphasise the need for the right to recall being part of election jurisprudence. Such a provision worked well in the Soviet Union. Of course, elaborate provisions to forbid misuse and to facilitate fair exercise should be made. There should also be a provision compelling the winning candidates periodically to report to the constituency the work done by him or her and the readiness to take measures to remedy the grievances of the people. This sense of accountability must be given legal shape, and censure in case of default must be visited according to due process.

There are other important innovations, especially to make elections clean, candidate-competent, and incorruptible. Invigilation is important from the beginning to the end of the election process. A country’s administration, socialist, secular, and democratic, must be reflected in the election process.
(Courtesy : - The Hindu)

An open letter to Commissioner of the Municipal Corporation of Greater Mumbai (MCGM) Mr. J. Pathak....

Dear Mr. Pathak,

You are well aware that the motto of Municipal Corporation of Greater Mumbai is “Yato Dharmastato Jaya” (Sanskrit) or, Where there is Righteousness, there shall be Victory.

Also, as per your MCGM’s self-proclamation, The MCGM is veritably the 'cradle of local self-governance in India'. It embodies the principle of democracy of 'governance of the people, by the people and for the people'. Through the multifarious civic and recreational services that it provides, the MCGM has always been committed to improve the quality of life in Mumbai.

On 30th June, 2007, the Municipal Corporation of Greater Mumbai has once again reinstated itself as the worst possible civic body when it comes to disaster management. The reminiscences of 26th July, 2005 are still vivid in the minds of every one of us. Thousands of schoolchildren were stranded due to flooding and could not reach home for up to 18 hours. The subsequent two days were declared as school and college holidays by the state government. The city region and the suburbs received 944 mm (37.2 inches) (the city and suburbs make up the metropolis). Adding to the chaos was the lack of public information.

Large slum colonies have encroached upon the storm water drains and the Mithi river, which is Mumbai's main river. This resulted in to massive disaster in areas like Kalina and Kurla in 2005. Mithi-river was visited by most of the national as well as state leaders of every party and it was suddenly in the limelight. Last year, just before the monsoon, the Chief Mister proudly announced along with the then MCGM Commissioner Mr. Johnny Joseph that the widening of Mithi-river was complete and Mumbai was ready for any deluge with a “proficient” disaster management of MCGM. But in the end it was just a hoax.

But the point for stoic reflection is the lack of infrastructure and preparedness which has wrecked the life of every citizen of Mumbai during the deluge, which is no longer an amusement for Mumbai since July, 2005 and slowly we are getting use to these inundations every year.

It was believed that the Municipal Corporation of Greater Mumbai was caught unawares on 26th July, 2007 and it uses this garb to hide itself from the embarrassment of its petulant lack of vigilance for a situation like deluge demands. It was symbolized as ‘Vis Major’ which was literally impossible to anticipate.

Now, let us see some historical facts regarding rainfalls in Mumbai. An analysis of the probability of such extreme events and their expected return period based on historical data going back to 1886 for Colaba and 1957 for Santa Cruz reveals that in any year, the probability of 24-hr rainfall exceeding 20 cm is 50% for Santa Cruz and 33% for Colaba. The return period for a 20 cm rainfall over Mumbai is 2 to 3 years (Shyamala, 2005).

On 5 July 1974, Mumbai had received 58 cm in a single monsoon day and the city had taken it in its stride. Just five years ago, on 13 July 2000, Mumbai had recorded exceptionally heavy rains: Vasai 49, Thane 45, Santa Cruz 37 and Colaba 25 cm.

This makes it clear that it was not the rainfall, but the inundation, that was truly unprecedented. Never before perhaps had the metropolis experienced anything like it. Suburban trains normally running at intervals of 3 minutes, came to a grinding halt and 150,000 commuters including schoolchildren got instantly stranded at railway stations. Buses were unable to ply and the roads were bursting to capacity with stagnant northbound traffic. Land lines, mobile phone services and power supply went dead in many areas. Highways connecting the city got blocked and the airport had to be closed. The island city was really marooned.

Had Mumbai received the rainfall of 94.4 cm in a day a century ago, the severity of problems would surely have been much less. The population of Greater Bombay, now called Brihan Mumbai, was less than a million at the beginning of the last century. The mid-century figure was around 3 million. By 2001, the population had grown to almost 12 million. The city has risen vertically, open spaces have dwindled, the arterial roads cannot be widened any further, smaller roads have become car parks, and the drainage systems cannot keep pace with the ever-increasing needs of the metropolis. Many people are literally living on the edge, in areas that are known to be prone to landslides. (Courtesy: IWRS News Letter - November 2005)

Many different reasons have been ascribed to the Mumbai flooding of 26 July 2005. The two main causes cited are: (1) the uncontrolled urbanization of north Mumbai and the destruction of mangroves, and (2) the inadequacy of the existing drainage system. Some of the arguments, and opinions expressed in the media, are qualitative in nature and based on what has been seen to happen. They may even be valid, but they need a critical and objective examination by experts before firm conclusions can be drawn. It is evident that in the process of housing construction and setting up of industries, the waterways that allow the accumulated rain water to drain out have been drastically reduced.

What is, however, debatable is the destruction of mangroves being made out as one of the factors responsible for flooding. There is no doubt that mangroves serve as a vital link in the ecological chain, acting as a buffer between land and ocean, and that destruction of mangroves will disturb the ecological balance. What needs to be considered in detail is the question whether mangroves, while protecting the coastal belts from the impact of waves, could as well impede the outflow of water from the land. Mangrove ecosystems which exist along the Mithi River and Mahim Creek are being destroyed and replaced with construction. Hundreds of acres of swamps in Mahim creek have been reclaimed and put to use for construction by builders. These ecosystems serve as a buffer between land and sea. It is estimated that Mumbai has lost about 40% of its mangroves between 1995 and 2005, some to builders and some to encroachment (slums). Sewage and garbage dumps have also destroyed mangroves. The Bandra-Kurla complex in particular was created by replacing such swamps. The Environment Ministry of the Government of India was informed in the early 1990s that sanctioning the Bandra-Kurla complex (a commercial complex in northern Mumbai) was leading to disaster. No environment clearance is mandatory for large urban construction projects in northern Mumbai. Officials in the environment ministry claimed that it was not practical to impose new guidelines with retrospective effect "as there are millions of buildings".

Antiquated drainage system is one of the prime reasons for these inundations. The present storm-water drainage system in Mumbai was put in place in the early 20th century and is capable of carrying only 25 millimeters of water per hour which was extremely inadequate on a day when 944 mm of rain fell in the city. The drainage system is also clogged at several places.

Only 3 'outfalls' (ways out to the sea) are equipped with floodgates whereas the remaining 102 open directly into the sea. As a result, there is no way to stop the seawater from rushing into the drainage system during high tide.

In 1990, an ambitious plan was drawn to overhaul the city's storm water drainage system which had not been reviewed in over 50 years. A project costing approximately 600 crore rupees was proposed by UK based consultants hired by the Brihanmumbai Municipal Corporation to study the matter. Implementation of the project would have ensured that rainwater did not flood the streets of Mumbai. The project was planned to have completed by 2002 and aimed to enhance the drainage system through larger diameter storm water drains and pipes, using pumps wherever necessary and removing encroachments. The project, if implemented would have doubled the storm water carrying capacity to 50 mm per hour. The BMC committee rejected the proposed project on the grounds that it was "too costly".

Providing protection from drainage congestion is the responsibility of civic bodies or local authorities which is MCGM in this particular case. Besides the characteristics of the rain storm, many other factors like proximity to rivers and ocean, local topography, traffic patterns, drainage design, housing, population density, all influence the severity of drainage congestion. A vital but tricky consideration in the design of drainage systems is the return period of the “most extreme” rainfall events. Usually an optimum balance has to be struck between over-estimating and under-estimating the risks involved and a major deciding factor is the cost. Population growth and urban development over say the next 100 years are also not easy to visualize and the choice of future projections will have its own impact on the design and cost.

River floods can be predicted because there is considerable time lag between the occurrence of heavy rainfall in the upper catchments and the consequent build-up of the flood flow in the river, and its travel to a downstream area. Such a lead time is not available in case of drainage congestion caused by local rainfall. Also, the propagation of a flood wave in a river channel is easier to compute. Mathematical or physical modeling of city drainage is, from a hydraulics point of view, a far more complex problem. Also required is a parallel system for quantitative prediction of the rainfall amount and rate on a scale that will match the scale of the hydraulic model. As of today, the state of art in these areas is rather primitive. (Courtesy: IWRS News Letter - November 2005)

Two thousand years ago, a great Teacher narrated a parable which made a comparison between wise and foolish builders. The wise person built his house upon a rock while the foolish one built his house on sand. Then the rains came down and the floods went up. The house on the rock firmly withstood the torrents, while the house on the sand came crashing down.

In today's world, there can be no argument against development. No one can be denied the right to a better living. But urban growth has to be controlled and planned on the strong foundations of wisdom, foresight and discipline. Otherwise more disasters may be just waiting to happen. With an annual budget of almost 12,000 Crores, we sincerely hope that Municipal Corporation of Greater Mumbai (MCGM) will give us a deluge-free Mumbai and not a Shanghai.

Yours Truly,
For Every Citizen of Mumbai,

Sandesh R. Shukla.